71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 3867
House Bill 3813
Sponsored by Representative KROPF (at the request of Oregon
Concrete and Aggregate Producers Association)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Defines prior converted cropland. Exempts prior converted
wetlands from definition of waters of this state. Exempts real
property not considered wetland under certain federal laws from
dredge and fill provisions. Incorporates statutory uses for
farmland into exemption from dredge and fill provisions. Modifies
definition of converted wetland.
A BILL FOR AN ACT
Relating to wetlands; amending ORS 196.800, 196.810 and 196.905.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 196.800 is amended to read:
196.800. As used in ORS 196.600 to 196.905, unless the context
requires otherwise:
(1) 'Channel relocation' means a change in location of a
channel in which a new channel is dug and the flow is diverted
from the old channel into the new channel if more than 50 cubic
yards of material is removed in constructing the new channel or
if it would require more than 50 cubic yards of material to
completely fill the old channel.
(2) 'Director' means the Director of the Division of State
Lands.
(3) 'Division' means the Division of State Lands.
(4) 'Estuary' means a body of water semienclosed by land and
connected with the open ocean within which salt water is usually
diluted by fresh water derived from the land. 'Estuary ' includes
all estuarine waters, tidelands, tidal marshes and submerged
lands extending upstream to the head of tidewater. However, the
Columbia River Estuary extends to the western edge of Puget
Island.
(5) 'Fill' means the total of deposits by artificial means
equal to or exceeding 50 cubic yards or more of material at one
location in any waters of this state.
(6) 'General authorization' means a rule adopted by the
director authorizing, without a permit from the division, a
category of activities involving removal or fill, or both, on a
statewide or other geographic basis.
(7) 'Governmental body' includes the federal government when
operating in any capacity other than navigational servitude, the
State of Oregon and every political subdivision therein.
(8) 'Intermittent stream' means any stream which flows during a
portion of every year and which provides spawning, rearing or
food-producing areas for food and game fish.
(9) 'Material' means rock, gravel, sand, silt and other
inorganic substances removed from waters of this state and any
materials, organic or inorganic, used to fill waters of this
state.
(10) 'Mitigation' means the reduction of adverse effects of a
proposed project by considering, in the following order:
(a) Avoiding the impact altogether by not taking a certain
action or parts of an action;
(b) Minimizing impacts by limiting the degree or magnitude of
the action and its implementation;
(c) Rectifying the impact by repairing, rehabilitating or
restoring the affected environment;
(d) Reducing or eliminating the impact over time by
preservation and maintenance operations during the life of the
action by monitoring and taking appropriate corrective measures;
and
(e) Compensating for the impact by replacing or providing
comparable substitute wetland or water resources. { +
(11) 'Normal circumstances' means circumstances of an area
based on the use of the land in the present and the recent past,
and the land's characteristics.
(12) 'Prior converted cropland' means a wetland that was
drained, dredged, filled, leveled or otherwise manipulated,
including the removal of woody vegetation before December 23,
1985, to produce an agricultural commodity, and that qualifies as
a prior converted cropland under the Food Security Act of 1985,
16 U.S.C. 3821 and 3822. + }
{ - (11) - } { + (13) + } 'Public use' means a publicly
owned project or a privately owned project that is available for
use by the public.
{ - (12) - } { + (14) + } 'Removal' means the taking of
more than 50 cubic yards or the equivalent weight in tons of
material in any waters of this state in any calendar year; or the
movement by artificial means of an equivalent amount of material
on or within the bed of such waters, including channel
relocation.
{ - (13) - } { + (15) + } 'Water resources' includes not
only water itself but also aquatic life and habitats therein and
all other natural resources in and under the waters of this
state.
{ - (14) - } { + (16) + } 'Waters of this state' means
natural waterways including all tidal and nontidal bays,
intermittent streams, constantly flowing streams, lakes, wetlands
and other bodies of water in this state, navigable and
nonnavigable, including that portion of the Pacific Ocean which
is in the boundaries of this state. 'Waters of this state' does
not include the ocean shore, as defined in ORS 390.605, with the
exception of those areas where removal or fill activities are
regulated under a state-assumed permit program as provided in 33
U.S.C. 1344(g) of the Federal Water Pollution Control Act, as
amended. { + 'Waters of this state ' does not include prior
converted cropland. + }
{ - (15) - } { + (17) + } 'Wetland conservation plan' means
a written plan providing for wetland management containing a
detailed and comprehensive statement of policies, standards and
criteria to guide public and private uses and protection of
wetlands, waters and related adjacent uplands and which has
specific implementing measures and which apply to designated
geographic areas of the State of Oregon.
{ - (16) - } { + (18) + } 'Wetlands' means those areas that
are inundated or saturated by surface or ground water at a
frequency and duration sufficient to support, and that under
normal circumstances do support, a prevalence of vegetation
typically adapted for life in saturated soil conditions.
SECTION 2. ORS 196.905 is amended to read:
196.905. (1) Nothing in ORS 196.600 to 196.905 applies to
filling the beds of the waters of this state for the purpose of
constructing, operating and maintaining dams or other diversions
for which permits or certificates have been or shall be issued
under ORS chapter 537 or 539 and for which preliminary permits or
licenses have been or shall be issued under ORS 543.010 to
543.610.
(2) Nothing in ORS 196.600 to 196.905 applies to removal of
materials from the beds or banks or filling of the waters of a
nonnavigable natural waterway, or any portion thereof, in this
state, if:
(a) Such waterway or portion is situated within forestland; and
(b) Such removal or filling is directly connected with a forest
management practice conducted in accordance with ORS 527.610 to
527.770, 527.990 and 527.992.
(3) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, on converted wetlands for { - normal farming
and ranching activities such as plowing, grazing, seeding,
cultivating, conventional crop rotation, harvesting for the
production of food and fiber, upland soil and water conservation
practices or reestablishment of crops under federal conservation
reserve program provisions - } { + uses under ORS 215.213 and
215.283 + }.
(4) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, for the following activities on exclusive farm
use zoned lands:
(a) Drainage or maintenance of farm or stock ponds;
(b) Maintenance of farm roads in such a manner as to not
significantly adversely affect wetlands;
(c) Subsurface drainage, by deep ripping, tiling or moling, on
converted wetlands; and
(d) Any activity described as a farm use in ORS 215.203 that is
conducted on prior converted cropland as described in subsection
(8) of this section, so long as agricultural management of the
land has not been abandoned for five or more years.
{ - (5) The exemption in subsections (3) and (4) of this
section shall not apply to any fill or removal which involves
changing an area of wetlands to a nonfarm use. - }
{ - (6) - } { + (5) + } Nothing in ORS 196.800 to 196.900
applies to removal or filling, or both, for the maintenance or
reconstruction of structures such as dikes, dams, levees, groins,
riprap, tidegates, drainage ditches, irrigation ditches and tile
drain systems, provided that:
(a) The structure was serviceable within the past five years;
and
(b) Such maintenance or reconstruction would not significantly
adversely affect wetlands or other waters of this state to a
greater extent than the wetlands or waters of this state were
affected as a result of the original construction of those
structures.
{ - (7) - } { + (6) + } Nothing in ORS 196.800 to 196.900
applies to removal or filling, or both, for maintenance,
including emergency reconstruction of recently damaged parts, of
currently serviceable roads or transportation structures such as
groins and riprap protecting roads, causeways and bridge
abutments or approaches.
{ + (7) Nothing in ORS 196.800 to 196.900 applies to real
property that would not be considered a wetland under the Food
Security Act of 1985, 16 U.S.C. 3821, or the Federal Water
Pollution Control Act, 33 U.S.C. 1344. + }
(8) For the purposes of this section, 'converted wetland'
{ - : - }
{ - (a) - } means wetlands that on or before June 30, 1989,
have been diked, drained, dredged, filled, leveled or otherwise
manipulated to impair or reduce the flow, circulation or reach of
water for the purpose of enabling production of an agricultural
commodity and are managed for that purpose { + so long as
agricultural management of the land has not been abandoned for
five or more consecutive years between June 30, 1989, and the
date application of this definition is sought. + } { - ; and - }
{ - (b) Includes land that the Natural Resources Conservation
Service of the United States Department of Agriculture, or its
successor agency, certifies as prior converted cropland or farmed
wetlands, so long as agricultural management of the land has not
been abandoned for five or more years. - }
SECTION 3. ORS 196.810 is amended to read:
196.810. (1)(a) Except as otherwise specifically permitted
under ORS 196.600 to 196.905, no person or governmental body
shall remove any material from the beds or banks or fill any
waters of this state without a permit issued under authority of
the Director of the Division of State Lands, or in a manner
contrary to the conditions set out in the permit, or in a manner
contrary to the conditions set out in an order approving a
wetlands conservation plan.
(b) Notwithstanding the permit requirements of this section and
notwithstanding the provisions of ORS 196.800 (5) and
{ - (12) - } { + (14) + }, if any removal or fill activity is
proposed in essential indigenous anadromous salmonid habitat,
except for those activities customarily associated with
agriculture, a permit is required. 'Essential indigenous
anadromous salmonid habitat' as defined under this section shall
be further defined and designated by rule by the Division of
State Lands in consultation with the State Department of Fish and
Wildlife and in consultation with other affected parties.
(c) No person shall be required to obtain a permit under
paragraph (b) of this subsection for prospecting resulting in the
removal from or fill of less than one cubic yard of material at
any one individual site and, cumulatively, not more than five
cubic yards of material within a designated essential indigenous
anadromous salmonid habitat segment in a single year. Prospecting
shall be conducted only within the bed or wet perimeter of the
waterway and shall not occur at any site where fish eggs are
present. Removal or filling activities customarily associated
with mining shall require a permit under paragraph (b) of this
subsection.
(d) No permit shall be required under paragraph (b) of this
subsection for construction or maintenance of fish passage and
fish screening structures that are constructed, operated or
maintained under ORS 498.311, 498.316, 498.326, 498.351 or
509.600 to 509.645.
(e) Nothing in this section shall limit or otherwise change the
exemptions under ORS 196.905.
(f) As used in this section:
(A) 'Bed' means the land within the wet perimeter and any
adjacent nonvegetated dry gravel bar.
(B) 'Essential indigenous anadromous salmonid habitat ' means
the habitat that is necessary to prevent the depletion of
indigenous anadromous salmonid species during their life history
stages of spawning and rearing.
(C) 'Indigenous anadromous salmonid' means chum, sockeye,
Chinook and Coho salmon, and steelhead and cutthroat trout, that
are members of the family Salmonidae and are listed as sensitive,
threatened or endangered by a state or federal authority.
(D) 'Prospecting' means searching or exploring for samples of
gold, silver or other precious minerals, using nonmotorized
methods, from among small quantities of aggregate.
(E) 'Wet perimeter' means the area of the stream that is under
water or is exposed as a nonvegetated dry gravel bar island
surrounded on all sides by actively moving water at the time the
activity occurs.
(2) No governmental body shall issue a lease or permit contrary
or in opposition to the conditions set out in the permit issued
under ORS 196.600 to 196.905.
(3) Subsection (1) of this section does not apply to removal of
material under a contract, permit or lease with any governmental
body entered into before September 13, 1967. However, no such
contract, permit or lease may be renewed or extended on or after
September 13, 1967, unless the person removing the material has
obtained a permit under ORS 196.600 to 196.905.
(4) Notwithstanding subsection (1) of this section, the
Division of State Lands may issue, orally or in writing, an
emergency authorization for the removal of material from the beds
or banks or filling of any waters of this state in an emergency,
for the purpose of making repairs or for the purpose of
preventing irreparable harm, injury or damage to persons or
property. The emergency authorization issued under this
subsection:
(a) Shall contain conditions of operation that the division
determines are necessary to minimize impacts to water resources
or adjoining properties.
(b) Shall be based, whenever practicable, on the
recommendations contained in an on-site evaluation by an employee
or representative of the division.
(c) If issued orally, shall be confirmed in writing by the
division within five days.
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