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 1816
B-Engrossed
Senate Bill 51
Ordered by the House May 23
Including Senate Amendments dated April 19 and House Amendments
dated May 23
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Joint Interim Committee on
Stream Restoration and Species Recovery)
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.
Modifies State Department of Agriculture authority to require
landowners to perform actions affecting works or facilities on
property within water quality management plan area. Increases
time for landowner to request hearing following receipt of notice
of violation or notice of civil penalty.
Requires State Department of Agriculture to consult
periodically with Department of Justice to ensure compliance with
constitutional provisions regarding searches and seizures. { +
Provides that fees established by State Department of
Agriculture for agricultural water quality management are subject
to legislative approval. + }
A BILL FOR AN ACT
Relating to water quality management plan; creating new
provisions; and amending ORS 568.912, 568.915, 568.921 and
568.933.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 568.912 is amended to read:
568.912. (1) The State Department of Agriculture in
consultation with the State Board of Agriculture may adopt rules
necessary to effectuate a water quality management plan initiated
under ORS 568.909.
(2) The department may require any landowner whose land is
located within an area subject to a water quality management plan
to perform those actions on the landowner's land necessary to
carry out a water quality management plan. Such actions may
include:
{ - (a) Routine construction, maintenance and clearance of
any works and facility; - }
{ + (a) Construction or maintenance of any works or
facilities; + }
(b) Agricultural and cropping practices; or
(c) Any other measure or avoidance necessary for the prevention
or control of water pollution of the waters of the state.
(3) No specific practice may be prohibited under this section
unless the department has a scientific basis for concluding that
the practice is a factor in causing water quality standards to be
exceeded.
(4) A landowner subject to the requirements of a plan may
appeal specific actions required of that landowner by the
department to carry out a plan. The department shall establish by
rule a procedure and criteria for the appeal process.
SECTION 2. ORS 568.915 is amended to read:
568.915. (1) After making a reasonable attempt to notify the
landowner, the State Department of Agriculture or a designee of
the department may { - go upon - } { + enter + } any lands
within the area subject to a water quality management plan for
the purpose of determining:
(a) Those actions that may be required of landowners under ORS
568.900 to 568.933; and
(b) Whether the landowner is carrying out the required actions.
{ + (2) The State Department of Agriculture, or a designee of
the State Department of Agriculture, shall periodically, and in
no event less than once biennially, consult with the Department
of Justice to ensure that the actions of the State Department of
Agriculture taken under this section are consistent with section
9, Article I of the Oregon Constitution, and the Fourth Amendment
to the United States Constitution. + }
{ - (2) - } { + (3) + } Prior to general initiation of
inspections in an agricultural water quality management area for
compliance with a water quality management plan adopted under ORS
568.912, the department shall implement a process to notify the
affected landowners within the boundaries of the area that the
landowners are subject to the requirements of the plan.
SECTION 3. { + The amendments to ORS 568.915 by section 2 of
this 2001 Act apply to searches conducted by the State Department
of Agriculture on or after the effective date of this 2001
Act. + }
SECTION 4. ORS 568.933 is amended to read:
568.933. (1) In addition to any other liability or penalty
provided by law, the State Department of Agriculture may impose a
civil penalty on a landowner in an agricultural or rural area
subject to a water quality management plan for failure to comply
with the requirements of the plan including rules to implement
the plan.
{ - (a) The civil penalty for the first violation shall not
exceed $2,500. Upon a second violation, the department may impose
a civil penalty of not more than $10,000. - }
{ - (b) For the purposes of this section, each day of
violation continuing after the period of time for correction set
by the department shall be considered a separate violation unless
the department finds that a different period of time is more
appropriate to describe a specific violation event. - }
{ - (2) A civil penalty may not be imposed for the first
violation under this section unless the department has notified
the person of the violation and prescribed a reasonable time for
the elimination of the violation: - }
{ - (a) Not to exceed 30 days after the first notice of a
violation; or - }
{ - (b) If the violation requires more than 30 days to
correct, the period of time specified in a plan of correction
found acceptable to the department. - }
{ + (2) The department may not impose a civil penalty on a
landowner for a first violation under this section unless the
department:
(a) Has notified the landowner of the violation in a writing
that describes, with reasonable specificity, the factual basis
for the department's determination that a violation has occurred;
and
(b) Has prescribed a reasonable time for the landowner to
correct the violation that may not exceed 30 days after the first
notice of a violation, unless the violation requires more than 30
days to correct, in which case the department shall specify a
reasonable period of time to correct the violation in a plan of
correction issued to the landowner.
(3) A civil penalty imposed under this section may not exceed:
(a) $2,500 for a first violation; or
(b) $10,000 for a second or subsequent violation.
(4) For purposes of this section, each day of a violation
continuing after any period of time of correction set by the
department is a separate violation unless the department finds
that a different period of time is more appropriate to describe a
specific violation event. + }
{ - (3) - } { + (5) + } The { - person - }
{ + landowner + } to whom { - the notice - } { + a notice of
violation or a notice of civil penalty + } is addressed shall
have { - 10 - } { + 30 + } days from the date of receipt of
the notice in which to make written application for a hearing
before the department.
{ - (4) - } { + (6) + } In imposing a penalty under this
section, the department shall consider the following factors:
(a) The past history of the { - person - }
{ + landowner + } incurring a penalty in taking all feasible
steps or procedures necessary or appropriate to correct a
violation.
(b) Any prior violations of rules, regulations or statutes
pertaining to a water quality management plan.
(c) The gravity and magnitude of the violation.
(d) Whether the violation was repeated or continuous.
(e) Whether the cause of the violation was an unavoidable
accident, negligence or an intentional act.
(f) The violator's efforts to correct the violation.
(g) The immediacy and extent to which the violation threatens
the public health or safety.
{ - (5) - } { + (7) + } No notice of violation or period to
comply shall be required under subsection (2) of this section if:
(a) The violation is intentional; or
(b) The landowner has received a previous notice of the same or
similar violation.
{ - (6) - } { + (8) + } Any civil penalty recovered under
this section shall be deposited into a special subaccount in the
Department of Agriculture Service Fund. Moneys in the subaccount
are continuously appropriated to the department to be used for
educational programs on water quality management and to provide
funding for water quality management demonstration projects.
SECTION 5. { + The amendments to ORS 568.933 by section 4 of
this 2001 Act apply to penalties imposed on or after the
effective date of this 2001 Act. + }
SECTION 6. ORS 568.921 is amended to read:
568.921. The State Department of Agriculture, in consultation
with the State Board of Agriculture, may establish and collect
fees from landowners subject to the requirements of a water
quality management plan adopted under ORS 568.909. The fees shall
not exceed the total cost of developing and carrying out the plan
and shall not exceed $200 annually per landowner. { + Fees
established by the department under this section are subject to
the requirements of ORS 291.055. + } Any fees received by the
department pursuant to this section shall be deposited in the
State Treasury to the credit of the Department of Agriculture
Service Fund. Such moneys are continuously appropriated to the
department for the purpose of implementing ORS 568.900 to
568.933.
SECTION 7. { + The amendments to ORS 568.921 by section 6 of
this 2001 Act apply to fees established on or after the effective
date of this 2001 Act. + }
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