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 1808
B-Engrossed
Senate Bill 172
Ordered by the House May 23
Including Senate Amendments dated April 27 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 Senator-elect Ken Messerle)
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.
Amends removal and fill statutes in event that Division of
State Lands assumes administration of federal dredge and fill
permitting program under Federal Water Pollution Control Act.
Establishes provisions to return to current state permit system
if, after initial assumption, authority to operate federal
permitting program is returned to federal government.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to Division of State Lands permitting authority;
creating new provisions; amending ORS 196.800, 196.810,
196.825, 196.850, 196.895, 196.905, 196.990, 390.835, 421.628
and 459.047; repealing section 2, chapter 45, Oregon Laws 1989;
and declaring an emergency.
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 - }
{ + deposit + } 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) 'Public use' means a publicly owned project or a privately
owned project that is available for use by the public.
(12) '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) '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) '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.
(15) '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) '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 196.810 is amended to read:
196.810. (1)(a) Except as otherwise specifically permitted
under ORS 196.600 to 196.905, { - no - } { + a + } person or
governmental body
{ - shall - } { + may not + } 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), 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) - } { + (b) + } { - No person shall be required
to obtain a permit under paragraph (b) of this subsection for - }
{ + A permit is not required under paragraph (a) of this
subsection for + } prospecting { + or other nonmotorized
activities + } 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 - } { + a particular stream 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) - } { + (a) + } of this subsection.
{ - (d) - } { + (c) + } { - No permit shall be - }
{ + A permit is not + } required under paragraph { - (b) - }
{ + (a) + } of this subsection for construction or maintenance
of fish passage and fish screening structures { + associated
with irrigation ditches or the maintenance of drainage
ditches + } that are constructed, operated or maintained under
ORS 498.311, 498.316, 498.326, 498.351 or 509.600 to 509.645.
{ - (e) - } { + (d) + } Nothing in this section shall limit
or otherwise change the exemptions under ORS 196.905.
{ - (f) - } { + (e) + } 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) - } { + (B) + } 'Prospecting' means searching or
exploring for samples of gold, silver or other precious minerals,
using nonmotorized methods, from among small quantities of
aggregate.
{ - (E) - } { + (C) + } '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 - } { + A governmental
body may not + } 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 - } { + a + } contract, permit or lease may
{ + not + } 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.
SECTION 3. ORS 196.825 is amended to read:
196.825. (1) The Director of the Division of State Lands shall
issue a permit to remove material from the beds or banks of any
waters of this state applied for under ORS 196.815 if the
director determines that the removal described in the application
{ - will not be inconsistent - } { + is consistent + } with
the protection, conservation and best use of the water resources
of this state as specified in ORS { - 196.805 - } { + 196.600
to 196.905 + }.
(2) The director shall issue a permit applied for under ORS
196.815 for filling waters of this state if the director
determines that the proposed fill { + :
(a) + } Would not unreasonably interfere with the paramount
policy of this state to preserve the use of its waters for
navigation, fishing and public recreation { + ; and
(b) Is consistent with ORS 196.600 to 196.905 + }.
(3) In determining whether { - or not a permit shall be
issued - } { + to issue a permit under subsection (1) or (2) of
this section + }, the director shall consider all of the
following:
(a) The public need for the proposed fill and the social,
economic or other public benefits likely to result from the
proposed fill. When the applicant for a fill permit is a public
body, the director may accept and rely upon the public body's
findings as to local public need and local public benefit.
(b) The economic cost to the public if the proposed fill is not
accomplished.
(c) The availability of alternatives to the project for which
the fill is proposed.
(d) The availability of alternative sites for the proposed
fill.
(e) Whether the proposed fill conforms to sound policies of
conservation and would not interfere with public health and
safety.
(f) Whether the proposed fill is in conformance with existing
public uses of the waters and with uses designated for adjacent
land in an acknowledged comprehensive plan and zoning ordinances.
(g) Whether the proposed fill is compatible with the
acknowledged comprehensive plan and land use regulations for the
area where the proposed fill is to take place.
(h) Whether the proposed fill is for streambank protection.
(4) The director may issue a permit for a substantial fill in
an estuary for a nonwater dependent use only if the fill is for a
public use and would satisfy a public need that outweighs harm to
navigation, fishery and recreation and if the proposed fill meets
all other criteria contained in ORS 196.600 to 196.905.
(5) If the director issues a permit, the director may impose
such conditions as the director considers necessary to carry out
the purposes of ORS 196.805, 196.830 and subsections (1) and (2)
of this section. In formulating such conditions the director may
consult with the State Geologist, the State Fish and Wildlife
Director, the State Forester, the Director of the Department of
Environmental Quality, the administrative officer of the Soil and
Water Conservation Commission, the Director of Agriculture, the
State Parks and Recreation Director, the State Marine Director,
the Director of Transportation, the Director of the Economic and
Community Development Department, the Water Resources Director
and affected local governmental units. Each permit is valid only
for the time specified therein. Obtaining a lease from the
Division of State Lands { - shall not - } { + may not + } be
one of the conditions to be considered in granting a permit under
ORS 196.815. The director shall impose, as conditions to any
permit, general authorization or wetland conservation plan,
measures to provide mitigation for the reasonably expected
adverse impacts from project development. Compensatory wetland
mitigation shall be limited to replacement of the functional
attributes of the lost wetland.
(6) Any applicant whose application for a permit has been
denied, or who objects to any of the conditions imposed under
subsections (1), (2) and (5) of this section by the director,
may, within 10 days of the denial of the permit or the imposition
of any condition, request a hearing from the director. Thereupon
the director shall set the matter down for hearing, which shall
be conducted as a contested case in accordance with ORS 183.415
to 183.430, 183.440 to 183.460 and 183.470. After such hearing,
the director shall enter an order containing findings of fact and
conclusions of law. The order shall rescind, affirm or modify the
director's initial order. Appeals from the director's final order
may be taken to the Court of Appeals in the manner provided by
ORS 183.482.
(7) Except for a permit issued under the process set forth in
ORS 517.952 to 517.989, if a decision on issuance of a permit by
the director is delayed for a period exceeding 90 days from the
date of application, a temporary permit shall be issued pending
such final decision.
(8) Permits issued under this section shall be in lieu of any
permit that might be required for the same operation under ORS
164.775, 164.785, 468.010, 468.030 to 468.045, 468.055, 468.060,
468.075, 468.110, 468.120, 468B.005 to 468B.030 and 468B.048 to
468B.085, so long as:
(a) The operation is that for which the permit is issued; and
(b) The standards for granting such permits are substantially
the same as those established pursuant to ORS 164.775, 164.785,
468.010, 468.035, 468.040, 468.055, 468.110, 468.120, 468B.005 to
468B.030 and 468B.048 to 468B.085 to the extent they affect water
quality.
(9)(a) Any agency or other unit of government requested by the
director to comment on an application for a permit under this
section must submit its comments to the director within 45 days
after receiving the request for comment. If an agency or other
unit of government fails to comment on the application within 45
days, the director shall assume the agency or other unit of
government has no objection and shall approve or deny the
application.
(b) Notwithstanding paragraph (a) of this subsection, the
Department of Environmental Quality shall comment to the director
within 75 days after receiving notice required under subsection
(5) of this section unless the director has granted an extension
of time. In no case shall the director grant an extension of time
in excess of one year.
(c) The Department of Environmental Quality { - shall not - }
{ + may not + } subsequently make comments under the Federal
Water Pollution Control Act that differ from those comments made
under paragraph (b) of this subsection without good cause and
without providing the director of the division with notice before
providing those comments.
SECTION 4. ORS 196.850 is amended to read:
196.850. (1) Notwithstanding ORS 196.810, the Division of State
Lands may, by rule, grant general authorization for removal of
material from the bed or banks or the filling of any waters of
the state without a permit from the division if the division
finds that those activities subject to the general authorization
are substantially similar in nature and would cause only minimal
individual and cumulative environmental impacts, and would not
result in long-term harm to water resources of the state. The
division shall condition any such general authorization upon
actions necessary to minimize environmental impacts.
(2) The division shall provide notice of any proposed general
authorization to affected federal and state agencies, local
governments and the public. The notice shall include:
(a) A clear description of the proposal; and
(b) Draft findings and any proposed conditions pursuant to
subsection (1) of this section.
(3) Any person proposing to conduct an action under a general
authorization shall notify the division in writing prior to
conducting { - such - } { + the + } action. { + The person
may not commence the action until the person receives a letter of
authorization from the division.
(4) The requirements of subsection (3) of this section shall be
waived if the Director of the Division of State Lands issues a
general authorization and the authorized activity:
(a) Involves less than 50 cubic yards of material;
(b) Will be conducted during periods that minimize adverse
effects to fish and wildlife in accordance with guidance provided
by the State Department of Fish and Wildlife;
(c) Will not dam or divert a waterway in a manner that
obstructs fish passage or vessel navigation; and
(d) Will not violate water quality standards as established by
the Department of Environmental Quality. + }
{ - (4) - } { + (5) + } The division shall amend or rescind
any general authorization upon a determination that the
activities conducted under the authorization have resulted in or
would result in more than minimal environmental impacts or
long-term harm to the water resources of this state.
{ - (5) - } { + (6) + } The division shall review each
general authorization adopted pursuant to this section every five
years. The review shall include public notice and opportunity
for public hearing. After such review, the division may either
modify, reissue or rescind the general authorization.
{ - (6) - } { + (7) + } In addition to the grounds for
review set forth in ORS 183.400 (4), on judicial review of the
validity of a rule adopted under this section, the rule shall be
reviewable for substantial evidence in the rulemaking record. The
record shall include copies of all documents before the agency
relevant to whether the requirement of subsection (1) of this
section has been met.
SECTION 5. ORS 196.895 is amended to read:
196.895. (1) { + Except as provided in subsection (4) of this
section, + } civil penalties under ORS 196.890 shall be imposed
as provided in ORS 183.090.
(2) The provisions of this section are in addition to and not
in lieu of any other penalty or sanction provided by law. An
action taken by the Director of the Division of State Lands under
this section may be joined by the director with any other action
taken against the same person under ORS 196.860 (1)(f).
(3) Any civil penalty recovered under this section shall be
deposited in the Common School Fund for use by the Division of
State Lands in administration of ORS 196.600 to 196.905, 196.990
and 541.990 and as otherwise required by law.
{ + (4) Notwithstanding any provision of ORS 183.090, any
person having an interest that is adversely affected or aggrieved
by an alleged violation for which civil penalties are imposed
under ORS 196.890 may intervene in a contested case proceeding
pertaining to the imposition of civil penalties under this
section. + }
SECTION 6. 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. - } { + Notwithstanding the exemptions in subsections
(3) to (8) of this section, a permit under ORS 196.600 to 196.905
is required for any fill or removal of material in or from the
waters of this state when:
(a) The fill or removal is a part of an activity whose purpose
is to bring an area of state waters into a use to which it was
not previously subject; and
(b)(A) The flow or circulation of the waters of this state may
be impaired; or
(B) The reach of the waters may be reduced. + }
(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.
(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) - } { + (b) + } Subsurface drainage, by deep
ripping, tiling or moling, on converted wetlands; { - and - }
{ + (c) Maintenance of farm roads, provided that:
(A) The farm roads are constructed and maintained in accordance
with construction practices designed to minimize any adverse
effects to the aquatic environment;
(B) Borrow material for farm road maintenance does not come
from waters of this state unless authorized by the division; and
(C) Maintenance activities are confined to the scope of
construction for the original project; 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) - } { + (10)(a) + } 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 - } { + may not + } apply to any fill or
removal which involves changing an area of wetlands { + or
converted wetlands + } to a nonfarm use.
(6) 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) Nothing in ORS 196.800 to 196.900 applies to removal
or filling, or both, for temporary dams constructed for crop or
pasture irrigation purposes that are less than 50 cubic yards,
provided the following conditions are satisfied:
(a) The removal or filling is conducted during periods that
minimize adverse effects to fish and wildlife in accordance with
guidance provided by the State Department of Fish and Wildlife;
(b) The removal or filling does not jeopardize a threatened or
endangered species or adversely modify or destroy the habitat of
a threatened or endangered species listed under federal or state
law; and
(c) Temporary fills are removed in their entirety and the area
is restored to its approximate original elevation. + }
{ - (7) - } { + (8) + } 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.
{ + (9) Nothing in ORS 196.800 to 196.900 applies to removal
or filling, or both, for the maintenance of access roads
constructed to move mining equipment, subject to the following
conditions:
(a) The access roads are constructed and maintained in
accordance with construction practices that minimize adverse
effects to the aquatic environment;
(b) Borrow material for access road maintenance does not come
from waters of this state unless authorized by the Division of
State Lands; and
(c) Maintenance activities are confined to the scope of
construction for the original project. + }
{ - (8) - } { + (10) + } For the purposes of this section
{ - , 'converted wetland' - } :
(a) { + 'Converted wetland' + } means { + :
(A) + } 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 - }
{ + producing + } an agricultural
{ - commodity - } { + product + } and are managed for that
purpose; { - and - } { + or + }
{ - (b) - } { + (B) + } { - Includes land - } { + Those
areas + } 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.
{ + (b) 'Harvesting' means physically removing crops or other
agricultural products.
(c) 'Plowing' includes all forms of primary tillage, including
moldboard, chisel or wide-blade plowing, discing, harrowing or
similar means of breaking up, cutting, turning over or stirring
soil to prepare it for planting crops or other agricultural
products. 'Plowing' does not include:
(A) The redistribution of soil, rock, sand or other surface
materials in a manner that changes areas of waters of this state
into dry land; or
(B) Rock crushing activities that result in the loss of natural
drainage characteristics, the reduction of water storage and
recharge capability, or the overburdening of natural water
filtration capacity.
(d) 'Seeding' means the sowing of seed or placement of
seedlings to produce crops or other agricultural products. + }
SECTION 7. ORS 196.990 is amended to read:
196.990. { - Violation of ORS 196.810 is a misdemeanor. - }
{ + (1) A person commits the offense of unlawful removal from or
filling of waters of this state if the person knowingly violates
ORS 196.810 or an order issued thereunder, or any rule or
condition of a permit issued under ORS 196.600 to 196.905.
(2) Notwithstanding ORS 161.515, unlawful removal from or
filling of waters of this state is an offense punishable by a
fine of up to $10,000 per day of violation. + }
SECTION 8. ORS 390.835 is amended to read:
390.835. (1) It is declared that the highest and best uses of
the waters within scenic waterways are recreation, fish and
wildlife uses. The free-flowing character of these waters shall
be maintained in quantities necessary for recreation, fish and
wildlife uses. { - No - } { + A + } dam, { - or - }
reservoir { - , - } or other water impoundment facility
{ - shall - } { + may not + } be constructed on waters within
scenic waterways. { - No - } { + A + } water diversion
facility { - shall - } { + may not + } be constructed or used
except by right previously established or as permitted by the
Water Resources Commission, upon a finding that such diversion is
necessary to uses designated in ORS 536.310 (12), and in a manner
consistent with the policies set forth under ORS 390.805 to
390.925. The Water Resources Commission shall administer and
enforce the provisions of this subsection.
(2) Filling of the beds or removal of material from or other
alteration of the beds or banks of scenic waterways for purposes
other than recreational prospecting not requiring a permit shall
be prohibited, except as permitted by the Director of the
Division of State Lands upon a finding that such activity would
be consistent with the policies set forth under ORS 390.805 to
390.925 for scenic waterways and in a manner consistent with the
policies set forth under ORS 196.800 to 196.825 and 196.840 to
196.870 for removal of material from the beds and banks and
filling of any waters of this state. The Director of the Division
of State Lands shall administer and enforce the provisions of
this subsection.
(3)(a) Upon a finding of emergency circumstances, the Director
of the Division of State Lands may issue a temporary permit for
the removal, filling or alteration of the beds or banks within a
scenic waterway. The temporary permit shall include conditions
developed after consultation with the State Department of Fish
and Wildlife and the State Parks and Recreation Department.
(b) As used in this subsection, 'emergency circumstances '
exist if prompt action is necessary to prevent irreparable harm,
injury or damage to persons or property.
(4) Any person adversely affected or aggrieved by the grant or
denial of a permit under subsection (2) or (3) of this section
may appeal in accordance with the procedure set forth in ORS
196.835.
(5) Nothing in ORS 390.805 to 390.925 affects the authority of
the State Fish and Wildlife Commission to construct facilities or
make improvements to facilitate the passage or propagation of
fish or to exercise other responsibilities in managing fish and
wildlife resources. Nothing in ORS 390.805 to 390.925 affects the
authority of the Water Resources Commission to construct and
maintain stream gauge stations and other facilities related to
the commission's duties in administration of the water laws.
(6) Upon a finding of necessity under subsection (1) of this
section, the Water Resources Commission may issue a water right
for human consumption not to exceed .005 cubic feet per second
per household, or livestock consumption uses not to exceed
one-tenth of one cubic foot per second per 1,000 head of
livestock, as designated in ORS 536.310 (12) within or above a
scenic waterway if the Water Resources Commission makes the
following findings:
(a) That issuing the water right does not significantly impair
the free-flowing character of these waters in quantities
necessary for recreation, fish and wildlife.
(b) That issuing the water right is consistent with provisions
pertaining to water appropriation and water rights under ORS
chapters 536 and 537 and rules adopted thereunder.
(c) That construction, operation and maintenance of the
diversion system will be carried out in a manner consistent with
the purposes set forth in ORS 390.805 to 390.925.
(d) If the water right is for human consumption, an additional
finding that:
(A) The applicant cannot reasonably obtain water from any other
source;
(B) Denial of the water right would result in loss of
reasonable expectations for use of the property; and
(C) The system installed to divert water shall include
monitoring equipment to permit water use measurement and
reporting.
(e) If the water right is for livestock consumption, an
additional finding that:
(A) The right is necessary to prevent the livestock from
watering in or along the stream bed;
(B) The applicant cannot reasonably obtain water from any other
source; and
(C) The applicant has excluded livestock from the stream and
its adjacent riparian zone.
(7) In making the findings required under subsection (6) of
this section, the Water Resources Commission shall consider the
existing or potential cumulative impacts of issuing the water
right.
(8) The Water Resources Commission may not allow human
consumption and livestock uses authorized under subsection (6) of
this section in excess of a combined cumulative total of one
percent of the average daily flow or one cubic foot per second,
whichever is less, unless:
(a) The Water Resources Commission, the State Parks and
Recreation Department, the State Department of Fish and Wildlife,
the Department of Environmental Quality and the Division of State
Lands unanimously agree to exceed that amount; and
(b) Exceeding that amount will not significantly impair the
free-flowing character of these waters in quantities necessary
for recreation, fish and wildlife.
(9)(a) The provisions of this section { - shall not - }
{ + do not + } apply to a water right application for the use of
ground water as defined in ORS 537.515, except upon a finding by
the Water Resources Director based on a preponderance of evidence
that the use of ground water will measurably reduce the surface
water flows necessary to maintain the free-flowing character of a
scenic waterway in quantities necessary for recreation, fish and
wildlife.
(b) The Water Resources Department shall review every
application for the use of ground water to determine whether to
make the finding specified in paragraph (a) of this subsection.
The finding shall be based upon the application of generally
accepted hydrogeologic methods using relevant and available field
information concerning the proposed use.
(c) In making the determination required by paragraph (a) of
this subsection, the Water Resources Department shall consider
the timing of projected impacts of the proposed use in relation
to other factors, including but not limited to: Changing climate,
recharge, incidental precipitation, out-of-stream appropriations
and return flows.
(d) If the Water Resources Director makes the finding specified
in paragraph (a) of this subsection, the Water Resources Director
shall issue an order denying the application unless:
(A) Mitigation is provided in accordance with subsection (10)
of this section; or
(B) The applicant submits evidence to overcome the finding
under paragraph (a) of this subsection.
(e) Except as provided under subsection (13) of this section,
if the Water Resources Director does not make the finding
specified in paragraph (a) of this subsection, the Water
Resources Director shall issue an order approving the application
if the application otherwise meets the requirements of ORS
537.505 to 537.795.
(f) A protest of any order issued under this subsection may be
filed in the same manner as a protest on any application for a
right to appropriate ground water.
(g) Each water right permit and certificate for appropriation
of ground water issued after July 19, 1995, for which a source of
appropriation is within or above a scenic waterway shall be
conditioned to allow the regulation of the use if analysis of
data available after the permit or certificate is issued
discloses that the appropriation will measurably reduce the
surface water flows necessary to maintain the free-flowing
character of a scenic waterway in quantities necessary for
recreation, fish and wildlife in effect as of the priority date
of the right or as those quantities may be subsequently reduced.
(h) { - Nothing in this subsection shall - } { + This
subsection does not + }limit the use of ground water for a use
exempted under ORS 537.545.
(10) The Water Resources Commission or Water Resources Director
shall consider mitigation measures and may include mitigation
measures as conditions in any water right permit or certificate
to ensure the maintenance of the free-flowing character of the
scenic waterway in quantities necessary for recreation, fish and
wildlife.
(11) The Water Resources Commission and the Water Resources
Director shall carry out their responsibilities under ORS 536.220
to 536.590 with respect to the waters within scenic waterways in
conformity with the provisions of this section.
(12) As used in this section, 'measurably reduce' means that
the use authorized under subsection (9) of this section will
individually or cumulatively reduce surface water flows within
the scenic waterway in excess of a combined cumulative total of
one percent of the average daily flow or one cubic foot per
second, whichever is less, unless:
(a) The Water Resources Department, the State Parks and
Recreation Department, the State Department of Fish and Wildlife,
the Department of Environmental Quality and the Division of State
Lands unanimously agree to exceed that amount; and
(b) Exceeding that amount will not significantly impair the
free-flowing character of these waters in quantities necessary
for recreation, fish and wildlife.
(13) Before authorizing an appropriation that will reduce
streamflows within a scenic waterway in amounts up to but not
exceeding the amounts described in subsection (12) of this
section, the Water Resources Director shall find:
(a) That the appropriation will not significantly impair the
free-flowing character of these waters in quantities necessary
for recreation, fish and wildlife.
(b) That the appropriation is consistent with provisions
pertaining to water appropriations and water rights under ORS
chapters 536 and 537 and the rules adopted thereunder.
(c) That construction, operation and maintenance of the
appropriation will be carried out in a manner consistent with the
purposes set forth in ORS 390.805 to 390.925.
(14) { - No placer mining shall be - } { + Placer mining is
not + } permitted on waters within scenic waterways { + , + }
other than recreational placer mining.
(15) { - No person shall - } { + A person may not + } be
required to obtain a permit for recreational prospecting { + or
other nonmotorized recreational activity + } resulting in the
fill, removal or other alteration of less than one cubic yard of
material at any one individual site and, cumulatively, not more
than five cubic yards of material from within the bed or wet
perimeter of any single scenic waterway in a single year.
Recreational prospecting shall not occur at any site where fish
eggs are present.
(16) { - No provision of this section shall be construed
to - } { + This section does not + } exempt recreational placer
mining on a scenic waterway, other than recreational prospecting
not requiring a permit, from compliance with the provisions of
ORS 196.800 to 196.825 and 196.840 to 196.870 or rules adopted
pursuant to ORS 196.800 to 196.825 and 196.840 to 196.870.
(17) Recreational placer mining { - , other than recreational
prospecting not requiring a permit, shall not - } { + may
not + }:
(a) Dam or divert a waterway or obstruct fish passage;
(b) Include nozzling, sluicing or digging outside the wet
perimeter of the stream, nor extend the wet perimeter;
(c) Include movement of boulders, logs, stumps or other woody
material from the wet perimeter other than movement by hand and
nonmotorized equipment;
(d) Involve the disturbance of rooted or embedded woody plants,
including trees and shrubs, regardless of their location;
(e) Include excavation from the streambank;
(f) Fail to level pits, piles, furrows or potholes outside the
main channel of the waterway upon leaving the site;
(g) Include operation of a suction dredge without a suction
dredge waste discharge permit from the Department of
Environmental Quality including, but not limited to, a
prohibition against dredging during periods when fish eggs could
be in the dredging site gravel;
(h) Be conducted on federal lands except as allowed by agencies
of the federal government;
(i) Impede boating;
(j) Include operation of a dredge between the hours of 6 p.m.
and 8 a.m. within 500 feet of a residence or within 500 feet of a
campground except within a federally designated recreational
mining site; or
(k) Include operation of a dredge within the marked or posted
swimming area of a designated campground or day use area except
within a federally designated recreational mining site.
(18) As used in this section:
(a) 'Bed' means the land within the wet perimeter and any
adjacent nonvegetated dry gravel bar.
(b) 'Prospecting' means to search or explore for samples of
gold, silver or other precious minerals, using nonmotorized
methods, from among small quantities of aggregate.
(c) 'Recreational placer mining' includes, but is not limited
to, the use of nonmotorized equipment and motorized surface
dredges having an intake nozzle with an inside diameter not
exceeding four inches, a motor no larger than 16 horsepower and a
muffler meeting or exceeding factory-installed noise reduction
standards. 'Recreational placer mining' does not include
recreational prospecting that does not require a permit.
(d) 'Wet perimeter' means the area of the stream that is
underwater, or is exposed as a nonvegetated dry gravel bar island
surrounded on all sides by actively moving water at the time the
activity occurs.
{ - (19) Notwithstanding any other provision of this section,
no permit or temporary permit for dredging issued by the Division
of State Lands for the purpose of recreational placer mining
within a scenic waterway shall be in effect after December 31,
1999, if the review described in section 3, chapter 478, Oregon
Laws 1997, has been completed and reported to the Seventieth
Legislative Assembly or, if the review has not been completed and
reported to the Seventieth Legislative Assembly, after December
31, 2001. - }
SECTION 9. ORS 421.628 is amended to read:
421.628. (1) Notwithstanding ORS 169.690, 195.025, 197.180,
215.130 (4) and 227.286 or any other provision of law, including
but not limited to statutes, ordinances, regulations and charter
provisions, { + and except for permit decisions delegated by the
federal government to the Division of State Lands, + } the
decisions of the Corrections Facilities Siting Authority, if
approved by the Governor, shall bind the state and all counties,
cities and political subdivisions in this state as to the
approval of the sites and the construction and operation of the
proposed corrections facilities. { + Except for those statutes
and rules for which permit decisions have been delegated by the
federal government to the Division of State Lands, all + }
affected state agencies, counties, cities and political
subdivisions shall issue the appropriate permits, licenses and
certificates and enter into any intergovernmental agreements as
necessary for construction and operation of the facilities,
subject only to the conditions of the siting decisions.
(2) Each state or local governmental agency that issues a
permit, license or certificate shall continue to exercise
enforcement authority over the permit, license or certificate.
(3) Except as provided in subsections (4) to (16) of this
section, nothing in ORS 421.611 to 421.630 expands or alters the
obligations of cities, counties and political subdivisions to pay
for infrastructure improvements for the proposed corrections
facilities.
(4) The Department of Corrections shall seek to obtain public
services necessary for the construction and operation of
corrections facilities from a public body providing such
services. The department { - shall not - } { + may not + }
acquire or develop and furnish its own public services under this
section that could be provided by a public body unless the
department concludes that the state can achieve significant cost
savings by doing so.
(5) Upon request of the Department of Corrections, a public
body furnishing public services shall make public services
available to the department that are either necessary for the
construction and operation of a corrections facility or required
by additions to or remodeling of a corrections facility sited or
constructed under ORS 421.611 to 421.630 or any other law. All
rates, terms and conditions of furnishing public services shall
be just, fair and reasonable. A just, fair and reasonable rate
shall assure the public body the recovery of the additional costs
of providing and maintaining the requested service to the
corrections facility, including, but not limited to, feasibility
and design engineering costs, and reasonable capacity
replacement, but { - shall not - } { + may not + } exceed the
public body's actual capital and operating expenses, including
reasonable reserves charged to all ratepayers, for such service.
The public body's rates, terms and conditions shall be
conclusively deemed to be just, fair and reasonable if the
department and public body so agree in writing.
(6) If the Department of Corrections and the public body cannot
agree on the rates, terms and conditions of furnishing necessary
public services to a corrections facility, either the department
or the public body may deliver to the other a notice of request
to mediate any disputed issues, including, but not limited to,
whether the department can achieve significant cost savings to
the state by acquiring or developing and furnishing its own
public services. If either the department or the public body
requests mediation, the other shall participate in good faith in
such mediation. Unless otherwise agreed by the department and the
public body, the mediation shall be concluded within 30 days of
delivery of the notice of request to mediate.
(7) If the mediation fails to resolve the issues in dispute, or
if mediation is not requested by either the Department of
Corrections or the public body, the department and the public
body may agree to submit any disputed matters to arbitration. The
arbitration may be either binding or nonbinding. If the
department and the public body cannot agree on the selection of
the arbitrator and the arbitration rules and procedure, upon
motion directed to the Court of Appeals, the Chief Judge of the
Court of Appeals shall select the arbitrator and decide the rules
and procedure. The arbitrator's decision and award shall be
guided by the standards set forth in this section. The decision
and award of the arbitrator shall be final and binding on the
department and the public body only if they agree to enter into
binding arbitration prior to the initiation of the arbitration.
If the department and public body have agreed to binding
arbitration of disputed issues, either the department or the
public body, if dissatisfied with the arbitrator's decision and
award, may file exceptions in the Court of Appeals within 21 days
of the issuance of the decision and award. Exceptions shall be
limited to the causes set forth in ORS 36.355 (1). If any of the
exceptions requires consideration of facts that do not appear on
the face of the arbitrator's decision and award or is not
stipulated to by the parties, the court may appoint a master to
take evidence and make the necessary factual findings. The Court
of Appeals' decision shall be final and not subject to further
review.
(8) If the Department of Corrections and the public body have
submitted disputed matters to nonbinding arbitration or if the
department and public body have chosen not to submit disputed
matters to arbitration, the department shall issue a preliminary
order to the public body that either concludes that the state can
achieve significant costs savings by acquiring or developing and
furnishing its own public services, or establishes the rates,
terms and conditions upon which the public body shall make
necessary public services available to the department for the
corrections facility. The public body, no later than 15 days
following the department's issuance of its preliminary order, may
contest the preliminary order by filing a written notice to that
effect with the department. The preliminary order shall become
final, binding and conclusive if the public body fails to request
a hearing within the time permitted in this section.
(9) If a hearing is requested, the department shall provide the
public body with an opportunity to be heard and shall issue its
final order upon conclusion of the hearing. The department shall
establish procedures to regulate and provide for the nature and
extent of the proofs and evidence and the method of taking and
furnishing the same in order to afford the public body a
reasonable opportunity for a fair hearing. The procedures shall
ensure that the public body has a reasonable opportunity to place
in the record the information upon which the public body relies
as a basis for its position. The department's order shall be
guided by the standards set forth in this section.
(10) Proceedings for review of the department's final order
shall be instituted when the affected public body files a
petition with the Court of Appeals that meets the following
requirements:
(a) The petition shall be filed within 21 days of issuance of
the final order on which the petition is based.
(b) The petitioner shall serve a copy of the petition by
registered or certified mail upon the Department of Corrections
and the Attorney General.
(11) Within 30 days after service of the petition, the
department shall transmit to the Court of Appeals the original or
a certified copy of the entire record and any findings that may
have been made.
(12) The Court of Appeals shall review the final order of the
Department of Corrections de novo on the record created before
the department. The Court of Appeals' decision shall be final and
not subject to further review.
(13) Proceedings for review in the Court of Appeals under this
section shall be given priority over all other matters before the
Court of Appeals.
(14) The Department of Corrections or other state agency
{ - shall not be - } { + is not + } required to make payments
to the public body for necessary public services to a corrections
facility in excess of funds that are legally available for such
purposes.
(15) { - Nothing in this section shall - } { + This section
does not + } require a public body to furnish public services to
the Department of Corrections for a corrections facility in the
event that the Legislative Assembly fails to make funds available
in an amount sufficient to pay the state's share of costs of such
services as determined under this section.
(16) As used in this section, 'public services' means off-site
infrastructure, including, but not limited to, sewer and water
systems and service, and road improvements.
SECTION 10. ORS 459.047 is amended to read:
459.047. Upon request by a city or county responsible for
implementing a department approved solid waste management plan
which identifies a need for a landfill, and subject to policy
direction by the Environmental Quality Commission, the Department
of Environmental Quality shall:
(1) Assist the local government unit in the establishment of
the landfill including assisting in planning, location,
acquisition, development and operation of the site.
(2) Locate a site and issue a solid waste disposal permit under
ORS 459.205 to 459.385 for a landfill within the boundaries of
the requesting local government unit. Subject to the conditions
set forth in the permit { + and except for permit decisions
delegated by the federal government to the Division of State
Lands + }, any permit for a landfill authorized by the
Environmental Quality Commission under this subsection shall bind
the state and all counties and cities and political subdivisions
in this state as to the approval of the site and the construction
and operation of the proposed facility. { + Except for those
statutes and rules for which compliance decisions have been
delegated by the federal government to the Division of State
Lands, all + } affected state agencies, counties, cities and
political subdivisions shall issue the appropriate permits,
licenses and certificates necessary to construction and operation
of the landfill, subject only to condition of the site
certificate. Each state or local government agency that issues a
permit, license or certificate shall continue to exercise
enforcement authority over such permit, license or certificate.
SECTION 11. { + The amendments to ORS 196.800, 196.810,
196.825, 196.850, 196.895, 196.905, 196.990, 390.835, 421.628 and
459.047 by sections 1 to 10 of this 2001 Act and the repeal of
section 2, chapter 45, Oregon Laws 1989, by section 13 of this
2001 Act become operative on January 2 of the even-numbered year
following the date the United States Environmental Protection
Agency grants authority by letter to the Division of State Lands
to administer permits for the discharge of dredge or fill
materials under section 404 of the Federal Water Pollution
Control Act (P.L. 92-500, as amended) and the Legislative
Assembly approves the grant of authority. + }
SECTION 12. { + (1) The Division of State Lands may take any
action necessary to prepare to fully implement the provisions of
this 2001 Act prior to the operative date of this 2001 Act.
(2) The division shall periodically report to the appropriate
committee of the Legislative Assembly on the status of its effort
to assume authority to administer permits for the discharge of
dredge or fill materials under section 404 of the Federal Water
Pollution Control Act (P.L. 92-500, as amended).
(3) After the Legislative Assembly approves the grant of
authority, the division shall notify the Legislative Assembly
prior to the transfer of authority from the United States
Environmental Protection Agency. + }
SECTION 13. { + Section 2, chapter 45, Oregon Laws 1989, is
repealed. + }
SECTION 14. { + If, after assuming authority to administer
permits for the discharge of dredge or fill materials under
section 404 of the Federal Water Pollution Control Act (P.L.
92-500, as amended), the Division of State Lands seeks to
relinquish the authority granted to the division by the federal
government, the division shall, in compliance with ORS 171.130
and at least two years prior to the anticipated date for
relinquishing the authority, submit to the Legislative Assembly a
proposed legislative measure designed to implement a state
permitting program for the dredging and filling of materials in
the waters of this state. + }
SECTION 15. { + This 2001 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2001 Act takes effect on
its passage. + }
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