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 2103
A-Engrossed
Senate Bill 208
Ordered by the Senate April 19
Including Senate Amendments dated April 19
Sponsored by Senator MESSERLE, Representative MORGAN;
Representatives BUTLER, CLOSE, GARRARD, JENSON, KING, KRIEGER,
KROPF, KRUSE, LEE, NELSON, SIMMONS, G SMITH, P SMITH, T SMITH,
VERGER, C WALKER, WESTLUND, WILSON, ZAUNER (at the request of
Oregon Farm Bureau)
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.
Specifies that landowners of lands within boundaries of area
subject to water quality management plan are subject to rules
adopted to implement { - and enforce - } plan, not plan
itself.
{ - Directs - } { + Authorizes + } State Department of
Agriculture to adopt rules to implement { - and enforce - }
plan.
A BILL FOR AN ACT
Relating to water quality management plans; amending ORS 568.909,
568.912, 568.915, 568.918, 568.921, 568.930 and 568.933.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 568.909 is amended to read:
568.909. (1) The State Department of Agriculture may describe
the boundaries of agricultural and rural lands that are subject
to a water quality management plan:
(a) Due to a determination by the Environmental Quality
Commission to establish a Total Maximum Daily Load for a body of
water under the federal Water Pollution Control Act (33
U.S.C. 1313);
(b) Due to a declaration of a ground water management area
under ORS 468B.180; or
(c) When an agricultural water quality management plan is
otherwise specifically required by state or federal law.
(2) For an area whose boundaries have been designated under
this section, the department shall develop and carry out a
{ + water quality management + } plan for the prevention and
control of water pollution from agricultural activities and soil
erosion. { + The department shall base + }the plan { - shall
be based - } { + and rules adopted to implement the plan + }
upon scientific information.
SECTION 2. 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 - } { + implement + }a water
quality management plan initiated under ORS 568.909. { + The
rules adopted under this subsection shall constitute the only
enforceable aspects of a water quality management plan. + }
(2) { + Pursuant to rules adopted under subsection (1) of this
section, + } 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 - } { + prevent
and control water pollution from agricultural activities and soil
erosion + }. Such actions may include:
(a) Routine construction, maintenance and clearance of any
works and facility;
(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 - }
{ + rules adopted to implement + }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 3. 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 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 { + or rules adopted under ORS 568.912 + };
and
(b) Whether the landowner is carrying out the required actions.
(2) Prior to general initiation of inspections in an
agricultural water quality management area for compliance with
{ - a water quality management plan - } { + rules + } 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 - } { + of any requirements that may by rule apply to
landowners in the area + }.
SECTION 4. ORS 568.918 is amended to read:
568.918. Upon finding that a landowner in an area subject to a
water quality management plan has failed to perform actions
required by the { - plan - } { + rules adopted under ORS
568.912 + }, the State Department of Agriculture shall notify the
landowner and direct the landowner to perform the work or take
any other actions necessary to bring the condition of the subject
lands into compliance with the { - plan - } { + rules + }
within a reasonable period of time. In all cases, the legal owner
of the property shall also be notified, prior to the assessment
of any civil penalty.
SECTION 5. 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. 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 6. ORS 568.930 is amended to read:
568.930. (1) { + Landowners shall conduct + } all agricultural
activities { - conducted - } on agricultural lands within the
boundaries of an area subject to a water quality management plan
{ - shall be conducted - } in full compliance with the
{ - plan and - } rules implementing the plan and with all the
rules and standards of the Environmental Quality Commission
relating to water pollution control. In addition to any other
remedy provided by law, any violation of those rules or standards
shall be subject to all remedies and sanctions available to the
Department of Environmental Quality or the Environmental Quality
Commission.
{ - (2) Any civil penalty imposed under ORS 568.933 shall be
reduced by the amount of any civil penalty imposed by the
Environmental Quality Commission or the Department of
Environmental Quality for violations of water quality rules or
standards, if the latter penalties are imposed on the same person
and are based on the same violation. - }
{ - (3) - } { + (2) + } The State Department of Agriculture
and the State Board of Agriculture shall consult with the
Department of Environmental Quality or the Environmental Quality
Commission in the adoption and review of water quality management
plans { + and in the adoption of rules to implement the
plans + }.
{ - (4)(a) - } { + (3)(a) + } The Environmental Quality
Commission may petition the State Department of Agriculture for a
review of part or all of any water quality management plan and
rules implementing the plan. The petition must allege with
reasonable specificity that the { - plan or its content is - }
{ + plan or the rules are + } not adequate to achieve compliance
with applicable state and federal water quality standards.
(b) The State Department of Agriculture, in consultation with
the State Board of Agriculture, shall complete its review of a
petition submitted under paragraph (a) of this subsection within
90 days of the date of the filing of the petition for review. The
State Department of Agriculture { - shall - } { + may + } not
terminate the review without the concurrence of the Environmental
Quality Commission unless the department initiates revisions to
the { + rules implementing the + } water quality management plan
that address the issues raised by the Environmental Quality
Commission. { + If the State Department of Agriculture adopts
+ }any revisions { - adopted - } in response to a petition by
the Environmental Quality Commission { + , + }
{ - shall be adopted - } { + the department shall adopt the
revisions + } not later than two years from the date the
Environmental Quality Commission submits the petition, unless the
{ - State - } department { - of Agriculture - } , with the
concurrence of the Environmental Quality Commission, finds
{ + that + } special circumstances require additional time.
{ - (5) - } { + (4) + } A water quality management plan and
rules implementing the plan that pertain to a ground water
management area shall be subject to the coordination requirements
of ORS 468B.162.
SECTION 7. 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 - } { + of lands
within + } 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 - } { + implementing + }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.
(3) The person to whom the notice is addressed shall have 10
days from the date of receipt of the notice in which to make
written application for a hearing before the department.
(4) In imposing a penalty under this section, the department
shall consider the following factors:
(a) The past history of the person 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) { - No - } { + A + } notice of violation or period to
comply shall { + not + } 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) { + The department shall deposit + } 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.
{ + (7) The State Department of Agriculture shall reduce the
amount of any civil penalty imposed under this section by the
amount of any civil penalty imposed by the Environmental Quality
Commission or the Department of Environmental Quality for
violations of water quality rules or standards, if the latter
penalty is imposed on the same person and is based on the same
violation. + }
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