71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
 
SA to SB 529
 
LC 2397/SB 529-1
 
                      SENATE AMENDMENTS TO
                         SENATE BILL 529
 
By COMMITTEE ON NATURAL RESOURCES, AGRICULTURE, SALMON, AND WATER
 
                            April 16
 
  On page 1 of the printed bill, line 3, delete '196.630' and
insert '196.692'.
  Delete lines 5 through 30 and delete pages 2 and 3 and insert:
  '  { +  SECTION 1. + } ORS 196.692 is amended to read:
  ' 196.692.  { + (1) + } The Division of State Lands shall adopt
rules to carry out the provisions of ORS 196.668 to 196.692,
196.800, 196.810, 196.825, 196.830, 196.850 to 196.860, 196.885,
196.905, 197.015, 197.279, 215.213, 215.283, 215.284, 215.418 and
227.350.  { +
  ' (2) Rules adopted pursuant to subsection (1) of this section
shall include rules governing the application for and issuance of
permits to remove material from the beds or banks of any waters
of this state or to fill any waters of this state including, but
not limited to, clear and objective standards and criteria for
determining whether to grant or deny a permit. + }
  '  { +  SECTION 2. + } 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 with the protection, conservation and
best use of the water resources of this state as specified in ORS
196.805.
  ' (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 would not unreasonably
interfere with the paramount policy of this state to preserve the
use of its waters for navigation, fishing and public recreation.
  ' (3) In determining whether or not a permit shall be issued,
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 - }   { + request comment from + } 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 - }   { + 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 - }   { + the director shall:
  ' (a) Determine whether an application is complete within 40
days from the date the division receives the application. If the
director determines that an application is complete except for
payment of the fee due pursuant to ORS 196.815, the director
shall notify the applicant of the amount due and, upon receipt of
the fee, may distribute the application for comment pursuant to
subsection (5) of this section. If the director determines that
the application is not complete, the director shall notify the
applicant in writing that the application is deficient and
explain, in the same notice, the deficiencies.
  ' (b) Issue a final decision on the issuance of a permit within
90 days after the date the director determines that the
application is complete unless:
  ' (A) An extension of time is granted under subsection (9)(b)
of this section; or
  ' (B) The applicant and the director agree to a longer time
period + }.
  ' (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
 { +  subsection (5) of + } 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
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.
  '  { +  (10) In determining whether to issue a permit, the
director may consider only standards and criteria in effect on
the date the director receives the completed application.
  ' (11) As used in this section:
  ' (a) 'Applicant' means a landowner or person authorized by a
landowner to conduct a removal or fill activity.
  ' (b) 'Completed application' means a signed permit application
form that contains all necessary information for the director to
determine whether to issue a permit, including:
  ' (A) A map showing the project site with sufficient accuracy
to easily locate the removal or fill site;
  ' (B) A project plan showing the project site and proposed
alterations;
  ' (C) The fee required under ORS 196.815;
  ' (D) Any changes that may be made to the hydraulic
characteristics of waters of this state and a plan to minimize or
avoid any adverse effects of those changes;
  ' (E) If the project may cause substantial adverse effects on
aquatic life or aquatic habitat within this state, documentation
of existing conditions and resources and identification of the
potential impact if the project is completed;
  ' (F) An analysis of alternatives that evaluates practicable
methods to minimize and avoid impacts to waters of this state;
  ' (G) If the project is to fill or remove material from
wetlands, a wetlands mitigation plan; and
  ' (H) Any other information that the director deems pertinent
and necessary to make an informed decision on whether the
application complies with the policy and standards set forth in
subsections (1) to (5) of this section. + }
  '  { +  SECTION 3. + }  { + The amendments to ORS 196.825 by
section 2 of this 2001 Act become operative July 1, 2002. + }
  '  { +  SECTION 4. + }  { + The amendments to ORS 196.825 by
section 2 of this 2001 Act apply to applications submitted to the
Director of the Division of State Lands on or after the operative
date of section 2 of this 2001 Act. + } ' .
                         ----------