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 2397
Senate Bill 529
Sponsored by Senator MESSERLE (at the request of Oregon
Association of Realtors)
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.
Requires Director of Division of State Lands to adopt rules
governing application for and issuance of permits to remove
material from beds and banks or fill any waters of this state.
Requires Director of Division of State Lands to issue or deny
permit within 120 days of application. Requires director to use
criteria and standards in effect on date of application in making
determination whether to issue or deny permit.
A BILL FOR AN ACT
Relating to permits issued by Division of State Lands; creating
new provisions; and amending ORS 196.630 and 196.825.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 196.630 is amended to read:
196.630. { + (1) + } Subject to the approval of the State Land
Board, the Director of the Division of State Lands shall adopt
rules according to the provisions of ORS 183.310 to 183.550 to
carry out the provisions of ORS 196.600 to 196.655.
{ + (2) Pursuant to subsection (1) of this section, the
director shall adopt rules governing the application for and
issuance of permits to remove material from the beds or banks of
any waters of this state or fill any waters of this state,
including but not limited to standards that the director will use
in making a determination 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 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 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 { - , - } { + :
(a) + } 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.
{ + (b) The director must issue a final decision on issuance
of a permit within 120 days from the date of application unless
the applicant and 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 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 application is submitted to the director. + }
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. + }
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