71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
Enrolled
Senate Bill 606
Sponsored by Senator MESSERLE; Senator DUNCAN (at the request of
Oregon Independent Miners)
CHAPTER ................
AN ACT
Relating to scenic waterways; creating new provisions; amending
ORS 390.835; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. 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 dam, or reservoir, or other water impoundment
facility shall be constructed on waters within scenic waterways.
No water diversion facility shall 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
Enrolled Senate Bill 606 (SB 606-A) Page 1
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.
Enrolled Senate Bill 606 (SB 606-A) Page 2
(9)(a) The provisions of this section shall 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 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
Enrolled Senate Bill 606 (SB 606-A) Page 3
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 permitted on waters within
scenic waterways other than recreational placer mining.
(15) No person shall be required to obtain a permit for
recreational prospecting 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 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:
(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;
Enrolled Senate Bill 606 (SB 606-A) Page 4
(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 2. { + Section 3 of this 2001 Act is added to and made
a part of ORS 390.805 to 390.925. + }
SECTION 3. { + In order to make recommendations to better
achieve the objectives and enhance the effectiveness of the
Oregon Scenic Waterways System, the State Parks and Recreation
Department shall complete a review of the system administered
under ORS 390.805 to 390.925, including a review of the studies
pertaining to the effects of recreational placer mining within
scenic waterways. At the request of the State Parks and
Recreation Department, the Division of State Lands, the Water
Resources Department, the State Department of Fish and Wildlife,
the State Marine Board and the Department of Environmental
Quality shall assist in the review. The State Parks and
Recreation Department may also request interested public parties
to assist in the review. + }
SECTION 4. { + Notwithstanding ORS 390.835, a permit or
temporary permit for dredging issued by the Division of State
Lands for the purpose of recreational placer mining within a
scenic waterway is not valid after December 31, 2003, if the
review described in section 3 of this 2001 Act has been completed
and reported to the Seventy-second Legislative Assembly or, if
the review has not been completed and reported to the
Seventy-second Legislative Assembly, after December 31, 2005. + }
SECTION 5. { + 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. + }
Enrolled Senate Bill 606 (SB 606-A) Page 5
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Passed by Senate April 12, 2001
Repassed by Senate May 31, 2001
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Secretary of Senate
...........................................................
President of Senate
Passed by House May 24, 2001
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Speaker of House
Enrolled Senate Bill 606 (SB 606-A) Page 6
Received by Governor:
......M.,............., 2001
Approved:
......M.,............., 2001
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Governor
Filed in Office of Secretary of State:
......M.,............., 2001
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Secretary of State
Enrolled Senate Bill 606 (SB 606-A) Page 7