Chapter 253 Oregon Laws 2003

AN ACT

SB 311

Relating to the administration of state lands; creating new provisions; and amending ORS 98.356, 196.674, 196.800, 196.825, 196.850, 196.905, 196.910, 273.006, 273.041, 273.105, 273.141, 273.161, 273.413, 273.551, 274.005, 274.735, 274.740, 274.780, 274.960, 566.310 and 566.340.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 273.041 is amended to read:

273.041. The [Division] Department of State Lands is created, and consists of the Director of the [Division] Department of State Lands and all officers and employees of the [division] department acting under the State Land Board. Subject to ORS 273.171, the [division] department shall exercise all of the administrative functions exercised by the clerk and other personnel of the State Land Board before January 1, 1968.

SECTION 2. (1) The amendments to ORS 273.041 by section 1 of this 2003 Act are intended to change the name of the Division of State Lands to the Department of State Lands.

(2) For the purpose of harmonizing and clarifying statute sections published in Oregon Revised Statutes, the Legislative Counsel may substitute for words designating the Division of State Lands, wherever they occur in Oregon Revised Statutes, other words designating the Department of State Lands.

SECTION 3. ORS 273.161 is amended to read:

273.161. (1) The State Land Board shall appoint a Director of the [Division] Department of State Lands to serve for a term of four years, subject to removal at the discretion of the board.

(2) The director shall receive such salary as is fixed by the board. In addition to salary, subject to applicable law regulating travel and other expenses of state officers, the director shall be reimbursed for actual and necessary travel and other expenses incurred in the performance of official duties.

(3) The salaries and other expenses of the director and employees of the [Division] Department of State Lands shall be paid out of revenues accruing to the Common School Fund.

SECTION 4. (1) The amendments to ORS 273.161 by section 3 of this 2003 Act are intended to change the name of the Director of the Division of State Lands to the Director of the Department of State Lands.

(2) For the purpose of harmonizing and clarifying statute sections published in Oregon Revised Statutes, the Legislative Counsel may substitute for words designating the Director of the Division of State Lands, wherever they occur in Oregon Revised Statutes, other words designating the Director of the Department of State Lands.

SECTION 5. ORS 98.356 is amended to read:

98.356. (1) The [Division] Department of State Lands shall publish notice of owners’ unclaimed accounts reported under ORS 98.352. The notice shall be published at least twice in a newspaper or other generally circulated periodical published in this state. The [division] department may publish such notices at intervals to locate owners of accounts received under ORS 98.352 (4) in an expedient manner, but shall complete publication of all such accounts within one year of remittance.

(2) The [division] department is not required to publish in such notice any item of less than $100 unless the [division] department deems such publication to be in the public interest.

(3) This section is not applicable to sums payable on traveler’s checks or money orders presumed abandoned under ORS 98.309.

(4) The [division] department shall undertake reasonable efforts to locate owners of unclaimed property reported to the [division] department under ORS 98.352. The costs of such efforts may be deducted from the proceeds that are paid to the owners when and if an owner is located. The [division] department shall specify, by rule, a maximum percentage of costs that may be deducted from a verified claim for unclaimed property.

(5) The [division shall not] Department of State Lands may not disclose to the general public any confidential information provided by the Department of Revenue from taxpayer returns.

SECTION 6. ORS 196.674 is amended to read:

196.674. (1) The [Division] Department of State Lands shall compile and maintain a comprehensive Statewide Wetlands Inventory.

(2) In compiling the Statewide Wetlands Inventory, the [division] department shall develop, by rule, a system for uniform wetland identification, delineation and comprehensive mapping. Initial inventories shall be based upon the National Wetlands Inventory prepared by the United States Department of the Interior, Fish and Wildlife Service. The [division] Department of State Lands shall consult with the public, local governments and affected state and federal agencies concerning the accuracy of the inventory.

(3) The [division] Department of State Lands shall revise the inventory maps as new or more complete information becomes available.

(4) The [division] Department of State Lands shall provide each city and county planning office with copies of the Statewide Wetlands Inventory covering the local jurisdiction.

(5) The [division] Department of State Lands shall provide each state agency with a copy of the inventory upon request.

(6) Copies of the Statewide Wetlands Inventory shall be made available to the general public, through the [division] Department of State Lands, upon payment of a fee to offset administrative and reproduction costs.

(7) A wetland inventory developed by another party may be utilized by the [division] Department of State Lands if it is consistent with standards adopted pursuant to this section, after consulting with the affected local government, and is reviewed and approved by the [division] Department of State Lands as complying with the standards adopted pursuant to subsection (2) of this section.

(8) Nothing in this section shall restrict the regulatory jurisdiction of the [division] Department of State Lands under ORS 196.800 to 196.905.

(9) In compiling and updating the Statewide Wetlands Inventory, the [division] Department of State Lands shall identify opportunities for wetland creation, restoration and enhancement when the information is available.

SECTION 7. 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) “Department” means the Department of State Lands.

[(2)] (3) “Director” means the Director of the [Division] Department 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 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] department, 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 8. ORS 196.800, as amended by section 1, chapter 516, Oregon Laws 2001, 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.

(2) “Department” means the Department of State Lands.

[(2)] (3) “Director” means the Director of the [Division] Department 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 deposit by artificial means 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] department, 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 material in any waters of this state or the movement by artificial means of material 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 9. ORS 196.825 is amended to read:

196.825. (1) The Director of the [Division] Department 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 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] Department of State Lands may not be one of the conditions to be considered in granting a permit under ORS 196.815. The Director of the Department of State Lands 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 of the Department of State Lands, 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, the director shall:

(a) Determine whether an application is complete within 40 days from the date the [division] Department of State Lands 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] 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] Department of State Lands 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 10. ORS 196.825, as amended by section 3, chapter 516, Oregon Laws 2001, is amended to read:

196.825. (1) The Director of the [Division] Department 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 is consistent with the protection, conservation and best use of the water resources of this state as specified in ORS 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 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 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] Department of State Lands may not be one of the conditions to be considered in granting a permit under ORS 196.815. The Director of the Department of State Lands 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, the director shall:

(a) Determine whether an application is complete within 40 days from the date the [division] Department of State Lands 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 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] Department of State Lands 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 11. ORS 196.850 is amended to read:

196.850. (1) Notwithstanding ORS 196.810, the [Division] Department 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] department if the [division] department 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] department shall condition any such general authorization upon actions necessary to minimize environmental impacts.

(2) The [division] department 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] department in writing prior to conducting such action.

(4) The [division] department 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) The [division] department 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] department may either modify, reissue or rescind the general authorization.

(6) 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 12. ORS 196.850, as amended by section 4, chapter 516, Oregon Laws 2001, is amended to read:

196.850. (1) Notwithstanding ORS 196.810, the [Division] Department 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] department if the [division] department 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] department shall condition any such general authorization upon actions necessary to minimize environmental impacts.

(2) The [division] department 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] department in writing prior to conducting the action. The person may not commence the action until the person receives a letter of authorization from the [division] department.

(4) The requirements of subsection (3) of this section shall be waived if the Director of the [Division] Department 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.

(5) The [division] Department of State Lands 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.

(6) The [division] department 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] department may either modify, reissue or rescind the general authorization.

(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 13. ORS 196.905, as amended by section 6, chapter 516, Oregon Laws 2001, is amended to read:

196.905. (1) 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) Subsurface drainage, by deep ripping, tiling or moling, on converted wetlands;

(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] Department of State Lands; 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 (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 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.

(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] Department of State Lands; and

(c) Maintenance activities are confined to the scope of construction for the original project.

(10) For the purposes of this section:

(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 producing an agricultural product and are managed for that purpose; or

(B) 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 14. ORS 196.910 is amended to read:

196.910. The [Division] Department of State Lands shall:

(1) Monitor removal and fill activities, including but not limited to prospecting and placer mining, within designated essential indigenous anadromous salmonid habitat areas to determine the effects of such activities on salmonid spawning and rearing habitat and compile the results in an annual report.

(2) Cooperate with the State Department of Fish and Wildlife and other interested parties to develop and distribute public education and information materials designed to increase understanding and awareness of permit requirements and acceptable removal and fill practices related to prospecting and placer mining.

(3) Report periodically to the Joint Legislative Committee on Land Use on the progress of the [division] Department of State Lands in implementing ORS 196.810.

SECTION 15. ORS 273.006 is amended to read:

273.006. As used in this chapter, unless the context requires otherwise:

(1) “Board” means the State Land Board.

(2) “County recording officer” means the county clerk or other county officer carrying out ORS 205.130 to 205.220.

(3) “Department” means the Department of State Lands.

[(3)] (4) “Director” means the Director of the [Division] Department of State Lands.

[(4) “Division” means the Division of State Lands.]

(5) “Land” includes water, water rights, easements of every nature and all appurtenances to land.

(6) “Material” includes gravel, rock, sand and silt, but does not include hard minerals subject to ORS 274.610, or oil, gas and sulphur subject to ORS 274.705 to 274.860.

(7) “Public land” means any land or improvements thereon owned by the State of Oregon or any agency thereof.

(8) “State land” means public land controlled by the [Division] Department of State Lands.

(9) “Terminal disposition” means the permanent relinquishment by an agency of rights in real property, including, but not limited to, sale, exchange, conveyance, relinquishment of title, or donation.

SECTION 16. ORS 273.105 is amended to read:

273.105. (1) The Distributable Income Account is established within the Common School Fund. The [Division] Department of State Lands shall administer this account in accordance with section 4, Article VIII, Oregon Constitution, and applicable laws.

(2) The following moneys in the Common School Fund shall be credited to the Distributable Income Account:

(a) Moneys received under ORS 390.715 and 390.725 after deducting the administrative costs of the State Parks and Recreation Department.

(b) So much of the interest income derived from investments of the Common School Fund as remains after payment of the expenses of the State Land Board authorized to be paid under subsection (2), section 2, Article VIII of the Oregon Constitution.

(c) So much of the profits derived from the sale of equity investments of the Common School Fund as the State Land Board deems appropriate after payment of the expenses of the State Land Board authorized to be paid under subsection (2), section 2, Article VIII of the Oregon Constitution.

(d) So much of the dividend income derived from investment of the Common School Fund as the State Land Board considers appropriate after payment of the expenses of the State Land Board authorized to be paid under subsection (2), section 2, Article VIII of the Oregon Constitution, with the balance reinvested in principal.

(e) The interest income derived from unclaimed property held by the Director of the [Division] Department of State Lands or deposited in the Common School Fund.

(f) Other moneys received by the [division] Department of State Lands that are required by law to be deposited in the Distributable Income Account.

(3) Losses resulting from the investment in and subsequent sale of equity investments shall be deducted from the Distributable Income Account and credited to the Common School Fund.

(4) All other moneys received by the [division] Department of State Lands shall be credited to the Common School Fund.

(5) The moneys in the Distributable Income Account are appropriated continuously for apportionment according to ORS 327.410.

SECTION 17. ORS 273.141 is amended to read:

273.141. In order to provide the [Division] Department of State Lands with the specialized assistance necessary to its operations and the transaction of its business, and in addition to other agreements that may be entered into under ORS 273.135, the [division] department may enter into written agreements with the state agencies designated in this section for the operation of programs and activities assigned to the [division] department. Subject to final review and approval by the State Land Board:

(1) The State Forestry Department may perform the functions assigned by the board that relate to forest resources.

(2) The [Oregon] State Department of Geology and Mineral Industries may perform the functions of the [division] Department of State Lands that relate to mineral resources.

(3) The Director of Veterans’ Affairs may perform the functions of the [division] Department of State Lands that relate to investment of funds in mortgages secured by real property.

(4) The State Treasurer may perform the functions of the [division] Department of State Lands that relate to investments of funds administered by the [division] Department of State Lands not described in subsection (3) of this section, and that relate to escheated property.

(5) The State Department of Agriculture may perform the functions assigned by the board and the functions pertaining to management and regulation of grazing land and other agricultural lands.

SECTION 18. ORS 273.413 is amended to read:

273.413. (1) The [Division] Department of State Lands may dispose of isolated sections and fragments of sections of state lands which are not suitable for management according to long-range policies of the State Land Board. The proceeds of such sales shall be applied and are continuously appropriated to the [Division] Department of State Lands for the acquisition of lands or other suitable investments as directed by the board in consultation with the Oregon Investment Council.

(2) The proceeds of any sale authorized by subsection (1) of this section shall be deposited in a revolving account in the Common School Fund. The costs of acquisition authorized by subsection (1) of this section shall be charged to the revolving account.

(3) When requested in writing by the [Division] Department of State Lands, the Oregon Department of Administrative Services shall draw a warrant on the Common School Fund in favor of the [Division] Department of State Lands for use as a revolving account. The State Treasurer shall hold the revolving account in special account against which the [Division] Department of State Lands may draw checks.

(4) The [Division] Department of State Lands may use the revolving account for the purposes specified in subsection (1) of this section.

(5) Before disposing of lands described in subsection (1) of this section, the [division] Department of State Lands shall cause owners or lessees of land adjoining the land to be disposed of to be notified of the pending disposition. The notice shall indicate the time and method of sale, the minimum or reserved price, if any, and shall invite the landowners or lessees to participate as a prospective purchaser if the landowner or lessee wishes to do so.

(6) Before purchasing or selling land, the [division] Department of State Lands shall obtain approval of the governing body of the county or counties in which such land is located.

(7) The [division] Department of State Lands shall prepare sales materials, including catalogues of lands available for sale, and may charge a fee for such materials.

(8) This section does not apply to the sale or management of state-owned submerged and submersible lands subject to ORS chapter 274.

SECTION 19. ORS 273.551 is amended to read:

273.551. (1) The [Division] Department of State Lands, as to any land or mineral and geothermal resource rights subject to its jurisdiction and control and without restricting, limiting or repealing any other powers and authority which it has, after consultation with the State Department of Geology and Mineral Industries and with concurrence of any state agency acting for the state with respect to surface rights in the subject land, may execute leases and contracts for the mining of gold, silver, copper, lead, cinnabar, gas and oil, or other valuable minerals or the exploration and development of geothermal resources upon conditions agreed upon by the [division] Department of State Lands and the lessee.

(2) All leases may be without limitation as to time; but the [division] department may cancel any lease upon failure by the lessee to exercise due diligence in the prosecution of the prospecting, development or continued operation of the mine or well, and shall insert in every such lease appropriate provisions for such cancellation.

(3) The authority granted by this section shall include the execution of leases and contracts covering submersible and submerged lands, as defined in ORS 274.005, the leasing of which is not otherwise expressly authorized by statute.

(4) Leases and contracts executed under this section are not sales within the purview of ORS 270.100.

(5) The [division] department may charge a reasonable fee, to be paid by the applicant, for making necessary investigations before the execution of any such lease.

(6) This section does not apply to permits or leases under ORS 274.705 to 274.860.

SECTION 20. ORS 274.005 is amended to read:

274.005. As used in this chapter, unless the context requires otherwise:

(1) “Department” means the Department of State Lands.

[(1)] (2) “Director” means the Director of the [Division] Department of State Lands.

[(2) “Division” means the Division of State Lands.]

(3) “Line of ordinary high water” means the line on the bank or shore to which the high water ordinarily rises annually in season.

(4) “Line of ordinary low water” means the line on the bank or shore to which the low water ordinarily recedes annually in season.

(5) “Land” includes water, water rights, easements of every nature and all appurtenances to land.

(6) “Material” includes gravel, rock, sand and silt, but does not include hard minerals subject to ORS 274.610, or oil, gas and sulphur subject to ORS 274.705 to 274.860.

(7) “Submerged lands,” except as provided in ORS 274.705, means lands lying below the line of ordinary low water of all navigable waters within the boundaries of this state as heretofore or hereafter established, whether such waters are tidal or nontidal.

(8) “Submersible lands,” except as provided in ORS 274.705 means lands lying between the line of ordinary high water and the line of ordinary low water of all navigable waters and all islands, shore lands or other such lands held by or granted to this state by virtue of her sovereignty, wherever applicable, within the boundaries of this state as heretofore or hereafter established, whether such waters or lands are tidal or nontidal.

SECTION 21. ORS 274.735 is amended to read:

274.735. (1) The [Division] Department of State Lands upon application by any person may permit geological, geophysical and seismic surveys, including the taking of cores and other samples for purposes related to exploration for oil, gas and sulphur on lands subject to ORS 274.705 to 274.860. However:

(a) Such permits shall be nonexclusive and shall not give any preferential rights to any oil, gas and sulphur lease.

(b) The [division] Department of State Lands in consultation with the State Department of Geology and Mineral Industries may grant permission for the taking of cores and other samples.

(c) After consultation with the State Fish and Wildlife Commission, the [division] Department of State Lands shall include such rules and regulations in the permit as are necessary to protect the fish and wildlife resources.

(2) Each application under this section must contain at least the following information:

(a) A description of the areas where the applicant proposes to conduct a survey.

(b) The name and address of the applicant.

(c) Such other relevant information as the [division] Department of State Lands requires.

SECTION 22. ORS 274.740 is amended to read:

274.740. (1) Upon compliance of an applicant with ORS 274.735, the [Division] Department of State Lands may issue to the applicant a permit to conduct a geological, geophysical and seismic survey, including the taking of cores and other samples, in areas of the lands subject to ORS 274.705 to 274.860 that are described on the permit. The [division] department may prohibit such surveys on any area if, in consultation with the State Department of Geology and Mineral Industries, it determines that a lease, if applied for, should not be granted as to such areas. The [division] Department of State Lands shall include in a permit conditions and payments proper to safeguard the interests of the state.

(2) Permits issued under this section [shall] may not exceed two years, and may be renewed for like periods upon application to the [division] department and upon showing due compliance with applicable laws and regulations.

(3) The [division] department shall require the permittee to provide the State Fish and Wildlife Commission with complete information with respect to the area or areas of proposed operations, type of exploration and a schedule showing the period or periods during which such explorations will be conducted. Such information shall be treated as confidential unless released by the permittee.

SECTION 23. ORS 274.780 is amended to read:

274.780. (1) The form of lease shall contain, in addition to other provisions deemed necessary and desirable by the [Division] Department of State Lands, after consultation with the State Department of Geology and Mineral Industries, the State Fish and Wildlife Commission and other interested agencies, boards and commissions, the provisions of ORS 274.780 to 274.860.

(2) The form of a permit shall contain, in addition to other provisions deemed necessary and desirable by the [division] Department of State Lands, after consultation with the State Department of Geology and Mineral Industries, the State Fish and Wildlife Commission and other interested agencies, boards and commissions, the provisions of ORS 274.785 (3).

(3) All leases and other instruments required in carrying out ORS 274.705 to 274.860 shall be executed by the [division] Department of State Lands. All bonds, contracts and other instruments required by ORS 274.705 to 274.860 for the protection of the interests of this state and political subdivisions, persons and property therein shall be executed and delivered to the [division] department.

SECTION 24. ORS 274.960 is amended to read:

274.960. As used in ORS 274.960 to 274.985, unless the context requires otherwise:

(1) “Board” means the State Land Board.

[(2) “Division” means the Division of State Lands.]

[(3)] (2) “Submerged land” means land lying below the line of ordinary low water of a body of water in this state.

[(4)] (3) “Submersible land” means land lying between the line of ordinary high water and the line of ordinary low water of a body of water in this state.

SECTION 25. ORS 566.310 is amended to read:

566.310. As used in ORS 566.310 to 566.360,[:]

[(1) “Department” means the Housing and Community Services Department.]

[(2) “Division” means the Division of State Lands.]

[(3)] “secretary” means the Secretary of Agriculture of the United States.

SECTION 26. ORS 566.340 is amended to read:

566.340. Notwithstanding any other provisions of law, the funds and proceeds of the trust assets which are not authorized to be administered by the Secretary of Agriculture of the United States under the provisions of ORS 566.330 shall be received by the [Division] Department of State Lands and by it deposited in the State Treasury in an account, separate and distinct from the General Fund. Interest earned by the account shall be credited to the account. Notwithstanding the provisions of ORS 291.238, such funds are appropriated and may be expended or obligated by the Housing and Community Services Department for the purposes of ORS 566.330 or for use by the Housing and Community Services Department for farmworker housing permissible under the charter of the now dissolved Oregon Rural Rehabilitation Corporation.

SECTION 27. Sections 28 to 30 of this 2003 Act are added to and made a part of ORS chapter 273.

SECTION 28. (1) The Department of State Lands shall create a program whereby the department may enter into agreements with volunteers, businesses and other agencies to allow those parties, on a voluntary basis, to assist in the operation of department programs and to assist in the maintenance of state lands administered by the department. The program shall:

(a) Focus primarily on encouraging and facilitating involvement of participants in the operation of department programs and maintenance of state lands administered by the department and in educational programs on behalf of the department;

(b) Offer opportunities for participants to assist in public information activities; and

(c) Include a recognition element to acknowledge the efforts of participants in the program.

(2) The department shall ensure that participants in the program obtain permission from landowners for access to private property if such access is necessary to perform activities under the program.

(3) An agreement entered into pursuant to subsection (1) of this section shall include, at a minimum:

(a) Identification of the state land where the participant intends to carry out voluntary activities.

(b) Specification of the duties of the participant.

(c) Specification of the responsibilities of the participant, including the responsibility to abide by the rules of the program as adopted by the State Land Board.

(d) The duration of the agreement.

(4) The department may provide supplies, equipment, safety information and assistance to the participants.

(5) The State Land Board may adopt any rules necessary for implementation of the program created under this section.

(6) Under the direction of the board, the Director of the Department of State Lands may encourage and render assistance in the promotion of training programs for volunteers, businesses and other agencies participating in the program created under this section.

(7) As used in this section, “volunteer” includes any person, group of individuals, volunteer group, service club or other entity that is tax exempt under section 501(c)(3) of the Internal Revenue Code.

SECTION 29. (1) In order to further the interpretive and educational functions of state lands in Oregon, the Director of the Department of State Lands may enter into an agreement with a private, nonprofit scientific, historic or educational organization organized solely for the purpose of providing interpretive services for state lands facilities in Oregon.

(2) An organization entering into an agreement with the director under subsection (1) of this section may:

(a) Provide educational or interpretive material for sale at state lands facilities;

(b) Acquire display materials and equipment for exhibits at state lands facilities;

(c) Provide support for interpretive or educational programs at state lands facilities;

(d) Provide support for state lands facility libraries; or

(e) Provide support for other interpretive projects related to a specific state lands facility.

(3) If the director enters into an agreement with an organization under subsection (1) of this section, the Department of State Lands may:

(a) Provide incidental personnel services for the organization’s interpretive program; and

(b) Provide space at a state lands facility for the display and sale of materials provided by the organization.

(4) Any money received from the sale of publications or other materials provided by an organization pursuant to an agreement entered into under this section shall be retained by the organization for use in the interpretive or educational services of the state lands facility for which the organization provides interpretive services.

(5) As used in this section, “state lands facility” includes a recreational, historical, educational, research or scenic attraction owned by or under the control of the State of Oregon and administered by the Department of State Lands.

SECTION 30. The Department of State Lands shall adopt rules to carry out the purposes of section 29 of this 2003 Act. The rules shall include:

(1) Procedures and forms to be used by an organization entering into an agreement with the Director of the Department of State Lands under section 29 of this 2003 Act.

(2) Guidelines for approving the materials an organization proposes to provide or display at state lands facilities.

(3) Provisions for renewing or dissolving an agreement between an organization and the director.

Approved by the Governor June 10, 2003

Filed in the office of Secretary of State June 10, 2003

Effective date January 1, 2004

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