Chapter 738 Oregon Laws 2003
AN ACT
HB 2899
Relating to the environment; creating new provisions; amending ORS 196.600, 196.605, 196.610, 196.615, 196.620, 196.625, 196.635, 196.640, 196.645, 196.650, 196.655, 196.800, 196.805, 196.810, 196.825, 196.835, 468B.300 and 468B.405; and prescribing an effective date.
Be It Enacted by the People of the State of
Oregon:
SECTION 1. ORS 468B.300 is amended to read:
468B.300. As used in ORS 468.020, 468.095, 468.140 (3) and 468B.300 to 468B.500:
(1) “Bulk” means material stored or transported in loose, unpackaged liquid, powder or granular form capable of being conveyed by a pipe, bucket, chute or belt system.
(2) “Cargo vessel” means a self-propelled ship in commerce, other than a tank vessel, of 300 gross tons or more. “Cargo vessel” does not include a vessel used solely for commercial fish harvesting.
(3) “Commercial fish harvesting” means taking food fish with any gear unlawful for angling under ORS 506.006, or taking food fish in excess of the limits permitted for personal use, or taking food fish with the intent of disposing of such food fish or parts thereof for profit, or by sale, barter or trade, in commercial channels.
(4) “Contingency plan” means an oil spill prevention and emergency response plan required under ORS 468B.345.
(5) “Covered vessel” means a tank vessel, cargo vessel,[or] passenger vessel or dredge vessel.
(6) “Damages” includes damages, costs, losses, penalties or attorney fees of any kind for which liability may exist under the laws of this state resulting from, arising out of or related to the discharge or threatened discharge of oil.
(7) “Discharge” means any emission other than natural seepage of oil, whether intentional or unintentional. “Discharge” includes but is not limited to spilling, leaking, pumping, pouring, emitting, emptying or dumping oil.
(8) “Dredge vessel” means a self-propelled vessel of 300 or more gross tons that is equipped for regularly engaging in dredging of submerged and submersible lands.
[(8)] (9) “Exploration facility” means a platform, vessel or other offshore facility used to explore for oil in the navigable waters of the state. “Exploration facility” does not include platforms or vessels used for stratigraphic drilling or other operations that are not authorized or intended to drill to a producing formation.
[(9)] (10) “Facility” means a pipeline or any structure, group of structures, equipment or device, other than a vessel located on or near navigable waters of a state, that is used for producing, storing, handling, transferring, processing or transporting oil in bulk and that is capable of storing or transporting 10,000 or more gallons of oil. “Facility” does not include:
(a) A railroad car, motor vehicle or other rolling stock while transporting oil over the highways or rail lines of this state;
(b) An underground storage tank regulated by the Department of Environmental Quality or a local government under ORS 466.706 to 466.882 and 466.994; or
(c) Any structure, group of structures, equipment or device, other than a vessel located on or near navigable waters of a state, that is used for producing, storing, handling, transferring, processing or transporting oil in bulk and that is capable of storing or transporting 10,000 or more gallons of oil but does not receive oil from tank vessels, barges or pipelines.
[(10)] (11) “Federal on-scene coordinator” means the federal official predesignated by the United States Environmental Protection Agency or the United States Coast Guard to coordinate and direct federal responses or the official designated by the lead agency to coordinate and direct removal under the National Contingency Plan.
[(11)] (12) “Hazardous material” has the meaning given that term in ORS 466.605.
[(12)] (13) “Maritime association” means an association or cooperative of marine terminals, facilities, vessel owners, vessel operators, vessel agents or other maritime industry groups, that provides oil spill response planning and spill related communications services within the state.
[(13)] (14) “Maximum probable spill” means the maximum probable spill for a vessel operating in the navigable waters of the state considering the history of spills of vessels of the same class operating on the west coast of the United States.
[(14)] (15) “Navigable waters” means the Columbia River, the Willamette River up to Willamette Falls, the Pacific Ocean and estuaries to the head of tidewater.
[(15)] (16) “National Contingency Plan” means the plan prepared and published under section 311(d) of the Federal Water Pollution Control Act, 33 U.S.C. 1321(d), as amended by the Oil Pollution Act of 1990 (P.L. 101-380).
[(16)] (17) “Offshore facility” means any facility located in, on or under any of the navigable waters of the state.
[(17)] (18) “Oils” or “oil” means oil, including gasoline, crude oil, fuel oil, diesel oil, lubricating oil, sludge, oil refuse and any other petroleum related product.
[(18)] (19) “Onshore facility” means any facility located in, on or under any land of the state, other than submerged land, that, because of its location, could reasonably be expected to cause substantial harm to the environment by discharging oil into or on the navigable waters of the state or adjoining shorelines.
[(19)] (20) “Passenger vessel” means a ship of 300 or more gross tons carrying passengers for compensation.
[(20)] (21) “Person” has the meaning given the term in ORS 468.005.
[(21)] (22) “Person having control over oil” includes but is not limited to any person using, storing or transporting oil immediately prior to entry of such oil into the navigable waters of the state, and shall specifically include carriers and bailees of such oil.
[(22)] (23) “Pipeline” means a facility, including piping, compressors, pump stations and storage tanks, used to transport oil between facilities or between facilities and tank vessels.
[(23)] (24) “Region of operation” with respect to the holder of a contingency plan means the area where the operations of the holder that require a contingency plan are located.
[(24)] (25) “Removal costs” means the costs of removal that are incurred after a discharge of oil has occurred or, in any case in which there is a substantial threat of a discharge of oil, the costs to prevent, minimize or mitigate oil pollution from the incident.
[(25)] (26) “Responsible party” has the meaning given under section 1001 of the Oil Pollution Act of 1990 (P.L. 101-380).
[(26)] (27) “Ship” means any boat, ship, vessel, barge or other floating craft of any kind.
[(27)(a)] (28)(a) “State on-scene coordinator” means the state official appointed by the Department of Environmental Quality to represent the department and the State of Oregon in response to an oil or hazardous material spill or release or threatened spill or release and to coordinate cleanup response with state and local agencies.
(b) For purposes of this subsection:
(A) “Spill or release” means the discharge, deposit, injection, dumping, spilling, emitting, releasing, leaking or placing of any oil or hazardous material into the air or into or on any land or waters of this state except as authorized by a permit issued under ORS chapter 454, 459, 459A, 468, 468A, 468B or 469 or ORS 466.005 to 466.385, 466.990 (1) and (2) or 466.992 or federal law, or except when being stored or used for its intended purpose.
(B) “Threatened spill or release” means that oil or hazardous material is likely to escape or be carried into the air or into or on any land or waters of this state.
[(28)] (29) “Tank vessel” means a ship that is constructed or adapted to carry oil in bulk as cargo or cargo residue. “Tank vessel” does not include:
(a) A vessel carrying oil in drums, barrels or other packages;
(b) A vessel carrying oil as fuel or stores for that vessel; or
(c) An oil spill response barge or vessel.
[(29)] (30) “Worst case spill” means:
(a) In the case of a vessel, a spill of the entire cargo and fuel of the tank vessel complicated by adverse weather conditions; and
(b) In the case of an onshore or offshore facility, the largest foreseeable spill in adverse weather conditions.
SECTION 2. ORS 468B.405 is amended to read:
468B.405. (1) The Department of Environmental Quality shall assess the following fees on covered vessels and offshore and onshore facilities to recover the costs of reviewing the plans and conducting the inspections, exercises, training and activities required under ORS 468B.345 to 468B.400 on all:
(a) [On all] Cargo and passenger vessels, $48 per trip.
(b) [On all] Nonself-propelled tank vessels, $42 per trip.
(c) [On all] Self-propelled tank vessels of 300 gross tons or less, $42 per trip.
(d) [On all] Self-propelled tank vessels over 300 gross tons, $836 per trip.
(e) [On all] Offshore and onshore facilities, $4,500 per year.
(f) Dredge vessels, $24 per day when operating in the navigable waters of the state.
(2) Moneys collected under this section shall be deposited in the State Treasury to the credit of the Oil Spill Prevention Fund established under ORS 468B.410.
(3) As used in this section, “trip” means travel to the appointed destination and return travel to the point of origin within the navigable waters of this state. For the purpose of assessing trip fees under this section, self-propelled tank vessels transiting the navigable waters of this state in ballast shall be considered cargo vessels.
SECTION 3. ORS 196.600 is amended to read:
196.600. As used in ORS 196.600 to 196.655:
[(1) “Credit” means a numerical value that represents the wetland resource functions and values of a site.]
(1)
“Compensatory wetland mitigation” means activities conducted by a permittee or
third party to create, restore or enhance wetland functional attributes to
compensate for the adverse effects of project development or to resolve
violations of ORS 196.800 to 196.905.
(2) “Credit” means the measure of the increase in wetland functional attributes achieved at a mitigation bank site.
[(2)] (3) “Mitigation bank” means a wetland site, created, restored or enhanced in accordance with ORS 196.600 to 196.655 to compensate for unavoidable adverse impacts due to activities which otherwise comply with the requirements of ORS 196.600 to 196.905.
[(3) “On-site mitigation methods” means all measures that may be taken to reduce, offset or eliminate damage or destruction to the functional characteristics and processes of a wetland, including but not limited to relocating, reducing the size or scope, or changing the operational characteristics of the proposed activity, or creating or enhancing wetland functions or values at the project site.]
(4)
“Mitigation bank instrument” means the legally binding and enforceable
agreement between the Director of the Division of State Lands and a mitigation
bank sponsor that formally establishes the mitigation bank and stipulates the
terms and conditions of the mitigation bank’s construction, operation and
long-term management.
(5)
“Off-site compensatory wetland mitigation” means activities conducted away from
the project site that restore, create or enhance wetland functional attributes
in order to compensate for the adverse impacts to wetlands from project
development.
(6) “On-site compensatory wetland mitigation” means activities conducted at the project site to restore, create or enhance wetland functional attributes in order to compensate for the adverse impacts to wetlands from project development.
[(4)] (7) “Permit action” means activity under a specific removal or fill permit or other authorization requested or issued under ORS 196.600 to 196.905.
(8) “Service area” means the boundaries set forth in a mitigation bank instrument that include one or more watersheds identified on the United States Geological Survey, Hydrologic Unit Map - 1974, State of Oregon, for which a mitigation bank provides credits to compensate for adverse effects from project developments. Service areas for mitigation banks are not mutually exclusive.
[(5)] (9) “Statewide Comprehensive Outdoor Recreation Plan” means the plan created by the State Parks and Recreation Department pursuant to the federal Land and Water Conservation Fund Act of 1965, as amended (16 U.S.C. 460-L et seq.).
SECTION 4. ORS 196.605 is amended to read:
196.605. It is the purpose of ORS 196.600 to 196.655 to:
(1) Promote, in concert with other federal and state programs as well as interested parties, the maintenance and conservation of wetlands;
(2) Improve cooperative efforts among private, nonprofit and public entities for the management and protection of wetlands;
(3) Offset losses of wetland [values] functional attributes caused by activities which otherwise comply with state and federal law in order to create, restore or enhance wetland [values and functions] functional attributes;
(4) Maintain and encourage a predictable, efficient regulatory framework for environmentally acceptable development; and
(5) Provide an option for accomplishing off-site compensatory wetland mitigation when [such mitigation is required under a removal or fill permit] on-site compensatory wetland mitigation is not practicable.
SECTION 5. ORS 196.610 is amended to read:
196.610. Subject to approval by the State Land Board, the Director of the Division of State Lands may:
(1) Charge a fee for purchase of credits in the mitigation bank as provided by ORS 196.600 to 196.655.
(2) Acquire or accept title to lands suitable for use in mitigation banks or actions, or to protect sensitive or unique wetlands habitat.
(3) Pay costs incurred for alterations needed to create, restore or enhance wetland areas for purposes of carrying out the provisions of ORS 196.600 to 196.655 or 196.800 to 196.905.
(4) Authorize payment of administrative, research or scientific monitoring expenses of the division in carrying out the provisions of ORS 196.600 to 196.655 or 196.800 to 196.905.
(5) Disburse funds received under the Federal Coastal Zone Management Act of 1972, as amended (16 U.S.C. 1451 et seq.), for such purposes as specifically stipulated in a grant award.
(6) Receive funds under the Federal Emergency Wetlands Resources Act of 1986, P.L. 99-645, for the voluntary acquisition of wetlands and interests therein according to the wetlands provisions of the Statewide Comprehensive Outdoor Recreation Plan. Funds received under the Federal Emergency Wetlands Resources Act of 1986, P.L. 99-645, shall be used for nonmitigation complementary purposes and programs of ORS 196.600 to 196.655.
SECTION 6. ORS 196.615 is amended to read:
196.615. (1) In accordance with the provisions of ORS 196.600 to 196.655, upon the approval of the State Land Board, the Director of the Division of State Lands shall initiate and implement a program for wetlands mitigation banks. [Not more than four pilot mitigation banks shall be funded under ORS 196.600 to 196.655 before July 1, 1991.] The director shall encourage the development of and the expeditious approval of mitigation banks and other types of compensatory wetland mitigation.
(2) Subject to the approval of the State Land Board, the Division of State Lands shall adopt, by rule, standards and criteria for the site selection process, operation and evaluation of mitigation banks. Criteria to be considered shall include but need not be limited to:
(a) Historical wetland trends, including the estimated rate of current and future losses of the respective types of wetlands.
(b) The contributions of the wetlands to:
(A) Wildlife, migratory birds and resident species;
(B) Commercial and sport fisheries;
(C) Surface and ground water quality and quantity, and flood moderation;
(D) Outdoor recreation including enhancement of scenic waterways; and
(E) Scientific and research values.
(c) Regional economic needs.
(3) For each mitigation bank, the division shall establish a well-defined plan, including preliminary objectives, inventory of resource values and an evaluation and monitoring program.
SECTION 7. ORS 196.620 is amended to read:
196.620. (1) For each mitigation bank, the Division of State Lands shall establish a system of resource values and credits.
(2) A credit from a mitigation bank may be withdrawn [only for a permit action after all on-site mitigation methods have been examined and found to be impracticable or off-site mitigation is found to be environmentally preferable] for a condition imposed on a permit in accordance with ORS 196.825 (5), for any other authorization issued in accordance with ORS 196.800 to 196.905 or to resolve a violation of ORS 196.800 to 196.905.
(3) Credits from a freshwater mitigation bank [shall] may be used only [for mitigation of permit actions that occur] as described in subsection (2) of this section for permits, authorizations or resolutions of violations approved within the [same basin or subbasin as] service area of the mitigation bank, consistent with the mitigation bank instrument, unless the Director of the Division of State Lands determines, in exceptional circumstances, that it is environmentally preferable to exceed this limitation.
(4) Credits from an estuarine mitigation bank [shall] may be used only [for mitigation of permit actions that occur] as described in subsection (2) of this section for permits, authorizations or resolutions of violations approved within the same estuarine ecological system.
(5) The director [shall] may not withdraw any credits from any mitigation bank until the director:
(a) Has taken actions sufficient to establish hydrological function of the mitigation bank site;
(b) Has conducted other creation, restoration and enhancement actions to establish other wetland functions and values at the mitigation bank site; and
(c) Evaluated the results of the actions and determined that a high probability exists that the wetland functions and values of the mitigation bank site are equal to or greater than the functions and the values of the wetland area to be damaged or destroyed.
(6) The price for any mitigation credit shall be set at an amount that will compensate the state for all of the costs and expenses the state has incurred, and is expected to incur in establishing and maintaining that portion of the mitigation bank.
(7) The director shall not consider the availability or nonavailability of mitigation bank credits in deciding whether to grant or deny any removal or fill permit under ORS 196.600 to 196.905.
(8) The director annually shall:
(a) Evaluate the wetlands functions and values created within each wetland mitigation bank site; and
(b) Compare the current functions and values with [the functions and values] those that the director anticipated [the site] that the mitigation bank would provide. If the director finds any significant disparity between the actual and anticipated functions and values, the director shall:
(A) Suspend the withdrawal of credits to that mitigation site; or
(B) Take prompt action to [assure] ensure that the anticipated functions and values are established.
(9) The director [shall] may not withdraw credits from the mitigation bank for a specific permit, [actions] authorization or resolution of a violation if the director determines that:
(a) The credits for that specific permit, [action] authorization or resolution of a violation would not adequately maintain habitat or species diversity; or
(b) The mitigation bank site for which credits are proposed to be withdrawn is not sufficiently similar in wetland functions and values to the wetland area to be damaged or destroyed.
SECTION 8. ORS 196.625 is amended to read:
196.625. (1) The Director of the Division of State Lands shall maintain a record of fill and removal activities and actions for each mitigation bank [and pilot program] implemented and conduct monitoring of mitigation banks with moneys from the Oregon Wetlands Mitigation Bank Revolving Fund Account.
(2) The director shall provide [quarterly] annual reports to the State Land Board on moneys spent and received for each wetland mitigation bank.
SECTION 9. ORS 196.635 is amended to read:
196.635. (1) The provisions of ORS 196.600 to 196.655 shall be carried out by the Director of the Division of State Lands. The Division of State Lands shall solicit, but not be bound by, comments from [in consultation with] the State Department of Fish and Wildlife, Department of Transportation, Department of Land Conservation and Development, Department of Environmental Quality, Economic and Community Development Department, federal natural resources and regulatory agencies, affected local governments and special districts, conservation organizations and other interested parties. All comments shall be in writing and provided to the division and mitigation bank sponsor within 30 days of solicitation by the division. If comments are not received by the division from a state agency or from an affected local government or special district within 30 days of solicitation, the director shall assume that the state agency, local government or special district does not desire to provide comments.
(2) In cooperation with the parties in subsection (1) of this section, the director, in consultation with the State Land Board, shall:
(a) Review opportunities for inclusion of appropriate wetlands in the Statewide Comprehensive Outdoor Recreation Plan.
(b) Develop and recommend a wetlands priority plan for inclusion in the Statewide Comprehensive Outdoor Recreation Plan. The wetlands priority plan shall be complementary to the purposes and programs under ORS 196.600 to 196.655.
(3) The director shall confer with the Oregon Watershed Enhancement Board to develop criteria to certify watershed enhancement projects as mitigation banks.
SECTION 10. ORS 196.640 is amended to read:
196.640. (1) The Oregon Wetlands Mitigation Bank Revolving Fund Account is established, separate and distinct from the General Fund. All moneys received under ORS 196.645 shall be paid into the State Treasury and credited to the account. All moneys in the account are appropriated continuously to the Division of State Lands to be used by the division as set forth in ORS 196.650. The moneys in the account may be invested and reinvested as provided in ORS 293.701 to 293.820. Interest earned by the account shall be credited to the account.
(2) The division shall keep a record of all moneys deposited in the account. The record shall indicate by separate cumulative accounts the source from which the moneys are derived and the individual activity or program against which each withdrawal is charged.
(3)
The division shall publish annually the record of moneys deposited in and
removed from the account.
(4) The Director of the Division of State Lands may adopt rules for prioritizing expenditures from the account for the purposes specified in ORS 196.650.
SECTION 11. ORS 196.645 is amended to read:
196.645. The following moneys shall be paid into the Oregon Wetlands Mitigation Bank Revolving Fund Account:
(1) Any moneys appropriated for that purpose by the Legislative Assembly;
(2) Moneys received from conditions imposed on a permit, authorizations or resolutions of violations, except civil penalties, involving compensatory wetland mitigation in which the Division of State Lands is the party responsible for the compensatory wetland mitigation;
[(2)] (3) Moneys awarded for such purposes as specifically stipulated under grants through the Federal Emergency Wetlands Resources Act of 1986, P.L. 99-645, or the Federal Coastal Zone Management Act of 1972, 16 U.S.C. 1451 et seq., as amended;
[(3)] (4) Moneys obtained by gift, bequest, donation or grant from any other public or private source for the purposes of ORS 196.600 to 196.655 or 196.800 to 196.905;
[(4)] (5) Repayment of moneys from the account, including interest on such moneys; and
[(5)] (6) Moneys obtained from interest or other earnings from investments of moneys in the account.
SECTION 12. ORS 196.650 is amended to read:
196.650. The Division of State Lands may use the moneys in the Oregon Wetlands Mitigation Bank Revolving Fund Account for the following purposes:
(1) For the voluntary acquisition of land suitable for use in mitigation banks.
(2) To pay for [costs incurred for alterations needed] specific projects to create, restore or enhance wetland areas for
purposes of carrying out the provisions of ORS 196.600 to [196.655] 196.905. Moneys deposited in the account for
wetland impacts may be used only for wetland creation, restoration and
enhancement.
(3) For purchase of credits from approved mitigation banks.
[(3)] (4) For payment of administrative, research or scientific monitoring expenses of the division in carrying out the provisions of ORS 196.600 to 196.655.
[(4)] (5) For the disbursal of funds received under the Federal Coastal Zone Management Act of 1972, as amended (16 U.S.C. 1451 et seq.), for such purposes as specifically stipulated in a grant award.
[(5)] (6) For the disbursal of funds received under the Federal Emergency Wetlands Resources Act of 1986, P.L. 99-645, for the voluntary acquisition of wetlands and interests therein as identified in the wetlands provisions of the Statewide Comprehensive Outdoor Recreation Plan.
SECTION 13. ORS 196.655 is amended to read:
196.655. As part of the report to the State Land Board required under ORS 196.885, the Director of the Division of State Lands shall prepare an annual report on the Oregon Wetlands Mitigation Bank Revolving Fund Account. The report shall include, but need not be limited to:
(1) The financial status of the account;
(2) Creation, restoration or enhancement activities and credits sold, granted or otherwise disposed of or remaining in mitigation banks established under ORS 196.600 to 196.655;
(3) Wetlands acquired with moneys in the account; [and]
(4) Compensatory wetland mitigation projects financed with moneys in the account; and
[(4)] (5) For each mitigation bank, a summary of activities, including but not limited to:
(a) A description of the location, size, number of potential credits and credits withdrawn for each specific permit action; and
(b) The status of all mitigation bank activities pending or completed during the past year.
SECTION 14. 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) “Director” means the Director of the Division 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, 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) “Practicable” means capable of being accomplished after taking into consideration the cost, existing technology and logistics with respect to the overall project purpose.
[(11)] (12) “Public use” means a publicly owned project or a privately owned project that is available for use by the public.
[(12)] (13) “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)] (14) “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)] (15) “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)] (16) “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)] (17) “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 15. 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) “Director” means the Director of the Division 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, 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) “Practicable” means capable of being accomplished after taking into consideration the cost, existing technology and logistics with respect to the overall project purpose.
[(11)] (12) “Public use” means a publicly owned project or a privately owned project that is available for use by the public.
[(12)] (13) “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)] (14) “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)] (15) “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)] (16) “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)] (17) “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 16. ORS 196.805 is amended to read:
196.805. (1) The protection, conservation and best use of the water resources of this state are matters of the utmost public concern. Streams, lakes, bays, estuaries and other bodies of water in this state, including not only water and materials for domestic, agricultural and industrial use but also habitats and spawning areas for fish, avenues for transportation and sites for commerce and public recreation, are vital to the economy and well-being of this state and its people. Unregulated removal of material from the beds and banks of the waters of this state may create hazards to the health, safety and welfare of the people of this state. Unregulated filling in the waters of this state for any purpose, may result in interfering with or injuring public navigation, fishery and recreational uses of the waters. In order to provide for the best possible use of the water resources of this state, it is desirable to centralize authority in the Director of the Division of State Lands, and implement control of the removal of material from the beds and banks or filling of the waters of this state.
(2) The director [of the Division of State Lands] shall take into consideration all beneficial uses of water including streambank protection when administering fill and removal statutes.
(3) There shall be no condemnation, inverse condemnation, other taking, or confiscating of property under ORS 196.600 to 196.905 without due process of law.
(4)
The director shall delineate wetlands in accordance with the United States Army
Corps of Engineers Wetlands Delineation Manual of 1987, or subsequent federal
manual as adopted by rule by the director, and applicable guidance issued by
the United States Army Corps of Engineers for the area in which the wetlands
are located.
(5) The Division of State Lands shall give priority to the review of wetland delineation reports submitted with or in advance of an application for fill or removal of material from the waters of this state.
SECTION 17. 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 or can be conditioned on a future local approval to meet this criterion.
(h) Whether the proposed fill is for streambank protection.
(i) Whether the applicant has provided all practicable mitigation to reduce the adverse effects of the proposed fill in the manner set forth in ORS 196.800 (10). If off-site compensatory wetland mitigation is proposed, the applicant shall document the impracticability of on-site compensatory wetland mitigation.
(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 and to provide mitigation for the reasonably expected adverse impacts from project development. 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 of State Lands 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 deemed incomplete or 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] 21 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] 30 days from the date the division receives the application. If the director determines that an application is complete, the director shall [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] permit decision [on the issuance of a permit] involving fill or removal of material 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] not more than 30 days after receiving the request for comment. If an agency or other unit of government fails to comment on the application within [45] 30 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.]
(b) The Department of Environmental Quality shall provide comments to the director within 75 days after receiving notice under subsection (5) of this section if the permit action requires certification under the Federal Water Pollution Control Act (P.L. 92-500), as amended.
(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 17a. If Senate Bill 311 becomes law, section 17 of this 2003 Act (amending ORS 196.825) is repealed and ORS 196.825, as amended by section 9, chapter 253, Oregon Laws 2003 (Enrolled Senate Bill 311), is amended to read:
196.825. (1) The Director of the 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 or can be conditioned on a future local approval to meet this criterion.
(h) Whether the proposed fill is for streambank protection.
(i) Whether the applicant has provided all practicable mitigation to reduce the adverse effects of the proposed fill in the manner set forth in ORS 196.800 (10). If off-site compensatory wetland mitigation is proposed, the applicant shall document the impracticability of on-site compensatory wetland mitigation.
(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 and to provide mitigation for the reasonably expected adverse impacts from project development. 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 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 deemed incomplete or 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] 21 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] 30 days from the date the Department of State Lands receives the application. If the director determines that an application is complete, the director shall [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] permit decision [on the issuance of a permit] involving fill or removal of material 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] not more than 30 days after receiving the request for comment. If an agency or other unit of government fails to comment on the application within [45] 30 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 Department of State Lands with notice before providing those comments.]
(b) The Department of Environmental Quality shall provide comments to the director within 75 days after receiving notice under subsection (5) of this section if the permit action requires certification under the Federal Water Pollution Control Act (P.L. 92-500), as amended.
(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 18. 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 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 or can be conditioned on a future local approval to meet this criterion.
(h) Whether the proposed fill is for streambank protection.
(i) Whether the applicant has provided all practicable mitigation to reduce the adverse effects of the proposed fill in the manner set forth in ORS 196.800 (10). If off-site compensatory wetland mitigation is proposed, the applicant shall document the impracticability of on-site compensatory wetland mitigation.
(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 and to provide mitigation for the reasonably expected adverse impacts from project development. 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 of State Lands 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 deemed incomplete or 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] 21 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] 30 days from the date the division receives the application. If the director determines that an application is complete, the director shall [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] permit decision [on the issuance of a permit] involving fill or removal of material 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] not more than 30 days after receiving the request for comment. If an agency or other unit of government fails to comment on the application within [45] 30 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 with notice before providing those comments.]
(b) The Department of Environmental Quality shall provide comments to the director within 75 days after receiving notice under subsection (5) of this section if the permit action requires certification under the Federal Water Pollution Control Act (P.L. 92-500), as amended.
(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 18a. If Senate Bill 311 becomes law, section 18 of this 2003 Act (amending ORS 196.825) is repealed and ORS 196.825, as amended by section 10, chapter 253, Oregon Laws 2003 (Enrolled Senate Bill 311), and by section 3, chapter 516, Oregon Laws 2001, is amended to read:
196.825. (1) The Director of the 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 or can be conditioned on a future local approval to meet this criterion.
(h) Whether the proposed fill is for streambank protection.
(i) Whether the applicant has provided all practicable mitigation to reduce the adverse effects of the proposed fill in the manner set forth in ORS 196.800 (10). If off-site compensatory wetland mitigation is proposed, the applicant shall document the impracticability of on-site compensatory wetland mitigation.
(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 and to provide mitigation for the reasonably expected adverse impacts from project development. 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 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 deemed incomplete or 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] 21 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] 30 days from the date the Department of State Lands receives the application. If the director determines that an application is complete, the director shall [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] permit decision [on the issuance of a permit] involving fill or removal of material 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] not more than 30 days after receiving the request for comment. If an agency or other unit of government fails to comment on the application within [45] 30 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 Department of State Lands with notice before providing those comments.]
(b) The Department of Environmental Quality shall provide comments to the director within 75 days after receiving notice under subsection (5) of this section if the permit action requires certification under the Federal Water Pollution Control Act (P.L. 92-500), as amended.
(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 19. ORS 196.835 is amended to read:
196.835. Any person aggrieved or adversely affected by the grant of a permit by the Director of the Division of State Lands may file a written request for hearing with the director within [60] 21 days after the date the permit was granted. If the director finds that the person making the written request has a legally protected interest which is adversely affected by the grant of the permit, the director shall set the matter down for hearing within 30 days after receipt of the request. The hearing shall be conducted as a contested case in accordance with ORS 183.415 to 183.430, 183.440 to 183.460 and 183.470. The permittee shall be a party to the proceeding. Within 45 days of the 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 original order. Appeals from the director’s final order may be taken to the Court of Appeals in the manner provided by ORS 183.482. A permit to fill granted by the director may be suspended by the director during the pendency of the proceedings before the director and any appeal. The director shall not suspend the permit unless the person aggrieved or adversely affected by grant of permit makes a showing before the director by clear and convincing evidence that commencement or continuation of the fill would cause irremediable damage and would be inconsistent with ORS 196.600 to 196.905.
SECTION 20. ORS 196.810 is amended to read:
196.810. (1)(a) Except as otherwise specifically permitted under ORS 196.600 to 196.905, no person or governmental body may remove any material from the beds or banks or fill any waters of this state without a permit issued under authority of the Director of the Division of State Lands, or in a manner contrary to the conditions set out in the permit, or in a manner contrary to the conditions set out in an order approving a wetlands conservation plan.
(b) Notwithstanding the permit requirements of this section and notwithstanding the provisions of ORS 196.800 (5) and [(12)] (13), if any removal or fill activity is proposed in essential indigenous anadromous salmonid habitat, except for those activities customarily associated with agriculture, a permit is required. “Essential indigenous anadromous salmonid habitat” as defined under this section shall be further defined and designated by rule by the Division of State Lands in consultation with the State Department of Fish and Wildlife and in consultation with other affected parties.
(c) No person may be required to obtain a permit under paragraph (b) of this subsection for prospecting or other nonmotorized activities resulting in the removal from or fill of less than one cubic yard of material at any one individual site and, cumulatively, not more than five cubic yards of material within a designated essential indigenous anadromous salmonid habitat segment in a single year. Prospecting or other nonmotorized activities may be conducted only within the bed or wet perimeter of the waterway and may not occur at any site where fish eggs are present. Removal or filling activities customarily associated with mining requires a permit under paragraph (b) of this subsection.
(d) No permit may be required under paragraph (b) of this subsection for construction or maintenance of fish passage and fish screening structures that are constructed, operated or maintained under ORS 498.311, 498.316, 498.326 or 509.600 to 509.645.
(e) Nothing in this section limits or otherwise changes the exemptions under ORS 196.905.
(f) As used in paragraphs (b) and (c) of this subsection:
(A) “Bed” means the land within the wet perimeter and any adjacent nonvegetated dry gravel bar.
(B) “Essential indigenous anadromous salmonid habitat” means the habitat that is necessary to prevent the depletion of indigenous anadromous salmonid species during their life history stages of spawning and rearing.
(C) “Indigenous anadromous salmonid” means chum, sockeye, Chinook and Coho salmon, and steelhead and cutthroat trout, that are members of the family Salmonidae and are listed as sensitive, threatened or endangered by a state or federal authority.
(D) “Prospecting” means searching or exploring for samples of gold, silver or other precious minerals, using nonmotorized methods, from among small quantities of aggregate.
(E) “Wet perimeter” means the area of the stream that is under water or is exposed as a nonvegetated dry gravel bar island surrounded on all sides by actively moving water at the time the activity occurs.
(2) No governmental body may issue a lease or permit contrary or in opposition to the conditions set out in the permit issued under ORS 196.600 to 196.905.
(3) Subsection (1) of this section does not apply to removal of material under a contract, permit or lease with any governmental body entered into before September 13, 1967. However, no such contract, permit or lease may be renewed or extended on or after September 13, 1967, unless the person removing the material has obtained a permit under ORS 196.600 to 196.905.
(4) Notwithstanding subsection (1) of this section, the Division of State Lands may issue, orally or in writing, an emergency authorization for the removal of material from the beds or banks or filling of any waters of this state in an emergency, for the purpose of making repairs or for the purpose of preventing irreparable harm, injury or damage to persons or property. The emergency authorization issued under this subsection:
(a) Shall contain conditions of operation that the division determines are necessary to minimize impacts to water resources or adjoining properties.
(b) Shall be based, whenever practicable, on the recommendations contained in an on-site evaluation by an employee or representative of the division.
(c) If issued orally, shall be confirmed in writing by the division within five days.
SECTION 21. Section 22 of this 2003 Act is added to and made a part of ORS 196.600 to 196.655.
SECTION 22. A person who provides off-site compensatory wetland mitigation in order to comply with a condition imposed on a permit in accordance with ORS 196.825 (5), an authorization issued in accordance with ORS 196.800 to 196.905 or a resolution of a violation of ORS 196.800 to 196.905 may make a payment for credits to an approved mitigation bank with available credits, or to the Oregon Wetlands Mitigation Bank Revolving Fund Account, if credits from a mitigation bank are not available. If the person is making a payment to the Oregon Wetlands Mitigation Bank Revolving Fund Account, the payment shall be equal to the average cost of credits available from all active mitigation banks in the state.
SECTION 23. The amendments to ORS 196.825 and 196.835 by sections 17 and 19 of this 2003 Act apply to permits applied for on or after the effective date of this 2003 Act.
SECTION 23a. If Senate Bill 311 becomes law, section 23 of this 2003 Act is amended to read:
Sec. 23. The amendments to ORS 196.825 and 196.835 by sections [17] 17a and 19 of this 2003 Act apply to permits applied for on or after the effective date of this 2003 Act.
SECTION 24. This 2003 Act takes effect on the 91st day after the date on which the regular session of the Seventy-second Legislative Assembly adjourns sine die.
Approved by the Governor August 29, 2003
Filed in the office of Secretary of State September 2, 2003
Effective date November 26, 2003
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