72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
 
NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .
 
LC 950
 
                           A-Engrossed
 
                         House Bill 2431
                   Ordered by the House May 6
             Including House Amendments dated May 6
 
Sponsored by Representative KROPF
 
 
                             SUMMARY
 
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
 
    { - Allows person seeking permit to remove material from or
fill waters of state to pay money into Oregon Wetlands Mitigation
Bank Revolving Fund Account instead of obtaining permit.
Specifies replacement ratio for mitigating wetland loss.
Specifies that Director of Division of State Lands has burden to
prove that wetlands exist on property for which permit is sought.
Allows person to seek writ of mandamus to force Division of State
Lands to make final decision on permit application after 90
days. - }
   { +  Modifies appeal procedure when application relating to
removing material from or filling waters of state is denied or
determined to be incomplete. + }
 
                        A BILL FOR AN ACT
Relating to wetlands; creating new provisions; and amending ORS
  196.825 and 196.835.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 196.825 is amended to read:
  196.825. (1) The Director of the Division of State Lands shall
issue a permit to remove material from the beds or banks of any
waters of this state applied for under ORS 196.815 if the
director determines that the removal described in the application
will not be inconsistent with the protection, conservation and
best use of the water resources of this state as specified in ORS
196.805.
  (2) The director shall issue a permit applied for under ORS
196.815 for filling waters of this state if the director
determines that the proposed fill would not unreasonably
interfere with the paramount policy of this state to preserve the
use of its waters for navigation, fishing and public recreation.
  (3) In determining whether or not a permit shall be issued, the
director shall consider all of the following:
  (a) The public need for the proposed fill and the social,
economic or other public benefits likely to result from the
proposed fill. When the applicant for a fill permit is a public
body, the director may accept and rely upon the public body's
findings as to local public need and local public benefit.
 
  (b) The economic cost to the public if the proposed fill is not
accomplished.
  (c) The availability of alternatives to the project for which
the fill is proposed.
  (d) The availability of alternative sites for the proposed
fill.
  (e) Whether the proposed fill conforms to sound policies of
conservation and would not interfere with public health and
safety.
  (f) Whether the proposed fill is in conformance with existing
public uses of the waters and with uses designated for adjacent
land in an acknowledged comprehensive plan and zoning ordinances.
  (g) Whether the proposed fill is compatible with the
acknowledged comprehensive plan and land use regulations for the
area where the proposed fill is to take place.
  (h) Whether the proposed fill is for streambank protection.
  (4) The director may issue a permit for a substantial fill in
an estuary for a nonwater dependent use only if the fill is for a
public use and would satisfy a public need that outweighs harm to
navigation, fishery and recreation and if the proposed fill meets
all other criteria contained in ORS 196.600 to 196.905.
  (5) If the director issues a permit, the director may impose
such conditions as the director considers necessary to carry out
the purposes of ORS 196.805  { - , - }   { + and + } 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 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) - }   { + (6)(a) + } 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,  { + or who disputes a determination
that an application is not complete, + } may, within   { - 10 - }
 { + 21 + } days of the denial of the permit { + , + }
 { - or - }  the imposition of any condition { +  or the
determination that an application is not complete + }, 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. - }
   { +  (b) The director shall utilize an independent hearing
officer to conduct the hearing. The hearing officer shall be
assigned from the Hearing Officer Panel established under section
3, chapter 849, Oregon Laws 1999.
  (c) The hearing officer shall issue a final order containing
findings of fact and conclusions of law. Notwithstanding section
 
12, chapter 849, Oregon Laws 1999, the final order of the hearing
officer is binding upon the division.
  (d) The hearing officer's final order is subject to judicial
review by the Court of Appeals in the manner provided by ORS
183.482.
  (e) The hearing officer shall have the authority to determine
issues relating to discovery. However, all parties to the
proceeding must be afforded the same opportunities for
discovery. + }
  (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 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 - }   { + shall + }
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. { +  The director's determination
that the application is not complete is a decision that may be
appealed to a hearing officer. + }
  (b) Issue a final decision on the issuance of a permit within
90 days after the date   { - the director determines - }  that
the application is complete unless:
  (A) An extension of time is granted under subsection (9)(b) of
this section; or
  (B) The applicant and the director agree to a longer time
period.
  (8) Permits issued under this section shall be in lieu of any
permit that might be required for the same operation under ORS
164.775, 164.785, 468.010, 468.030 to 468.045, 468.055, 468.060,
468.075, 468.110, 468.120, 468B.005 to 468B.030 and 468B.048 to
468B.085, so long as:
  (a) The operation is that for which the permit is issued; and
  (b) The standards for granting such permits are substantially
the same as those established pursuant to ORS 164.775, 164.785,
468.010, 468.035, 468.040, 468.055, 468.110, 468.120, 468B.005 to
468B.030 and 468B.048 to 468B.085 to the extent they affect water
quality.
  (9)(a) Any agency or other unit of government requested by the
director to comment on an application for a permit under
subsection (5) of this section must submit its comments to the
director within 45 days after receiving the request for comment.
If an agency or other unit of government fails to comment on the
application within 45 days, the director shall assume the agency
or other unit of government has no objection and shall approve or
deny the application.
  (b) Notwithstanding paragraph (a) of this subsection, the
Department of Environmental Quality shall comment to the director
within 75 days after receiving notice required under subsection
(5) of this section unless the director has granted an extension
of time. In no case shall the director grant an extension of time
in excess of one year.
  (c) The Department of Environmental Quality shall not
subsequently make comments under the Federal Water Pollution
Control Act that differ from those comments made under paragraph
(b) of this subsection without good cause and without providing
the director of the division with notice before providing those
comments.
  (10) In determining whether to issue a permit, the director may
consider only standards and criteria in effect on the date the
director receives the completed application.
 
   { +  (11) If the director does not make a final decision on
the issuance of a permit within 90 days after the date that the
application is complete and no extension of time has been allowed
pursuant to subsection (7)(b) of this section, or if a final
decision on a contested case hearing is not rendered within 120
days, or a reasonable time period agreed to by all parties, from
the date a contested case hearing is requested, the applicant may
apply, in the circuit court in the county in which the property
subject to the permit is located, for a writ of mandamus to
compel the director or independent hearing officer to issue a
decision.  The court must issue the writ unless the director
shows that the decision would violate a substantive provision of
the applicable regulations. In each case where the court compels
the director to take an action required by statute, the court
shall award costs and reasonable attorney fees, if any, to the
prevailing party. + }
    { - (11) - }   { + (12) + } 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 2. 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.
  (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  { - , - }   { + and + } 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 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) - }   { + (6)(a) + } 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,  { + or who disputes a determination
that an application is not complete, + } may, within   { - 10 - }
 { + 21 + } days of the denial of the permit { + , + }
 { - or - }  the imposition of any condition { +  or the
determination that an application is not complete + }, 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. - }
   { +  (b) The director shall utilize an independent hearing
officer to conduct the hearing. The hearing officer shall be
assigned from the Hearing Officer Panel established under section
3, chapter 849, Oregon Laws 1999.
  (c) The hearing officer shall issue a final order containing
findings of fact and conclusions of law. Notwithstanding section
 
12, chapter 849, Oregon Laws 1999, the final order of the hearing
officer is binding upon the division.
  (d) The hearing officer's final order is subject to judicial
review by the Court of Appeals in the manner provided by ORS
183.482.
  (e) The hearing officer shall have the authority to determine
issues relating to discovery. However, all parties to the
proceeding must be afforded the same opportunities for
discovery. + }
  (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 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 - }   { + shall + }
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.  { + The director's determination
that the application is not complete is a decision that may be
appealed to a hearing officer. + }
  (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 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) If the director does not make a final decision on
the issuance of a permit within 90 days after the date that the
application is complete and no extension of time has been allowed
pursuant to subsection (7)(b) of this section, or if a final
decision on a contested case hearing is not rendered within 120
days, or a reasonable time period agreed to by all parties, from
the date a contested case hearing is requested, the applicant may
apply, in the circuit court in the county in which the property
subject to the permit is located, for a writ of mandamus to
compel the director or independent hearing officer to issue a
decision.  The court must issue the writ unless the director
shows that the decision would violate a substantive provision of
the applicable regulations. In each case where the court compels
the director to take an action required by statute, the court
shall award costs and reasonable attorney fees, if any, to the
prevailing party. + }
    { - (11) - }   { + (12) + } As used in this section:
  (a) 'Applicant' means a landowner or person authorized by a
landowner to conduct a removal or fill activity.
  (b) 'Completed application' means a signed permit application
form that contains all necessary information for the director to
determine whether to issue a permit, including:
  (A) A map showing the project site with sufficient accuracy to
easily locate the removal or fill site;
  (B) A project plan showing the project site and proposed
alterations;
  (C) The fee required under ORS 196.815;
  (D) Any changes that may be made to the hydraulic
characteristics of waters of this state and a plan to minimize or
avoid any adverse effects of those changes;
  (E) If the project may cause substantial adverse effects on
aquatic life or aquatic habitat within this state, documentation
of existing conditions and resources and identification of the
potential impact if the project is completed;
  (F) An analysis of alternatives that evaluates practicable
methods to minimize and avoid impacts to waters of this state;
  (G) If the project is to fill or remove material from wetlands,
a wetlands mitigation plan; and
  (H) Any other information that the director deems pertinent and
necessary to make an informed decision on whether the application
complies with the policy and standards set forth in subsections
(1) to (5) of this section.
  SECTION 3. ORS 196.825, as amended by section 1 of this 2003
Act, is amended to read:
  196.825 (1) The Director of the Division of State Lands shall
issue a permit to remove material from the beds or banks of any
waters of this state applied for under ORS 196.815 if the
director determines that the removal described in the application
will not be inconsistent with the protection, conservation and
best use of the water resources of this state as specified in ORS
196.805.
  (2) The director shall issue a permit applied for under ORS
196.815 for filling waters of this state if the director
determines that the proposed fill would not unreasonably
interfere with the paramount policy of this state to preserve the
use of its waters for navigation, fishing and public recreation.
  (3) In determining whether or not a permit shall be issued, the
director shall consider all of the following:
  (a) The public need for the proposed fill and the social,
economic or other public benefits likely to result from the
proposed fill. When the applicant for a fill permit is a public
body, the director may accept and rely upon the public body's
findings as to local public need and local public benefit.
  (b) The economic cost to the public if the proposed fill is not
accomplished.
 
  (c) The availability of alternatives to the project for which
the fill is proposed.
  (d) The availability of alternative sites for the proposed
fill.
  (e) Whether the proposed fill conforms to sound policies of
conservation and would not interfere with public health and
safety.
  (f) Whether the proposed fill is in conformance with existing
public uses of the waters and with uses designated for adjacent
land in an acknowledged comprehensive plan and zoning ordinances.
  (g) Whether the proposed fill is compatible with the
acknowledged comprehensive plan and land use regulations for the
area where the proposed fill is to take place.
  (h) Whether the proposed fill is for streambank protection.
  (4) The director may issue a permit for a substantial fill in
an estuary for a nonwater dependent use only if the fill is for a
public use and would satisfy a public need that outweighs harm to
navigation, fishery and recreation and if the proposed fill meets
all other criteria contained in ORS 196.600 to 196.905.
  (5) If the director issues a permit, the director may impose
such conditions as the director considers necessary to carry out
the purposes of ORS 196.805 and 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 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)(a) 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, or
who disputes a determination that an application is not complete,
may, within 21 days of the denial of the permit, the imposition
of any condition or the determination that an application is not
complete, 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 + }.
  (b) The director shall utilize an independent hearing officer
to conduct the hearing.   { - The hearing officer shall be
assigned from the Hearing Officer Panel established under section
3, chapter 849, Oregon Laws 1999. - }
  (c) The hearing officer shall issue shall issue a final order
containing findings of fact and conclusions of law.
  { - Notwithstanding section 12, chapter 849, Oregon Laws
1999, - }  The final order of the hearing officer is binding upon
the division.
  (d) The hearing officer's final order is subject to judicial
review by the Court of Appeals in the manner provided by ORS
183.482.
  (e) The hearing officer shall have the authority to determine
issues relating to discovery. However, all parties to the
proceeding must be afforded the same opportunities for discovery.
 
  (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 30 days
from the date the division receives the application. If the
director determines that an application is complete except for
payment of the fee due pursuant to ORS 196.815, the director
shall notify the applicant of the amount due and, upon receipt of
the fee, shall 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. The director's
determination that the application is not complete is a decision
that may be appealed to a hearing officer.
  (b) Issue a final decision on the issuance of a permit within
90 days after the date that the application is complete unless:
  (A) An extension of time is granted under subsection (9)(b) of
this section; or
  (B) The applicant and the director agree to a longer time
period.
  (8) Permits issued under this section shall be in lieu of any
permit that might be required for the same operation under ORS
164.775, 164.785, 468.010, 468.030 to 468.045, 468.055, 468.060,
468.075, 468.110, 468.120, 468B.005 to 468B.030 and 468B.048 to
468B.085, so long as:
  (a) The operation is that for which the permit is issued; and
  (b) The standards for granting such permits are substantially
the same as those established pursuant to ORS 164.775, 164.785,
468.010, 468.035, 468.040, 468.055, 468.110, 468.120, 468B.005 to
468B.030 and 468B.048 to 468B.085 to the extent they affect water
quality.
  (9)(a) Any agency or other unit of government requested by the
director to comment on an application for a permit under
subsection (5) of this section must submit its comments to the
director within 45 days after receiving the request for comment.
If an agency or other unit of government fails to comment on the
application within 45 days, the director shall assume the agency
or other unit of government has no objection and shall approve or
deny the application.
  (b) Notwithstanding paragraph (a) of this subsection, the
Department of Environmental Quality shall comment to the director
within 75 days after receiving notice required under subsection
(5) of this section unless the director has granted an extension
of time. In no case shall the director grant an extension of time
in excess of one year.
  (c) The Department of Environmental Quality shall not
subsequently make comments under the Federal Water Pollution
Control Act that differ from those comments made under paragraph
(b) of this subsection without good cause and without providing
the director of the division with notice before providing those
comments.
  (10) In determining whether to issue a permit, the director may
consider only standards and criteria in effect on the date the
director receives the completed application.
  (11) If the director does not make a final decision on the
issuance of a permit within 90 days after the date that the
application is complete and no extension of time has been allowed
pursuant to subsection (7)(b) of this section, or if a final
decision on a contested case hearing is not rendered within 120
days, or a reasonable time period agreed to by all parties, from
the date a contested case hearing is requested, the applicant may
apply, in the circuit court in the county in which the property
subject to the permit is located, for a writ of mandamus to
compel the director or independent hearing officer to issue a
decision.  The court must issue the writ unless the director
shows that the decision would violate a substantive provision of
the applicable regulations. In each case where the court compels
the director to take an action required by statute, the court
shall award costs and reasonable attorney fees, if any, to the
prevailing party.
  (12) 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 4. ORS 196.825, as amended by section 3, chapter 516,
Oregon Laws 2001, and section 2 of this 2003 Act, 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.
  (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 and 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 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)(a) 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, or
who disputes a determination that an application is not complete,
may, within 21 days of the denial of the permit, the imposition
of any condition or the determination that an application is not
complete, 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 + }.
  (b) The director shall utilize an independent hearing officer
to conduct the hearing.   { - The hearing officer shall be
assigned from the Hearing Officer Panel established under section
3, chapter 849, Oregon Laws 1999. - }
  (c) The hearing officer shall issue a final order containing
findings of fact and conclusions of law.   { - Notwithstanding
section 12, chapter 849, Oregon Laws 1999, - }  The final order
of the hearing officer is binding upon the division.
  (d) The hearing officer's final order is subject to judicial
review by the Court of Appeals in the manner provided by ORS
183.482.
  (e) The hearing officer shall have the authority to determine
issues relating to discovery. However, all parties to the
proceeding must be afforded the same opportunities for discovery.
  (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 30 days
from the date the division receives the application. If the
director determines that an application is complete except for
payment of the fee due pursuant to ORS 196.815, the director
shall notify the applicant of the amount due and, upon receipt of
the fee, shall 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. The director's
determination that the application is not complete is a decision
that may be appealed to a hearing officer.
  (b) Issue a final decision on the issuance of a permit within
90 days after the date 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 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) If the director does not make a final decision on the
issuance of a permit within 90 days after the date that the
application is complete and no extension of time has been allowed
pursuant to subsection (7)(b) of this section, or if a final
decision on a contested case hearing is not rendered within 120
days, or a reasonable time period agreed to by all parties, from
the date a contested case hearing is requested, the applicant may
apply, in the circuit court in the county in which the property
subject to the permit is located, for a writ of mandamus to
compel the director or independent hearing officer to issue a
decision.  The court must issue the writ unless the director
shows that the decision would violate a substantive provision of
the applicable regulations. In each case where the court compels
the director to take an action required by statute, the court
shall award costs and reasonable attorney fees, if any, to the
prevailing party.
  (12) 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 5. 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. - }   { + The director shall utilize an
independent hearing officer to conduct the hearing. The hearing
officer shall be assigned from the Hearing Officer Panel
established under section 3, chapter 849, Oregon Laws 1999. The
hearing officer shall issue a final order containing findings of
fact and conclusions of law. Notwithstanding section 12, chapter
849, Oregon Laws 1999, the final order of the hearing officer is
binding upon the division. The hearing officer shall issue a
final order within 120 days from the date that a hearing is
requested. + } Appeals from the   { - director's - }
 { + hearing officer'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 - }   { + hearing officer + } 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 6. ORS 196.835, as amended by section 5 of this 2003
Act, 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
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 director
shall utilize an independent hearing officer to conduct the
hearing.   { - The hearing officer shall be assigned from the
Hearing Officer Panel established under section 3, chapter 849,
Oregon Laws 1999. - }  The hearing officer shall issue a final
order containing findings of fact and conclusions of law.
 { - Notwithstanding section 12, chapter 849, Oregon Laws
1999, - }  The final order of the hearing officer is binding upon
the division. The hearing officer shall issue a final order
within 120 days from the date that a hearing is requested.
Appeals from the hearing officer'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
hearing officer 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 7.  { + The amendments to ORS 196.825 and 196.835 by
sections 3, 4 and 6 of this 2003 Act become operative on June 30,
2005. + }
  SECTION 8.  { + The amendments to ORS 196.825 and 196.835 by
sections 1 to 6 of this 2003 Act apply to applications for
permits submitted to the Division of State Lands on or before the
effective date of this 2003 Act for which a final order has not
been issued on the effective date of this 2003 Act. + }
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