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 2810
 
                           B-Engrossed
 
                         House Bill 2899
                  Ordered by the House July 25
       Including House Amendments dated May 21 and July 25
 
Sponsored by Representative BUTLER
 
 
                             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.
 
  Defines terms relating to wetlands. Allows Director of Division
of State Lands to pay certain costs to carry out provisions to
offset removal and fill of wetlands. Requires director to
encourage development and approval of mitigation banks and other
types of compensatory wetland mitigation. Modifies use of credits
from mitigation bank. Modifies comment and reporting requirements
relating to mitigation banks. Limits use of certain moneys for
wetland creation, restoration and enhancement. Modifies duties of
director relating to permit to fill wetland.
   { +  Establishes fee on dredge vessels to recover costs of
reviewing spill response plans and for conducting inspections,
training and other activities related to spill prevention.
Defines dredge vessel. + }
  Takes effect on 91st day following adjournment sine die.
 
                        A BILL FOR AN ACT
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 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 2. 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  { + and functions + }
caused by activities which otherwise comply with state and
federal law in order to create, restore or enhance wetland values
and functions;
  (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 3. 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 4. 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 5. 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 6. 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 7. 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 8. 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 9. 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 10. 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 11. 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 12. 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) 'Functional attributes' means ecological
characteristics or processes of wetlands such as fish habitat,
wildlife habitat, water quality and water storage. + }
    { - (6) - }   { + (7) + } '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) - }   { + (8) + } '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) - }   { + (9) + } '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) - }   { + (10) + } '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) - }   { + (11) + } '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.  { +
  (12) 'Practicable' means capable of being accomplished after
taking into consideration the cost, existing technology and
logistics with respect to the overall project purpose. + }
    { - (11) - }   { + (13) + } 'Public use' means a publicly
owned project or a privately owned project that is available for
use by the public.
    { - (12) - }   { + (14) + } '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) - }   { + (15) + } '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) - }   { + (16) + } '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) - }   { + (17) + } '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) - }   { + (18) + } '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 13. 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) 'Functional attributes' means ecological
characteristics or processes of wetlands such as fish habitat,
wildlife habitat, water quality and water storage. + }
    { - (6) - }   { + (7) + } '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) - }   { + (8) + } '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) - }   { + (9) + } '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) - }   { + (10) + } '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) - }   { + (11) + } '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.
   { +  (12) 'Practicable' means capable of being accomplished
after taking into consideration the cost, existing technology and
logistics with respect to the overall project purpose. + }
    { - (11) - }   { + (13) + } 'Public use' means a publicly
owned project or a privately owned project that is available for
use by the public.
    { - (12) - }   { + (14) + } '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) - }   { + (15) + } '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) - }   { + (16) + } '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) - }   { + (17) + } '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) - }   { + (18) + } '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 14. 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 15. 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 (11). 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 16. 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 (11). 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 17. 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 18. 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) - }  { + (14) + }, 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 19.  { + Section 20 of this 2003 Act is added to and
made a part of ORS 196.600 to 196.655. + }
  SECTION 20.  { + 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 21. 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 22. 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 23.  { + The amendments to ORS 196.825 and 196.835 by
sections 15 and 17 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. + }
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