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 2634
Senate Bill 633
Sponsored by Senator RINGO
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 as
introduced.
Establishes state policy against discharge of mercury, dioxins,
lead, polychlorinated biphenyls and certain carcinogens into
waters of or on ground in Willamette Basin.
Directs Water Resources Commission to establish schedule of
fees assessed on water right holders. Specifies that fees
collected are to be used for protection and restoration of waters
of state. Suspends water right permit of persons failing to pay
fee.
Prohibits development of undeveloped water right held for
municipal use until Water Resources Commission conditions use to
ensure minimum water flows to support public uses.
Establishes tax on sales of pesticides and fertilizers.
Dedicates moneys to Restoration and Protection Subaccount of
Parks and Natural Resources Fund.
A BILL FOR AN ACT
Relating to the environment; creating new provisions; amending
ORS 536.009 and 537.410; and providing for revenue raising that
requires approval by a three-fifths majority.
Whereas water is the fundamental ingredient of life and water
connects us to the lives of all plants and animals through the
natural cycle; and
Whereas Oregon's rivers, streams and fish are a precious
heritage that must be protected, restored and maintained for
future generations; and
Whereas river basins throughout Oregon face periodic and
increasingly frequent water shortages during summer and fall
months, with some basins facing water shortages throughout the
year; and
Whereas past mismanagement and out-of-stream allocations of
water resources have left rivers and streams without sufficient
flows to support fish, wildlife, recreation, scenic values and
other public trust values; and
Whereas essential salmon and steelhead spawning and rearing
habitat has been impaired or destroyed and Oregon's famed water
heritage of free flowing streams is in danger of being lost; and
Whereas increasing urbanization in Oregon results in a
continually expanding need for municipal water supplies and
places a strain on already scarce water resources; and
Whereas water development reduces water supplies without regard
to river values or conservation; and
Whereas the state has a duty to exercise supervision and
control over the water resources of this state for the purpose of
protecting, restoring and maintaining the resources for the
benefit of all Oregonians; and
Whereas action must be taken immediately to ensure that the
growth of Oregon's urban areas is only allowed when river values
are protected to ensure that Oregon's river and wildlife heritage
is not lost forever; now, therefore,
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Section 2 of this 2003 Act is added to and made
a part of ORS chapter 536. + }
SECTION 2. { + (1) In addition to the fees charged by the
Water Resources Department under ORS 536.050 for applications
filed with the department, the Water Resources Commission shall
establish a schedule of fees to be assessed on holders of water
rights other than in-stream water rights. The schedule shall base
the fees on the quantity of water authorized for use under the
water right and shall be sufficient to pay the expenses of the
department and the commission in implementing:
(a) The planning authority of ORS 536.300 and 536.340 and the
withdrawal authority of ORS 536.410.
(b) In-stream water rights program pursuant to ORS 537.332 to
537.360.
(c) The water distribution management and water measurement
authority of ORS chapter 540.
(d) Enforcement of the policy of water use for beneficial
purposes without waste under ORS 536.310.
(2) All moneys received from fees charged under this section
shall be deposited in the Water Resources Department Operating
Account established under ORS 536.009.
(3) If a person appropriating water under a permit fails to pay
a fee required under this section, the department may institute
proceedings to cancel the permit in the manner provided for
cancellation of permits under ORS 537.410 to 537.450.
(4) As used in this section, 'water right' means a legal
authorization to use water under a valid license, permit or
certificate. + }
SECTION 3. { + The Water Resources Commission shall adopt the
schedule of fees specified in section 2 of this 2003 Act no later
than September 30, 2004. + }
SECTION 4. ORS 536.009 is amended to read:
536.009. (1) There hereby is established in the General Fund of
the State Treasury the Water Resources Department Operating
Account to provide for the payment of the administrative expenses
of the Water Resources Commission and the Water Resources
Department in carrying out the provisions of ORS 536.050 and
537.747.
(2) The account created by subsection (1) of this section shall
consist of:
(a) Fees received pursuant to ORS 536.050 (1) and 537.747 (6).
{ + (b) Fees received pursuant to section 2 of this 2003
Act. + }
{ - (b) - } { + (c) + } All moneys received on behalf of
this account by gift, grant or appropriation, from whatever
source.
SECTION 5. ORS 537.410 is amended to read:
537.410. (1) Whenever the owner of a permit to appropriate the
public waters of Oregon fails to commence actual construction
work within the time required by law, or having commenced
construction work as required by law, fails or neglects to
prosecute the construction work with reasonable diligence, or
fails to complete the construction work within the time required
by law, or as fixed in the permit, or within such further time as
may be allowed under ORS 537.230, or having completed
construction work, fails or neglects to apply the water to
beneficial use within the time fixed in the permit, { + or fails
or neglects to pay a fee required under section 2 of this 2003
Act, + } the Water Resources Commission may cancel the permit on
the records in the Water Resources Department as provided in ORS
537.410 to 537.450.
(2) However, permits issued by the commission to irrigation
districts for reclamation purposes under the irrigation district
laws of this state, to municipal corporations for municipal uses
or purposes or to public utilities complying with subsection (3)
of this section for an energy facility granted a site certificate
by the Energy Facility Siting Council, are not subject to
cancellation under the provisions of ORS 537.410 to 537.450.
(3) For a public utility to qualify under subsection (2) of
this section:
(a) The energy facility of the public utility must not be a
facility required to be licensed under ORS chapter 543; and
(b) The public utility must supply information every two years
that demonstrates to the satisfaction of the commission that the
conditions in the site certificate issued by the Energy Facility
Siting Council contemplate the future use of the remaining
portion of the water applied for in the original permit
application.
SECTION 6. { + Section 7 of this 2003 Act is added to and made
a part of ORS chapter 536. + }
SECTION 7. { + (1) Persons holding undeveloped water right
permits or certificates for municipal use may not develop or
expand the right until the Water Resources Commission has
reviewed the water resource used under the permit to ensure that
development or expansion of the right will not result in water
flow in the water resource that is less than is needed to support
public uses. The commission may consult with the State Department
of Fish and Wildlife, the State Parks and Recreation Department
and the Department of Environmental Quality to determine the
water flows necessary to support public uses within water
resources of this state.
(2) As used in this section:
(a) 'Municipal use' means the use of water for domestic or
industrial purposes by a city, a town, a domestic water supply
district organized under ORS chapter 264, a water supply
authority organized under ORS 450.665 to 450.680 or an irrigation
district organized under ORS chapter 545.
(b) 'Undeveloped water right permit or certificate' means a
permit or certificate that allows a greater duty or rate than the
current delivery system physically allows, for delivery on
January 1, 2003.
(c) 'Public use' includes but is not limited to recreation,
pollution abatement, navigation, conservation and maintenance and
enhancement of aquatic habitat, aquatic species and other
ecological values. + }
SECTION 8. { + (1) For purposes of this section, 'Willamette
Basin' means the geographic area that provides drainage for water
that eventually flows into the Willamette River.
(2) It is the policy of the State of Oregon that:
(a) By January 1, 2010, it shall be illegal for any person to
discharge into any water or on the ground within the Willamette
Basin, any substance containing elemental mercury, dioxins, lead
or polychlorinated biphenyls.
(b) By January 1, 2010, it shall be illegal for any person to
discharge into any water or on the ground of the Willamette Basin
any substance listed, as of that date, as a carcinogen by the
United States Environmental Protection Agency.
(c) By January 1, 2011, any city within the Willamette Basin
with a population that exceeds 500,000 shall restrict any sewage
flows into the Willamette River to no more than four incidences
per year and to a reduction of at least 94 percent from the
amount of sewage that was deposited in the Willamette River in
1970. + }
SECTION 9. { + As used in sections 9 to 15 of this 2003 Act:
(1) 'Department' means the Department of Revenue.
(2) 'Fertilizer' has the meaning given that term in ORS
633.311.
(3) 'Pesticide' has the meaning given that term in ORS 634.006.
(4) 'Retail sale' means a sale of pesticide or fertilizer to a
final user of that product. + }
SECTION 10. { + (1) An excise tax is imposed on the retail
sale of pesticides and fertilizers within this state.
(2) The tax shall be imposed at a rate of 5 percent of the
amount of the retail sale of the pesticide or fertilizer.
(3) The purchaser is liable for the payment of the tax imposed
under this section, but the retail seller of the pesticide or
fertilizer is required to collect the tax from the purchaser at
the time of the sale.
(4) The amount of tax collected by the retail seller shall be
considered as payment by the purchaser for that amount of tax.
(5) Any return made by the retail seller collecting the tax
shall be accepted by the Department of Revenue as evidence of
payments by purchasers of amounts of tax so indicated upon the
return. + }
SECTION 11. { + Every retail seller of pesticide responsible
for the collection of the tax under sections 9 to 15 of this 2003
Act shall keep records, render statements, make returns and
comply with rules adopted by the Department of Revenue with
respect to the tax. Whenever it is necessary in the judgment of
the department, the department may require the retail seller, by
notice served upon that person by first class mail, to keep
records, render statements or make returns sufficient to show
whether there is tax liability under sections 9 to 15 of this
2003 Act. + }
SECTION 12. { + (1) Every retail seller of pesticide or
fertilizer required to collect the tax under sections 9 to 15
shall file a return with the Department of Revenue on or before
the last day of the month following the end of each calendar
quarter, reporting the amount of tax due. The department shall
prescribe the form of the return required by this section. The
rules of the department shall require that returns be made under
penalties for false swearing.
(2) The retail seller shall remit the tax due to the department
at the time fixed for filing the return. + }
SECTION 13. { + (1) If the amount paid by a retail seller of
pesticide or fertilizer to the Department of Revenue under
section 12 of this 2003 Act exceeds the amount of tax due, the
department shall refund the amount of the excess with interest
thereon at the rate established under ORS 305.220 for each month
or fraction of a month from the date of payment of the excess
until the date of the refund. A refund may not be made to a
retail seller who fails to claim the refund within two years
after the due date for filing of the return with respect to which
the claim for refund relates.
(2) A pesticide or fertilizer purchaser's exclusive remedy in a
dispute involving tax liability shall be to file a claim with the
department. + }
SECTION 14. { + (1) Every retail seller of pesticide or
fertilizer required to collect the tax under sections 9 to 15 of
this 2003 Act shall be deemed to hold the same in trust for the
State of Oregon and for the payment thereof to the Department of
Revenue in the manner and at the time provided by section 12 of
this 2003 Act.
(2) At any time the retail seller required to collect the tax
fails to remit any amount deemed to be held in trust for the
State of Oregon or if the purchaser fails to pay the tax, the
department may enforce collection by the issuance of a distraint
warrant for the collection of the delinquent amount and all
penalties, interest and collection charges accrued thereon. Such
warrant shall be issued, docketed and proceeded upon in the same
manner and shall have the same force and effect as is prescribed
with respect to warrants for the collection of delinquent income
taxes. + }
SECTION 15. { + Unless the context requires otherwise, the
provisions of ORS chapters 305, 314 and 316 as to the audit and
examination of reports and returns, determination of
deficiencies, assessments, claims for refunds, penalties,
interest, jeopardy assessments, warrants, confidentiality and
disclosure of returns, conferences and appeals to the Oregon Tax
Court, and procedures relating thereto, apply to sections 9 to 15
of this 2003 Act the same as if the tax were a tax imposed upon
or measured by income. All such provisions apply to the
pesticide or fertilizer purchaser liable for the tax and to the
retail seller of pesticides or fertilizers required to collect
the tax. As to any amount collected and required to be remitted
to the department, the tax shall be considered a tax upon the
retail seller required to collect the tax and that seller shall
be considered a taxpayer. + }
SECTION 16. { + All moneys received by the Department of
Revenue pursuant to sections 9 to 15 of this 2003 Act shall be
paid to the State Treasurer to be held in a suspense account
established under ORS 293.445. After payment of refunds, the
balance of the moneys received shall be paid into the State
Treasury and credited to the Restoration and Protection
Subaccount of the Parks and Natural Resources Fund established
pursuant to ORS 541.377. + }
SECTION 17. { + Sections 9 to 15 of this 2003 Act apply to
retail sales of pesticide or fertilizer occurring on or after
January 1, 2004. + }
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