Chapter 625
AN ACT
HB 2294
Relating to fish screening; creating new provisions; amending ORS
196.810, 314.752, 315.138, 496.085, 496.303, 498.306, 498.316, 498.336,
498.341, 498.346, 509.910, 540.525 and 540.532; and repealing ORS 315.138,
498.311, 498.331 and 509.615.
Be It Enacted by the People of
the State of
SECTION 1. ORS 498.306 is amended to read:
498.306. (1) Any person
who diverts water[,
at a rate of less than 30 cubic feet per second,] from any body of water in
this state in which any fish, subject to the State Fish and Wildlife Commission’s
regulatory jurisdiction, exist may be required to install, operate and maintain
screening or by-pass devices to provide adequate protection for fish
populations present at the water diversion in accordance with the provisions of
this section.
(2)(a) The State
Department of Fish and Wildlife shall establish a cost-sharing program to
implement the installation of screening or by-pass devices on not less than [75] 150 water diversions or
150 cubic feet per second of diverted water [referred to in this section] per [year] biennium. The department shall select the water
diversions to be screened from the priority listing of diversions established
by the department and reviewed by the Fish Screening Task Force. The
installation of a screening or by-pass device may be required only [when] if:
(A) The water
diversion is 30 cubic feet per second or more;
(B) A new water right is
issued for the water diversion;
(C) The point of water
diversion is transferred as described in ORS 540.525;
[(A)] (D) Fewer than [75]
150 persons per [year] biennium
volunteer to request such installation on the diversions for which they are
responsible; or
[(B)] (E) The Fish Screening Task Force has reviewed and
approved the department’s request to require installation of screening or
by-pass devices in order to complete the screening of a stream system or stream
reach.
(b) The limitations on
the number of diversions or cubic feet per second of diverted water to
be screened as provided in this section do not prevent the installation of [fish] screening and by-pass devices for
diversions by persons responsible for diversions who are willing to pay the
full cost of installing [fish]
screening and by-pass devices.
(c) Cost-sharing
program funds may not be provided under this subsection for screening or
by-pass devices on a water diversion involving water rights issued on or after
January 1, 1996, unless the Fish Screening Task Force finds there is good cause
to allow an exception. The department shall give preference to diversions of 30
cubic feet per second or less when making cost-sharing program funds available.
(3) When selecting
diversions to be equipped with screening or by-pass devices, the department
shall attempt to solicit persons who may volunteer to request the installation
of such devices on the diversions for which they are responsible. When
selecting diversions to be equipped with screening or by-pass devices, the
department shall select those diversions that will provide protection to the
greatest number of indigenous naturally spawning fish possible.
(4) If the department
constructs and installs the [by-pass or]
screening or by-pass device, a fee shall be assessed against the person
responsible for the diversion in an amount that does not exceed [$5,000 or] 40 percent of the
construction and installation [cost of
the devices, whichever amount is the lesser] costs of the device.
The fee shall be paid into the Fish Screening Subaccount. If the person
responsible for the diversion constructs and installs the by-pass or screening
device, the person shall be reimbursed from the Fish Screening Subaccount or
other state funds in an amount that does not exceed [$10,000 or] 60 percent of the actual construction and installation
costs of the device[, whichever amount is
the lesser].
(5) The department’s
cost of major maintenance and repair of screening or by-pass devices shall be
paid from the Fish Screening Subaccount.
(6) The department is
responsible for major maintenance and repair of screening or by-pass devices
at water diversions of less than 30 cubic feet per second, and if failure
by the department to perform major maintenance on or repair such devices
results in damage or blockage to the water diversion on which [the devices have] a device has
been installed, the person responsible for the water diversion shall give
written notice of such damage or blockage to the department. If within seven
days of the notice, the department fails to take appropriate action to perform
major maintenance on or repair the [devices]
device, and to repair any damage that has occurred, the person responsible
for the water diversion may remove the device. If an emergency exists that will
result in immediate damage to livestock or crops, the person responsible for
the water diversion may remove the screening or by-pass device. A person
required to comply with this section is responsible for minor maintenance and
shall, in a timely manner, notify the department of the need for activities
associated with major maintenance.
(7) A person who
diverts water at a rate of 30 cubic feet per second or more is responsible for
all maintenance of an installed screening or by-pass device.
[(7)] (8) A person required to comply with this section may
design, construct and install screening or by-pass devices adequate to prevent
fish from leaving the body of water and entering the diversion or may request
the department to design, construct and install such devices. However, if a
person required to comply with this section fails to comply within 180 days
after notice to comply by the department, the department shall design, install,
[and] operate and maintain on
that person’s water diversion appropriate screening or by-pass devices and
shall charge and collect from the person the actual costs thereof in an amount
not to exceed the average cost for diversions of that size.
[(8)] (9) If the diversion requiring screening or by-pass
devices is located on public property, the department shall obtain from the
property owner approval or permits necessary for such devices. Activities of
the department pursuant to this section [shall]
may not interfere with existing rights of way or easements of the person
responsible for the diversion.
[(9)(a)] (10)(a) The department or
its agent has the right of ingress and egress to and from those places where
screening or by-pass devices are required, doing no unnecessary injury to the
property of the landowner, for the purpose of designing, installing,
inspecting, performing major maintenance on or repairing such devices.
(b) If a screening or
by-pass device installed by the department must be removed or replaced due to
inadequate design or faulty construction, the person responsible for the
diversion shall bear no financial responsibility for its replacement or
reconstruction.
(c) If a screening or
by-pass device installed by the person responsible for the diversion must be
removed or replaced due to faulty construction, the person shall bear full
financial responsibility for its replacement or reconstruction.
(d) If the person
responsible for a diversion on which a screening or by-pass device is installed
fails to conduct appropriate inspection and minor maintenance, the department
may perform such activities and charge and collect from the person responsible
a fee not to exceed [$25] $150
for each required visit to the location of the screening or by-pass device.
(e) If the department
determines that a person must install, operate, maintain, repair or replace a screening
or by-pass device under this section, the department shall notify the person,
by registered mail, of the specific action the person is required to take. The
person may request a contested case hearing before the State Fish and Wildlife
Commission, to be conducted as provided in ORS chapter 183.
[(10)] (11) [No] A
person [shall] may not
interfere with, tamper with, damage, destroy or remove in any manner not
associated with regular and necessary maintenance procedures any screening or
by-pass devices installed pursuant to this section.
[(11)] (12) The department may
maintain an action to cover any costs incurred by the department when a person
who is required to comply with this section fails to comply. Such action shall
be brought in the circuit court for the county in which the [water diversion is] screening or
by-pass device is located.
[(12)] (13) Upon receiving notice from the department to
comply with this section, a person responsible for a water diversion may be
excused from compliance if the person demonstrates to the Fish Screening Task
Force that:
(a) The installation and
operation of screening or by-pass devices would not prevent appreciable damage
to the fish populations in the body of water from which water is being
diverted.
(b) Installation and
operation of screening or by-pass devices would not be technically feasible.
(c) Installation of
screening or by-pass devices would result in undue financial hardship.
[(13)(a)] (14)(a) Not later than
January 1, 1996, the department, with the assistance of the Fish Screening Task
Force and the Water Resources Department, shall establish and publish an
updated priority listing of 3,500 water diversions in the state that should be
equipped with screening or by-pass devices. Changes may be made to the list
whenever deletions are made for any reason. The priority listing shall include
the name and address of the person currently responsible for the water
diversion, the location of the diversion, size of the diversion, type of
screening or by-pass device required, estimated costs for construction and [the] installation of screening or
by-pass devices for the individual diversion and species of fish present in the
water body. When developing the priority listing, the department shall base
priorities for the installation of screening or by-pass devices on unscreened
diversions on the following criteria:
(A) Fish species status.
(B) Fish numbers.
(C) Fish migration.
(D) Diversion size.
(E) Diversion amount.
(F) Any other criteria
that the department, in consultation with the Fish Screening Task Force,
considers appropriate.
(b) Criteria identified
in this subsection shall be given appropriate consideration by the department
when updating its priority listing. The priority [list] listing will be updated to give the highest priority
to those diversions that save the greatest number of fish and simultaneously
protect the greatest number of threatened or endangered fish species.
(c) After the priority [list] listing has been updated,
the persons responsible for the diversions on the list shall be notified that
their diversions appear on the list. Such persons also shall be furnished a
description of the fish screening cost-sharing program.
(d)(A) The department
shall notify, by means of registered mail, each person responsible for the
first 250 diversions on the priority listing on or before January 1, 1996. The
department shall furnish information regarding the fish screening cost-sharing
program to each person responsible for a diversion included in the first 250
diversions on the priority listing on or before January 1, 1996. [No] A person [shall] may not be required to
install a screening or by-pass device unless previously notified by the
department of the requirement to install such devices.
(B) On January 1 of each
even-numbered year, the department [will]
shall notify each person responsible for a diversion included in the
first 250 diversions on the priority listing. However, the department is not
required to notify in a subsequent year any person previously notified. The
department shall include with such notification[,] information regarding the fish
screening cost-sharing program [to
each person responsible for a diversion included in the first 250 diversions on
the priority listing].
(C) Before any person is
required to install a screening or by-pass device [on a diversion of less than 30 cubic feet per second], the
department shall confirm the need for the [screening]
device through a visual, on-site inspection by appropriate staff of the fish
screening division of the department, or a district biologist of the
department.
[(14)] (15) As used in this section:
(a) “Behavioral barrier”
means a system that utilizes a stimulus to take advantage of natural fish
behavior to attract or repel fish. A behavioral barrier does not offer a
physical impediment to fish movement, but uses such means as electricity,
light, sound or hydraulic disturbance to move or guide fish.
(b) “Body of water”
includes but is not limited to irrigation ditches, reservoirs, stock ponds and
other artificially created structures or impoundments.
(c) “By-pass device”
means any pipe, flume, open channel or other means of conveyance that
transports fish back to the body of water from which the fish were diverted but
does not include fishways or other passages around a dam.
(d) “Fish screen” means
a screen, bar, rack or other barrier, including related improvements necessary
to ensure its effective operation, to provide adequate protection for fish
populations present at a water diversion.
(e) “Major maintenance”
means all maintenance work done on a [fish]
screening or by-pass device other than minor maintenance.
(f) “Minor maintenance”
means periodic inspection, cleaning and servicing of [fish] screening or by-pass devices at such times and in such manner
as to ensure proper operation of the screening or by-pass device.
[(g) “Screening device” means a fish screen or behavioral barrier.]
[(h)] (g) “Person” means any person, partnership,
corporation, association, municipal corporation, political subdivision or
governmental agency.
(h) “Screening device”
means a fish screen or behavioral barrier.
SECTION 2. ORS 315.138 is amended to read:
315.138. (1) There shall
be allowed a credit against tax due under ORS chapter 316, or if the taxpayer
is a corporation, under ORS chapter 317, for taxpayers that install [fish] screening devices, by-pass devices
or fishways, [when required to do so by]
pursuant to ORS 498.306[, 498.311
(1),] or 509.585 [or 509.615
(1)], and the diversion is not part of a hydroelectric project required to
be licensed under the Federal Energy Regulatory Commission. Except as allowed
in subsection (4) of this section, the credit shall be taken in the tax year in
which the final certification is issued under subsection (10) of this section.
(2) The credit shall be
equal to 50 percent of the taxpayer’s net certified costs of installing a [fish] screening device, by-pass device
or fishway. The total credit allowed shall not exceed $5,000 per device
installed.
(3) The credit allowed
in any one year shall not exceed the tax liability of the taxpayer.
(4) Any tax credit
otherwise allowable under this section which is not used by the taxpayer in a
particular tax year may be carried forward and offset against the taxpayer’s
tax liability for the next succeeding tax year. Any credit remaining unused in
such next succeeding tax year may be carried forward and used in the second
succeeding tax year. Any credit remaining unused in such second succeeding tax
year may be carried forward and used in the third succeeding tax year. Any
credit remaining unused in such third succeeding tax year may be carried
forward and used in the fourth succeeding tax year. Any credit remaining unused
in such fourth succeeding tax year may be carried forward and used in the fifth
succeeding tax year, but may not be used in any tax year thereafter.
(5) The credit provided
by this section shall be in addition to and not in lieu of any depreciation or
amortization deduction to which the taxpayer otherwise may be entitled with
respect to the installation of a [fish]
screening device, by-pass device or fishway. The taxpayer’s adjusted basis for
determining gain or loss shall not be further decreased by any tax credits
allowed under this section.
(6) In the case of a
credit allowed under this section for purposes of ORS chapter 316:
(a) A nonresident shall
be allowed the credit in the same manner and subject to the same limitations as
a resident. However, the credit shall be prorated using the proportion provided
in ORS 316.117.
(b) If a change in the
taxable year of a taxpayer occurs as described in ORS 314.085, or if the
Department of Revenue terminates the taxpayer’s taxable year under ORS 314.440,
the credit allowed by this section shall be prorated or computed in a manner
consistent with ORS 314.085.
(c) If a change in the
status of a taxpayer from resident to nonresident or from nonresident to
resident occurs, the credit allowed by this section shall be determined in a
manner consistent with ORS 316.117.
(7) To qualify for the
credit the taxpayer must be issued a certificate by the State Department of
Fish and Wildlife.
(8) To obtain credit
under subsection (1) of this section, any person proposing to apply for
certification of a [fish] screening
device, by-pass device or fishway, before installing the [fish] screening device, by-pass device or fishway, shall file a
request for preliminary certification with the State Department of Fish and
Wildlife. The request shall be in a form prescribed by the State Department of
Fish and Wildlife. The following conditions shall apply:
(a) Within 30 days of
the receipt of a request for preliminary certification, the State Department of
Fish and Wildlife may require, as a condition precedent to issuance of a
preliminary certificate of approval, the submission of plans and
specifications. After examination thereof, the State Department of Fish and
Wildlife may request corrections and revisions to the plans and specifications.
The State Department of Fish and Wildlife may also require any pertinent
information necessary to determine whether the proposed [fish] screening device, by-pass device or fishway is in accordance
with State Department of Fish and Wildlife requirements.
(b) If the State
Department of Fish and Wildlife determines that the proposed [fish] screening device, by-pass device
or fishway is in accordance with State Department of Fish and Wildlife
requirements, it shall issue a preliminary certificate approving the [fish] screening device, by-pass device
or fishway. If the State Department of Fish and Wildlife determines that the [fish] screening device, by-pass device
or fishway does not comply with State Department of Fish and Wildlife
requirements, the State Department of Fish and Wildlife shall issue an order
denying certification.
(c) If within 90 days of
the receipt of plans, specifications or any subsequently requested revisions or
corrections to the plans and specifications or any other information required
pursuant to this section, the State Department of Fish and Wildlife fails to
issue a preliminary certificate of approval and the State Department of Fish
and Wildlife fails to issue an order denying certification, the preliminary
certificate shall be considered to have been issued. The capital investment
must comply with the plans, specifications and any corrections or revisions
thereto, if any, previously submitted.
(d) Within 30 days from
the date of mailing of the order, any person against whom an order is directed
pursuant to paragraph (b) of this subsection may demand a hearing. The demand
shall be in writing, shall state the grounds for hearing and shall be mailed to
the State Fish and Wildlife Director. The hearing shall be conducted in
accordance with the applicable provisions of ORS chapter 183.
(9) [Any fish] A screening device,
by-pass device or fishway that is installed by the State Department of Fish
and Wildlife pursuant to [ORS 498.311
(2)] ORS 498.306 (8) in response to noncompliance by the person
responsible for the water diversion is not eligible for the credit provided
in subsection (1) of this section.
(10) Upon completion and
pursuant to application for final certification, final certification shall be
issued by the State Department of Fish and Wildlife if the [fish] screening device, by-pass device
or fishway was constructed and installed in accordance with State Department of
Fish and Wildlife requirements. Final certification shall include a statement
of the costs of installation as verified by the State Department of Fish and
Wildlife. The credit allowed under this section shall be claimed first for the
tax year of the taxpayer in which final certification is issued.
(11) Pursuant to the
procedures for a contested case under ORS chapter 183, the State Department of
Fish and Wildlife may order the revocation of the certificate issued under this
section of any taxpayer, if it finds that:
(a) The certificate was
obtained by fraud or misrepresentation; or
(b) The holder of the
certificate fails to meet State Department of Fish and Wildlife requirements.
(12) As soon as the
order of revocation under this section has become final the State Department of
Fish and Wildlife shall notify the Department of Revenue of such order.
(13) If the certificate
of a [fish] screening device, by-pass
device or fishway is ordered revoked pursuant to subsection (11) of this
section, all prior tax relief provided to the holder of the certificate by
virtue of the certificate shall be forfeited and the Department of Revenue
shall proceed to collect those taxes not paid by the certificate holder as a
result of the tax relief provided to the holder.
(14) If the certificate
of a [fish] screening device, by-pass
device or fishway is ordered revoked pursuant to subsection (11) of this
section, the certificate holder shall be denied any further relief provided
under this section in connection with the [fish]
screening device, by-pass device or fishway, as the case may be, from and after
the date that the order of revocation becomes final.
(15) In the event that
the [fish] screening device, by-pass
device or fishway is destroyed by flood, natural disaster or act of God before
all of the credit has been used, the taxpayer may nevertheless claim the credit
as if no destruction had taken place.
(16) [Fish] Screening devices, by-pass devices
or fishways that are financed by funds obtained from the Water Development
Fund, pursuant to ORS 541.700 to 541.855, shall not be eligible for the credit
under any circumstances.
(17) The State
Department of Fish and Wildlife shall adopt rules for carrying out the
provisions of this section and report to the interim committee created under
ORS 171.605 to 171.640 to make studies of and inquiries into state revenue
matters.
SECTION 2a. ORS 315.138 is repealed.
SECTION 2b. The repeal of ORS 315.138 by section 2a of
this 2007 Act becomes operative on January 2, 2014.
SECTION 3. ORS 496.303 is amended to read:
496.303. (1) The Fish
and Wildlife Account is established in the State Treasury, separate and
distinct from the General Fund. All moneys in the account are continuously
appropriated to the State Fish and Wildlife Commission. The Fish and Wildlife
Account shall consist of the moneys in its various subaccounts and any moneys
transferred to the account by the Legislative Assembly. Unless otherwise
specified by law, interest earnings on moneys in the account shall be paid into
the State Treasury and credited to the State Wildlife Fund.
(2)(a) The Fish
Screening Subaccount is established in the Fish and Wildlife Account. The
subaccount shall consist of:
(A) All penalties
recovered under ORS 536.900 to 536.920.
(B) All moneys received
pursuant to ORS 498.306.
(C) All gifts, grants
and other moneys from whatever source that may be used to carry out the
provisions of ORS 498.306[, 498.311 and
509.615].
(D) All moneys received
from the surcharge on angling licenses imposed by ORS 497.124.
(b) All moneys in the
subaccount shall be used to carry out the provisions of ORS 315.138, 498.306[, 498.311, 509.615] and 509.620.
However, moneys received from the surcharge on angling licenses imposed by ORS
497.124 shall be expended only to carry out the provisions of law relating to
the screening of water diversions [at a
rate less than 30 cubic feet per second].
[(c) Of the moneys in the subaccount budgeted for administrative
expenses, up to 50 percent of that amount may be expended for activities
associated with the screening of diversions over 30 cubic feet per second and
for fish passages issues.]
(3) The Fish Endowment Subaccount
is established in the Fish and Wildlife Account. The subaccount shall consist
of transfers of moneys authorized by the Legislative Assembly from the State
Wildlife Fund and gifts and grants of moneys from whatever source for the
purpose of paying the expense of maintaining fish hatcheries operated by the
department.
(4) The Migratory
Waterfowl Subaccount is established in the Fish and Wildlife Account. All
moneys received by the commission from the sale of art works and prints related
to the migratory waterfowl stamp shall be deposited in the subaccount. Moneys
in the subaccount may be expended only for activities that promote the
propagation, conservation and recreational uses of migratory waterfowl and for
activities related to the design, production, issuance and arrangements for
sale of the migratory waterfowl stamps and related art works and prints.
Expenditures of moneys in the subaccount may be made within this state, in
other states or in foreign countries, in such amounts as the commission
determines appropriate. Expenditures in other states and foreign countries
shall be on such terms and conditions as the commission determines will benefit
most directly the migratory waterfowl resources of this state.
(5) The Halibut Research
Subaccount is established in the Fish and Wildlife Account. Based on the annual
number of recreational halibut anglers, a portion of the moneys derived from
the sale of the salmon, steelhead trout, sturgeon and halibut tag pursuant to
ORS 497.121 shall be credited to the subaccount. Moneys in the subaccount may
be expended only for halibut population studies and other research.
(6) The Upland Bird
Subaccount is established in the Fish and Wildlife Account. All moneys received
by the State Fish and Wildlife Commission from the sale of upland bird stamps,
from the sale of any art works and prints related to the upland bird stamp and
from private hunting preserve permit fees shall be deposited in the subaccount.
Moneys in the subaccount may be expended only for promoting the propagation and
conservation of upland birds and the acquisition, development, management,
enhancement, sale or exchange of upland bird habitat, and for activities
related to the design, production, issuance and arrangements for sale of the
upland bird stamps and related art works and prints. Expenditures of moneys in
the subaccount shall be made for the benefit of programs within this state in
such amounts and at such times as the commission determines appropriate to most
directly benefit the upland bird resources of the state.
(7)(a) The Fish and
Wildlife Deferred Maintenance Subaccount is established in the Fish and
Wildlife Account. Interest earnings on moneys in the subaccount shall be
credited to the subaccount. The subaccount shall consist of moneys authorized
by the Legislative Assembly from the State Wildlife Fund and moneys obtained by
gift, grant, bequest or donation from any other public or private source.
(b) The principal in the
subaccount may be utilized only as provided in paragraph (c) of this
subsection. Interest earnings on the moneys in the subaccount may be expended
only for the maintenance of fish hatcheries and State Department of Fish and
Wildlife facilities other than administrative facilities located in [
(c) The department may
borrow funds from the principal of the subaccount to maintain adequate cash
flow requirements. However, moneys borrowed from the principal must be repaid
to the subaccount:
(A) Within six months
from the date on which the moneys were borrowed.
(B) With interest at the
standard rate that the State Treasurer charges to state agencies for other
loans. Interest paid under this subparagraph shall be paid to the subaccount.
(d) For purposes of this
subsection, “principal” means moneys authorized by the Legislative Assembly for
transfer to the subaccount from the State Wildlife Fund, including any
assignment of earnings on moneys in the fund and other moneys obtained by gift,
grant, bequest or donation deposited into the subaccount.
(8) The Access and
Habitat Board Subaccount is established in the Fish and Wildlife Account. The
subaccount shall consist of moneys transferred to the subaccount pursuant to
ORS 496.242. Moneys in the subaccount may be used for the purposes specified in
ORS 496.242.
(9) The Marine Shellfish
Subaccount is established in the Fish and Wildlife Account. Interest earnings
on moneys in the subaccount shall be credited to the subaccount. All moneys
received by the commission from the sale of resident and nonresident shellfish
licenses pursuant to ORS 497.121 shall be deposited in the subaccount. Moneys
in the subaccount shall be used for the protection and enhancement of shellfish
for recreational purposes, including shellfish sanitation costs and the cost of
enforcement of wildlife laws pertaining to the taking of shellfish. The State
Fish and Wildlife Director, or a designee, the Director of Agriculture, or a
designee, and the Superintendent of State Police, or a designee, shall jointly
make a recommendation to the Governor for inclusion in the Governor’s budget
beginning July 1 of each odd-numbered year.
(10)(a) The Mountain
Sheep Subaccount is established in the Fish and Wildlife Account, consisting of
moneys collected under ORS 497.112 (2)(a) to (c).
(b) All moneys in the
subaccount shall be used for the propagation and conservation of mountain
sheep, for research, development, management, enhancement and sale or exchange
of mountain sheep habitat and for programs within the state that in the
discretion of the commission most directly benefit mountain sheep resources of
this state.
(11)(a) The Antelope
Subaccount is established in the Fish and Wildlife Account, consisting of
moneys collected under ORS 497.112 (2)(a) to (c).
(b) All moneys in the
subaccount shall be used for the propagation and conservation of antelope, for
research, development, management, enhancement and sale or exchange of antelope
habitat and for programs within the state that in the discretion of the
commission most directly benefit antelope resources of this state.
(12)(a) The Mountain
Goat Subaccount is established in the Fish and Wildlife Account, consisting of
moneys collected under ORS 497.112 (2)(a) to (c).
(b) All moneys in the
subaccount shall be used for the propagation and conservation of mountain goats
for research, development, management, enhancement and sale or exchange of
mountain goat habitat and for programs within the state that in the discretion
of the commission most directly benefit mountain goat resources of this state.
(13)(a) The commission
shall keep a record of all moneys deposited in the Fish and Wildlife Account.
The record shall indicate by separate cumulative accounts the sources from
which the moneys are derived and the individual activity or programs against
which each withdrawal is charged.
(b) Using the record
created pursuant to paragraph (a) of this subsection, the commission shall
report, in the budget documents submitted to the Legislative Assembly, on the
application of investment and interest earnings to the maintenance of fish
hatcheries and other State Department of Fish and Wildlife facilities.
SECTION 4. 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 of any waters of this state or fill any waters of this
state without a permit issued under authority of the Director of the Department
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 (13), if any removal or fill activity is proposed in essential
indigenous anadromous salmonid habitat, except for those activities customarily
associated with agriculture, a permit is required. “Essential indigenous
anadromous salmonid habitat” as defined under this section shall be further
defined and designated by rule by the Department 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
require 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,] 498.306,
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 Department 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 department 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 department.
(c) If issued orally,
shall be confirmed in writing by the department within five days.
SECTION 5. ORS 196.810, as amended by section 2, chapter
516, Oregon Laws 2001, and section 97, chapter 14, Oregon Laws 2003, is amended
to read:
196.810. (1)(a) Except as otherwise specifically permitted under ORS
196.600 to 196.905, a person or governmental body may not remove any material
from the beds or banks of any waters of this state or fill any waters of
this state without a permit issued under authority of the Director of the
Department 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) A permit is not
required under paragraph (a) 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 particular
stream 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 require a permit under paragraph
(a) of this subsection.
(c) A permit is not
required under paragraph (a) of this subsection for construction or maintenance
of fish passage and fish screening structures associated with irrigation
ditches or the maintenance of drainage ditches that are constructed, operated
or maintained under ORS [498.311,] 498.306,
498.316, 498.326 or 509.600 to 509.645.
(d) Nothing in this
section limits or otherwise changes the exemptions under ORS 196.905.
(2) A governmental body
may not 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, a contract, permit or lease may not 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 Department 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 department 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 department.
(c) If issued orally,
shall be confirmed in writing by the department within five days.
(5) As used in this
section:
(a) “Bed” means the land
within the wet perimeter and any adjacent nonvegetated dry gravel bar.
(b) “Prospecting” means
searching or exploring for samples of gold, silver or other precious minerals,
using nonmotorized methods, from among small quantities of aggregate.
(c) “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.
SECTION 5a. ORS 496.085 is amended to read:
496.085. (1) There is established within the State Department of Fish and
Wildlife the Fish Screening Task Force consisting of seven members appointed by
the State Fish and Wildlife Commission.
(2) Three members shall
be appointed to represent agricultural interests, three shall be appointed to
represent fishing or fish conservation interests and one member shall be
appointed to represent the public. Members of the task force shall serve for
two-year terms. No member of the task force shall serve for more than three
consecutive two-year terms.
(3) A member of the task
force shall receive no compensation for services as a member. However, subject
to any applicable law regulating travel and other expenses of state officers
and employees, a member shall be reimbursed for actual and necessary travel and
other expenses incurred in the performance of official duties from such moneys
as may be available therefor in the State Wildlife Fund.
(4) The task force shall
meet at such times and places as may be determined by the chair or by a
majority of the members of the task force.
(5) The duties of the
task force are:
(a) To advise the
department in the development of a comprehensive cost-sharing program for the
installation of fish screening or by-pass devices in water diversions.
(b) To advise the
department in establishing a stable and equitable funding system for the
installation and maintenance of fish screening and by-pass devices.
(c) To advise the
department in identifying sources and applying for grants from local, state and
federal governmental agencies for funding the installation and maintenance of
fish screening and by-pass devices.
(d) To advise the
department in monitoring fish screening programs.
(e) To advise the department
in a survey and study of fish screening technology to determine the most
cost-effective alternatives for screening in the various situations that may be
encountered in the implementation of fish screening in this state.
(f) To advise the
department in preparing a report on the capital costs and effectiveness of the
program provided in ORS 498.306.
(g) To advise the
department on the creation of the priority criteria and the priority listing
referred to in ORS 498.306 [(13)(a) or (d)] (14)(a) or (d).
SECTION 6. ORS 498.316 is amended to read:
498.316. ORS 498.306 [and 498.311 do] does not require
the installation of [fish] screening
or by-pass devices in those water diversions for which the State Fish and
Wildlife Commission, by contract or other form of agreement with the person
diverting the water, has made such other provision as the commission determines
is adequate for the protection of the game fish in the body of water from which
water is being diverted.
SECTION 7. ORS 498.341 is amended to read:
498.341. Notwithstanding
the [limitation on the number of
diversions to be screened as provided in] limitations imposed by ORS
498.306, if sufficient funds are made available in the Fish Screening
Subaccount of the Fish and Wildlife Account, by allocation from the
Administrative Services Economic Development Fund or from other sources, the
State Department of Fish and Wildlife may provide financial assistance for
construction and installation of screening or by-pass devices on [an] additional [250] water diversions.
SECTION 8. ORS 498.346 is amended to read:
498.346. The State Fish
and Wildlife Commission may maintain a suit to enjoin any person, including
governmental agencies of this state and political subdivisions of this state,
from violating the provisions of ORS 498.306 [or 498.311]. The circuit court for any county in which are situated
any waters in which any such violations are threatened has jurisdiction of the
suit authorized by this section.
SECTION 9. ORS 498.336 is amended to read:
498.336. Nothing in ORS
498.306[, 498.311,] or 509.585
[or 509.615] shall be construed:
(1) To limit the
eligibility of a person required to install and operate [fish] screening or by-pass devices to obtain funding from the Water
Development Fund pursuant to ORS 541.700 to 541.855.
(2) To limit the
acquisition or acceptance of any federal funds available for the installation,
operation, maintenance, improvement or repair of [fish] screening or by-pass devices on water diversions in this
state[, regardless of the size of the
diversion].
SECTION 10. ORS 509.910 is amended to read:
509.910. (1) The State
Fish and Wildlife Commission may maintain an action for an injunction to enjoin
and restrain any person, municipal corporation, political subdivision or
governmental agency of this state from violating any of the provisions of ORS
509.130, 509.140, 509.505, 509.585, 509.610[,
509.615] and 509.625.
(2) Any action
authorized by this section shall be tried in the circuit court of the county in
which the violation occurs or in
(3) If the defendant is
a corporation with its principal office and place of business in a county other
than in which the waters flow or are situated, such action shall be deemed an
action of local nature and service of summons made on a corporation in any
county where the corporation has its principal office and place of business. If
it is a foreign corporation, service may be made on the statutory agent but if
there is no such statutory agent then upon the Secretary of State as in other
cases provided by law.
SECTION 11. ORS 540.525 is amended to read:
540.525. (1) Upon
receipt of an application for a change in the point of diversion under ORS
540.520, the Water Resources Department shall consult with the State Department
of Fish and Wildlife to determine whether the diversion is:
(a) Equipped with an
appropriate fish screening or by-pass device; or
(b) Included on the
priority list of screening projects established pursuant to section 8, chapter
933, Oregon Laws 1989.
(2) If the original
point of diversion is included in the priority list of screening projects
established pursuant to section 8, chapter 933, Oregon Laws 1989, the
department, after consulting with the State Department of Fish and Wildlife,
may require the installation of an appropriate fish screening or by-pass device
at the new point of diversion.
(3) When consulting with
the State Department of Fish and Wildlife, the department shall determine
whether the installation of an appropriate fish screening or by-pass device is
necessary to prevent fish from leaving the body of water and entering the
diversion.
(4) Any individual who
is required to install a fish screening or by-pass device under this section at
a point of diversion [for a diversion of
under 30 cubic feet per second] may participate in the State Department of
Fish and Wildlife’s [cost sharing] cost-sharing
program for the installation of screening or by-pass devices.
SECTION 12. ORS 540.532 is amended to read:
540.532. (1) Notwithstanding
ORS 537.797, 540.510, 540.520 and 540.530, an individual may request a change
in the point of diversion to reflect the historical use of water at a point of
diversion other than that described in the water right certificate or decree if
the individual complies with the provisions of subsection (2) of this section.
(2) An individual may
request a change in the point of diversion under subsection (1) of this section
if:
(a) The actual, current
point of diversion has been in use for more than 10 years;
(b) The Water Resources
Department has received no claim of injury as a result of the use of water from
the current point of diversion prior to the request for the change of
diversion;
(c) The individual
requesting the change provides written notice to any other affected water right
holder, as identified by the Water Resources Department, and the Water
Resources Department provides notice of the request in the department’s public
notice of water right applications; and
(d) The individual
provides a map of sufficient detail and clarity to identify the true point of
diversion including but not limited to:
(A) The county tax lot
number, township, range and section, and to the nearest quarter-quarter section
or latitude and longitude as established by a global positioning system; and
(B) The locations of the
point of diversion as specified in the water right certificate or decree and
the actual, current point of diversion.
(3) Upon receipt of a
request for a change in the point of diversion under subsection (1) of this
section, the Water Resources Department shall consult with the State Department
of Fish and Wildlife to determine whether the historical point of diversion is:
(a) Equipped with an
appropriate fish screening or by-pass device; or
(b) Included on the
priority list of screening projects established pursuant to section 8, chapter
933, Oregon Laws 1989.
(4) If the historical
point of diversion is included in the priority list of screening projects
established pursuant to section 8, chapter 933, Oregon Laws 1989, the Water
Resources Department, after consulting with the State Department of Fish and
Wildlife, may require the installation of an appropriate fish screening or
by-pass device at the point of diversion.
(5) When consulting with
the State Department of Fish and Wildlife, the Water Resources Department shall
determine whether the installation of an appropriate fish screening or by-pass
device is necessary to prevent fish from leaving the body of water and entering
the diversion.
(6) Any individual who
is required to install a fish screening or by-pass device under this section at
a point of diversion [for a diversion of
under 30 cubic feet per second] may participate in the State Department of
Fish and Wildlife’s cost-sharing program for the installation of screening or
by-pass devices.
SECTION 13. ORS 314.752 is amended to read:
314.752. (1) Except as
provided in ORS 314.740 (5)(b), the tax credits allowed or allowable to a C
corporation for purposes of ORS chapter 317 or 318 shall not be allowed to an S
corporation. The business tax credits allowed or allowable for purposes of ORS
chapter 316 shall be allowed or are allowable to the shareholders of the S
corporation.
(2) In determining the
tax imposed under ORS chapter 316, as provided under ORS 314.734, on income of
the shareholder of an S corporation, there shall be taken into account the
shareholder’s pro rata share of business tax credit (or item thereof) that
would be allowed to the corporation (but for subsection (1) of this section) or
recapture or recovery thereof. The credit (or item thereof), recapture or
recovery shall be passed through to shareholders in pro rata shares as
determined in the manner prescribed under section 1377(a) of the Internal
Revenue Code.
(3) The character of any
item included in a shareholder’s pro rata share under subsection (2) of this
section shall be determined as if such item were realized directly from the
source from which realized by the corporation, or incurred in the same manner
as incurred by the corporation.
(4) If the shareholder
is a nonresident and there is a requirement applicable for the business tax
credit that in the case of a nonresident the credit be allowed in the
proportion provided in ORS 316.117, then that provision shall apply to the
nonresident shareholder.
(5) As used in this
section, “business tax credit” means a tax credit granted to personal income
taxpayers to encourage certain investment, to create employment, economic
opportunity or incentive or for charitable, educational, scientific, literary
or public purposes that is listed under this subsection as a business tax
credit or is designated as a business tax credit by law or by the Department of
Revenue by rule and includes but is not limited to the following credits: ORS
285C.309 (tribal taxes on reservation enterprise zones), ORS 315.104
(forestation and reforestation), ORS 315.134 (fish habitat improvement), [ORS 315.138 (fish screening, by-pass
devices, fishways),] ORS 315.156 (crop gleaning), ORS 315.164 and 315.169
(farmworker housing), ORS 315.204 (dependent care assistance), ORS 315.208
(dependent care facilities), ORS 315.213 (contributions for child care), ORS
315.254 (youth apprenticeship sponsorship), ORS 315.304 (pollution control
facility), ORS 315.324 (plastics recycling), ORS 315.354 and ORS 469.207
(energy conservation facilities), ORS 315.507 (electronic commerce), ORS
315.511 (advanced telecommunications facilities), ORS 315.604 (bone marrow
transplant expenses) and ORS 317.115 (fueling stations necessary to operate an
alternative fuel vehicle).
SECTION 14. ORS 496.303, as amended by section 3 of this
2007 Act, is amended to read:
496.303. (1) The Fish
and Wildlife Account is established in the State Treasury, separate and
distinct from the General Fund. All moneys in the account are continuously
appropriated to the State Fish and Wildlife Commission. The Fish and Wildlife
Account shall consist of the moneys in its various subaccounts and any moneys
transferred to the account by the Legislative Assembly. Unless otherwise
specified by law, interest earnings on moneys in the account shall be paid into
the State Treasury and credited to the State Wildlife Fund.
(2)(a) The Fish
Screening Subaccount is established in the Fish and Wildlife Account. The
subaccount shall consist of:
(A) All penalties
recovered under ORS 536.900 to 536.920.
(B) All moneys received
pursuant to ORS 498.306.
(C) All gifts, grants
and other moneys from whatever source that may be used to carry out the
provisions of ORS 498.306.
(D) All moneys received
from the surcharge on angling licenses imposed by ORS 497.124.
(b) All moneys in the
subaccount shall be used to carry out the provisions of ORS [315.138,] 498.306 and 509.620. However,
moneys received from the surcharge on angling licenses imposed by ORS 497.124
shall be expended only to carry out the provisions of law relating to the
screening of water diversions.
(3) The Fish Endowment
Subaccount is established in the Fish and Wildlife Account. The subaccount
shall consist of transfers of moneys authorized by the Legislative Assembly
from the State Wildlife Fund and gifts and grants of moneys from whatever
source for the purpose of paying the expense of maintaining fish hatcheries
operated by the department.
(4) The Migratory
Waterfowl Subaccount is established in the Fish and Wildlife Account. All
moneys received by the commission from the sale of art works and prints related
to the migratory waterfowl stamp shall be deposited in the subaccount. Moneys
in the subaccount may be expended only for activities that promote the
propagation, conservation and recreational uses of migratory waterfowl and for
activities related to the design, production, issuance and arrangements for
sale of the migratory waterfowl stamps and related art works and prints.
Expenditures of moneys in the subaccount may be made within this state, in
other states or in foreign countries, in such amounts as the commission
determines appropriate. Expenditures in other states and foreign countries
shall be on such terms and conditions as the commission determines will benefit
most directly the migratory waterfowl resources of this state.
(5) The Halibut Research
Subaccount is established in the Fish and Wildlife Account. Based on the annual
number of recreational halibut anglers, a portion of the moneys derived from
the sale of the salmon, steelhead trout, sturgeon and halibut tag pursuant to
ORS 497.121 shall be credited to the subaccount. Moneys in the subaccount may
be expended only for halibut population studies and other research.
(6) The Upland Bird
Subaccount is established in the Fish and Wildlife Account. All moneys received
by the State Fish and Wildlife Commission from the sale of upland bird stamps,
from the sale of any art works and prints related to the upland bird stamp and
from private hunting preserve permit fees shall be deposited in the subaccount.
Moneys in the subaccount may be expended only for promoting the propagation and
conservation of upland birds and the acquisition, development, management,
enhancement, sale or exchange of upland bird habitat, and for activities
related to the design, production, issuance and arrangements for sale of the
upland bird stamps and related art works and prints. Expenditures of moneys in
the subaccount shall be made for the benefit of programs within this state in
such amounts and at such times as the commission determines appropriate to most
directly benefit the upland bird resources of the state.
(7)(a) The Fish and
Wildlife Deferred Maintenance Subaccount is established in the Fish and
Wildlife Account. Interest earnings on moneys in the subaccount shall be
credited to the subaccount. The subaccount shall consist of moneys authorized
by the Legislative Assembly from the State Wildlife Fund and moneys obtained by
gift, grant, bequest or donation from any other public or private source.
(b) The principal in the
subaccount may be utilized only as provided in paragraph (c) of this
subsection. Interest earnings on the moneys in the subaccount may be expended
only for the maintenance of fish hatcheries and State Department of Fish and
Wildlife facilities other than administrative facilities located in
(c) The department may
borrow funds from the principal of the subaccount to maintain adequate cash flow
requirements. However, moneys borrowed from the principal must be repaid to the
subaccount:
(A) Within six months
from the date on which the moneys were borrowed.
(B) With interest at the
standard rate that the State Treasurer charges to state agencies for other
loans. Interest paid under this subparagraph shall be paid to the subaccount.
(d) For purposes of this
subsection, “principal” means moneys authorized by the Legislative Assembly for
transfer to the subaccount from the State Wildlife Fund, including any
assignment of earnings on moneys in the fund and other moneys obtained by gift,
grant, bequest or donation deposited into the subaccount.
(8) The Access and
Habitat Board Subaccount is established in the Fish and Wildlife Account. The
subaccount shall consist of moneys transferred to the subaccount pursuant to
ORS 496.242. Moneys in the subaccount may be used for the purposes specified in
ORS 496.242.
(9) The Marine Shellfish
Subaccount is established in the Fish and Wildlife Account. Interest earnings
on moneys in the subaccount shall be credited to the subaccount. All moneys
received by the commission from the sale of resident and nonresident shellfish
licenses pursuant to ORS 497.121 shall be deposited in the subaccount. Moneys
in the subaccount shall be used for the protection and enhancement of shellfish
for recreational purposes, including shellfish sanitation costs and the cost of
enforcement of wildlife laws pertaining to the taking of shellfish. The State
Fish and Wildlife Director, or a designee, the Director of Agriculture, or a
designee, and the Superintendent of State Police, or a designee, shall jointly
make a recommendation to the Governor for inclusion in the Governor’s budget
beginning July 1 of each odd-numbered year.
(10)(a) The Mountain
Sheep Subaccount is established in the Fish and Wildlife Account, consisting of
moneys collected under ORS 497.112 (2)(a) to (c).
(b) All moneys in the
subaccount shall be used for the propagation and conservation of mountain
sheep, for research, development, management, enhancement and sale or exchange
of mountain sheep habitat and for programs within the state that in the
discretion of the commission most directly benefit mountain sheep resources of
this state.
(11)(a) The Antelope
Subaccount is established in the Fish and Wildlife Account, consisting of
moneys collected under ORS 497.112 (2)(a) to (c).
(b) All moneys in the
subaccount shall be used for the propagation and conservation of antelope, for
research, development, management, enhancement and sale or exchange of antelope
habitat and for programs within the state that in the discretion of the
commission most directly benefit antelope resources of this state.
(12)(a) The Mountain
Goat Subaccount is established in the Fish and Wildlife Account, consisting of
moneys collected under ORS 497.112 (2)(a) to (c).
(b) All moneys in the
subaccount shall be used for the propagation and conservation of mountain goats
for research, development, management, enhancement and sale or exchange of
mountain goat habitat and for programs within the state that in the discretion
of the commission most directly benefit mountain goat resources of this state.
(13)(a) The commission
shall keep a record of all moneys deposited in the Fish and Wildlife Account. The
record shall indicate by separate cumulative accounts the sources from which
the moneys are derived and the individual activity or programs against which
each withdrawal is charged.
(b) Using the record
created pursuant to paragraph (a) of this subsection, the commission shall
report, in the budget documents submitted to the Legislative Assembly, on the
application of investment and interest earnings to the maintenance of fish
hatcheries and other State Department of Fish and Wildlife facilities.
SECTION 15. The amendments to ORS 314.752 and 496.303
by sections 13 and 14 of this 2007 Act become operative on January 2, 2014.
SECTION 16. ORS 498.311, 498.331 and 509.615 are
repealed.
SECTION 17. The amendments to ORS 315.138 by section 2
of this 2007 Act apply to tax credits for screening devices, by-pass devices
and fishways first claimed in tax years beginning on or after January 1, 2008,
and before January 1, 2014.
Approved by the Governor June 26, 2007
Filed in the office of Secretary of State June 27, 2007
Effective date January 1, 2008
__________