Chapter 849
AN ACT
HB 2105
Relating to Department of State Lands;
creating new provisions; amending ORS 196.620, 196.643, 196.682, 196.686,
196.800, 196.810, 196.815, 196.825, 196.850, 196.860, 196.865 and 196.875; and
declaring an emergency.
Be It Enacted by the People of
the State of
FEES
SECTION 1. ORS 196.815 is amended to read:
196.815. (1) [Each applicant for a] A person who is
required to have a permit to remove material from the bed or banks or fill
any waters of this state [first]
shall file a written application with the Director of the Department of State
Lands[, specifying the nature and amount
of material to be removed or the amount of fill, the waters and the specific
location from which it is to be removed or where the fill will be placed, the
method of removal or filling and the times during which removal or filling is
to be conducted. The director may require additional information as is
necessary to enable the director to determine whether the granting of the
permit applied for is consistent with the protection, conservation and best use
of the water resources of this state. For the purposes of this subsection,
fills or removals of material at locations not more than one mile apart may be
combined in one application] for each individual project before
performing any removal or fill.
[(2) The Director of the Department of State Lands shall furnish to any
member of the public upon written request and at the expense of the member of
the public a copy of any application for a permit pursuant to subsection (1) of
this section.]
[(3)(a)] (2)(a) Each application
under subsection (1) of this section must be accompanied by a base fee in
accordance with the following schedule:
(A) For a removal by a
private operator, or a person contracting to perform services for a private
operator, [$50] $85.
(B) For a removal by a
public body, [$150] $250.
(C) For a removal by a
commercial operator, [$150] $250.
(D) For a fill by a
private operator, or a person contracting to perform services for a private
operator, [$150] $250.
(E) For a fill by a
public body, [$375] $620.
(F) For a fill by a
commercial operator, [$375] $620.
(G) For erosion-flood
repair, including riprap, [by a private
landowner or public body, or a person contracting to perform services for such
persons,] no fee.
(b) In addition to the
base fee for removal established under paragraph (a) of this subsection, each
applicant shall also pay as part of the application fee the following fee based
on the volume of removal material:
(A) Less than 500 cubic
yards, no volume fee.
(B) 500 to [4,999] less than 5,000 cubic
yards, [$75 for private operator, $75 for
public body and $75 for commercial operator] $125.
(C) 5,000 to less
than or equal to 50,000 cubic yards, [$150
for private operator, $150 for public body and $150 for commercial operator]
$250.
(D) Over 50,000 cubic
yards, [$225 for private operator, $225
for public body and $225 for commercial operator] $375.
(c) In addition to the
base fee for fill established under paragraph (a) of this subsection, each
applicant shall also pay as part of the application fee the following fee based
on the volume of fill material:
(A) Less than 500 cubic
yards, no volume fee.
(B) 500 to [2,999] less than 3,000 cubic
yards, [$75 for private operator, $75 for
public body and $75 for commercial operator] $125.
(C) 3,000 to less
than or equal to 10,000 cubic yards, [$150
for private operator, $150 for public body and $150 for commercial operator]
$250.
(D) Over 10,000 cubic yards,
[$225 for private operator, $225 for
public body and $225 for commercial operator] $375.
(d) For the purposes of
this subsection[,
the following terms shall have the following meanings]:
(A) “Private operator”
means any person undertaking a project for exclusively a nonincome-producing
and nonprofit purpose;
(B) “Public body” means
federal, state, and local governmental bodies, unless specifically exempted by
law, engaged in projects for the purpose of providing free public services;
(C) “Commercial operator”
means any person undertaking a project having financial profit as a goal;
(D) “Riprap” means the
facing of a streambank with rock or similar substance to control erosion in
accordance with regulations promulgated by the Department of State Lands; and
(E) “Erosion-flood
repair” means riprap or any other work necessary to preserve existing
facilities and land from flood and high streamflows, in accordance with
regulations promulgated by the department.
[(4)] (3) For each application that involves both removal and
filling, the application fee assessed shall be either for removal or filling,
whichever is higher according to the fee schedule in subsection [(3)] (2) of this section.
(4) The department
may waive the fees specified in subsection (2) of this section for a permit
that will be used to perform a voluntary habitat restoration project.
(5) A person who
receives an emergency authorization under ORS 196.810 to remove material from
the beds or banks of any waters of this state or to fill any waters of this
state shall, within 45 days after receiving the authorization, submit a fee to
the department calculated in the manner provided under this section for permit
applications.
[(5)] (6) [Annually]
Prior to or on the anniversary date of the permit, each holder of a
material removal or fill permit shall pay a fee during the term of the permit
in accordance with the schedule set forth in subsection [(3)] (2) of this section, except that the applicant shall
pay only the base fee. The permit shall be suspended during any period of
delinquency of payment as though no permit was applied for. Notwithstanding
this subsection the director may, before granting [any extension] a renewal of the permit, require the
permittee to show that the continued exercise of the permit is consistent with
the protection, conservation and best use of the water
resources of this state.
[(6)] (7) Fees received under this section shall be credited
to the Common School Fund for use by the department in administration of ORS 196.600
to 196.905[, 196.990 and 541.990 and as
otherwise required by law].
(8) The director
shall issue an order revising the fees specified in this section on January 1
of each year, beginning in 2009, based on changes in the Portland-Salem, OR-WA
Consumer Price Index for All Urban Consumers for All Items as published by the
Bureau of Labor Statistics of the United States Department of Labor. The
director shall round the amount of each fee to the nearest dollar. The revised
fees shall take effect January 1 and apply for that calendar year.
DEFINITIONS
SECTION 2. 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) “Department” means the Department of State Lands.]
[(3) “Director” means the Director of the Department of State Lands.]
[(4)] (2) “Estuary” means:
(a) For waters other
than the Columbia River, the
[a] body of water [semienclosed] from the ocean to the
head of tidewater that is partially enclosed by land and [connected with the open ocean] within
which salt water is usually diluted by fresh water [derived] from the land[. “Estuary”
includes], including all associated estuarine waters, tidelands,
tidal marshes and submerged lands [extending
upstream to the head of tidewater.]; and
(b) [However,]
For the Columbia River [Estuary
extends], all waters from the mouth of the river up to the western
edge of Puget Island, including all associated estuarine waters, tidelands,
tidal marshes and submerged lands.
[(5)] (3) “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)] (4) “General authorization” means [a rule adopted by the director authorizing, without a permit from the
department,] an authorization granted under ORS 196.850 for a
category of activities involving removal or fill, or both, [on a statewide or other geographic basis]
without a permit.
[(7) “Governmental body” includes the federal government when operating
in any capacity other than navigational servitude, the State of
(5) “General permit”
means a permit for removal activities or fill activities that are substantially
similar in nature, are recurring or ongoing, and have predictable effects and
outcomes.
[(8)] (6) “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)] (7) “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)] (8) “Mitigation” means the reduction of adverse
effects of a proposed project by considering, in the following order:
(a)
Avoiding the [impact] effect
altogether by not taking a certain action or parts of an action;
(b) Minimizing [impacts] the effect by limiting
the degree or magnitude of the action and its implementation;
(c) Rectifying the [impact] effect by repairing,
rehabilitating or restoring the affected environment;
(d) Reducing or
eliminating the [impact] effect
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] effect by replacing
or providing comparable substitute wetland or water resources.
(9) “Person” means a person,
a public body as defined in ORS 174.109, the federal government, when operating
in any capacity other than navigational servitude, or any other legal entity.
[(11)] (10) “Practicable” means capable of being accomplished
after taking into consideration the cost, existing technology and logistics
with respect to the overall project purpose.
[(12)] (11) “Public use” means a publicly owned project or a
privately owned project that is available for use by the public.
[(13)] (12) “Removal” means:
(a) 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
(b) The movement
by artificial means of an equivalent amount of material on or within the bed of
such waters, including channel relocation.
[(14)] (13) “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.
[(15)] (14) “Waters of this state” means all 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] that
is in the boundaries of this state[. “Waters
of this state” does not include], all other navigable and nonnavigable
bodies of water in this state and those portions of 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.
[(16)] (15) “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.
[(17)] (16) “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 3. ORS 196.800, as amended by section 1, chapter
516, Oregon Laws 2001, section 8, chapter 253, Oregon Laws 2003, and section
15, chapter 738, Oregon Laws 2003, 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) “Department” means the Department of State Lands.]
[(3) “Director” means the Director of the Department of State Lands.]
[(4)] (2) “Estuary” means:
(a) For waters other
than the Columbia River, the
[a] body of water [semienclosed] from the ocean to the
head of tidewater that is partially enclosed by land and [connected with the open ocean] within
which salt water is usually diluted by fresh water [derived] from the land[. “Estuary”
includes], including all associated estuarine waters,
tidelands, tidal marshes and submerged lands [extending upstream to the head of tidewater. However,]; and
(b) For the Columbia River [Estuary extends], all waters from the mouth of the river up
to the western edge of Puget Island, including all associated estuarine
waters, tidelands, tidal marshes and submerged lands.
[(5)] (3) “Fill” means the deposit by artificial means of
material at one location in any waters of this state.
[(6)] (4) “General authorization” means [a rule adopted by the director authorizing, without a permit from the
department,] an authorization granted under ORS 196.850 for a
category of activities involving removal or fill, or both, [on a statewide or other geographic basis]
without a permit.
(5) “General permit”
means a permit for removal activities or fill activities that are substantially
similar in nature, are recurring or ongoing, and have predictable effects and
outcomes.
[(7) “Governmental body” includes the federal government when operating
in any capacity other than navigational servitude, the State of
[(8)] (6) “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)] (7) “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)] (8) “Mitigation” means the reduction of adverse
effects of a proposed project by considering, in the following order:
(a)
Avoiding the [impact] effect
altogether by not taking a certain action or parts of an action;
(b) Minimizing [impacts] the effect by limiting
the degree or magnitude of the action and its implementation;
(c) Rectifying the [impact] effect by repairing,
rehabilitating or restoring the affected environment;
(d) Reducing or
eliminating the [impact] effect
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] effect by replacing
or providing comparable substitute wetland or water resources.
(9) “Person” means a
person, a public body, as defined in ORS 174.109, the federal government, when
operating in any capacity other than navigational servitude, or any other legal
entity.
[(11)] (10) “Practicable” means capable of being accomplished
after taking into consideration the cost, existing technology and logistics
with respect to the overall project purpose.
[(12)] (11) “Public use” means a publicly owned project or a
privately owned project that is available for use by the public.
[(13)] (12) “Removal” means:
(a) The taking of material in any waters of this
state; or
(b) The movement
by artificial means of material within the bed of such waters, including
channel relocation.
[(14)] (13) “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.
[(15)] (14) “Waters of this state” means all 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] that
is in the boundaries of this state[. “Waters
of this state” does not include], all other navigable and nonnavigable
bodies of water in this state and those portions of 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.
[(16)] (15) “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.
[(17)] (16) “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.
PERMITS AND GENERAL AUTHORIZATIONS
SECTION 4. ORS 196.825 is amended to read:
196.825. (1) The
Director of the Department of State Lands shall issue a permit [to remove material from the beds or banks of
any waters of this state] applied for under ORS 196.815 if the director
determines that the [removal]
project described in the application [will
not be inconsistent]:
(a) Is consistent with the protection, conservation and best
use of the water resources of this state as specified in ORS [196.805.] 196.600 to 196.905; and
[(2)] (b) [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)] (2) In determining whether [or not] to issue a permit [shall be issued], the director shall
consider all of the following:
(a) The public need for
the proposed fill or removal and the social, economic or other public
benefits likely to result from the proposed fill or removal. 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 or removal is not accomplished.
(c) The availability of
alternatives to the project for which the fill or removal is proposed.
(d) The availability of
alternative sites for the proposed fill or removal.
(e) Whether the proposed
fill or removal conforms to sound policies of conservation and would not
interfere with public health and safety.
(f) Whether the proposed
fill or removal 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]
land use regulations.
(g) Whether the proposed
fill or removal is compatible with the acknowledged comprehensive plan
and land use regulations for the area where the proposed fill or removal
is to take place or can be conditioned on a future local approval to meet this
criterion.
(h) Whether the proposed
fill or removal is for streambank protection.
(i) Whether the
applicant has provided all practicable mitigation to reduce the adverse effects
of the proposed fill or removal in the manner set forth in ORS 196.800 [(10)]. If off-site compensatory wetland
mitigation is proposed, the applicant shall document the impracticability of
on-site compensatory wetland mitigation.
[(4)] (3) The director may issue a permit for a project
that results in a substantial fill in an estuary for a nonwater dependent
use only if the [fill] project
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)] (4) If the director issues a permit, the director may
impose such conditions as the director considers necessary to carry out the
purposes of ORS 196.805[,] and
196.830 and [subsections (1) and (2)]
subsection (1) of this section and to provide mitigation for the
reasonably expected adverse [impacts from]
effects of 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]
public bodies, as defined in ORS 174.109, federal agencies and tribal
governments affected by the permit. Each permit is valid only for the time
specified therein. [Obtaining a lease
from the Department of State Lands may not be one of the conditions to be
considered in granting a permit under ORS 196.815.] The director [of the Department of State Lands] shall
impose, as conditions to any permit, general authorization or wetland
conservation plan, measures to provide mitigation for the reasonably expected
adverse [impacts from] effects of
project development. Compensatory wetland mitigation shall be limited to
replacement of the functional attributes of the lost wetland.
(5) The director may
request comment from interested parties and adjacent property owners on any
application for a permit. The director shall furnish to any person, upon
written request and at the expense of the person who requests the copy, a copy
of any application for a permit or authorization under this section or ORS
196.850.
(6) Any applicant whose
application for a permit or authorization has been deemed incomplete or
has been denied, or who objects to any of the conditions imposed under [subsections (1), (2) and (5) of] this
section by the director [of the
Department of State Lands], may, within 21 days of the denial of the permit
or authorization 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 30 days from the date the Department of State
Lands receives the application. If the director determines that an application
is complete, the director shall distribute the application for comment pursuant
to subsection [(5)] (4) 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 permit
decision [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 or authorization that might
be required for the same operation under ORS 164.775, 164.785, [468.010, 468.030 to 468.045,] 468.020,
468.035, 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 or authorization is issued; and
(b) The standards for
granting [such permits] the permit
or authorization are substantially the same as those established pursuant
to ORS 164.775, 164.785, [468.010,] 468.020,
468.035, [468.040,] 468.045,
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] public
body, as defined in ORS 174.109, federal agency or tribal 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 not more than 30 days after receiving
the request for comment. If [an agency or
other unit of] a public body, federal agency or tribal government
fails to comment on the application within 30 days, the director shall assume [the agency or other unit of] that the
public body, federal agency or tribal government has no objection [and shall approve or deny the application].
(b) The Department of
Environmental Quality shall provide comments to the director within 75 days
after receiving notice under subsection [(5)]
(4) 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 5. ORS 196.825, as amended by section 3, chapter
516, Oregon Laws 2001, section 10, chapter 253, Oregon Laws 2003, and section
18a, chapter 738, Oregon Laws 2003, is amended to read:
196.825. (1) The
Director of the Department of State Lands shall issue a permit [to remove material from the beds or banks of
any waters of this state] applied for under ORS 196.815 if the director
determines that the [removal] project
described in the application:
(a) 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[.]; and
[(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)] (b) 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)] (2) 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 or removal and the social, economic or other public
benefits likely to result from the proposed fill or removal. 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 or removal is not accomplished.
(c) The availability of
alternatives to the project for which the fill or removal is proposed.
(d) The availability of
alternative sites for the proposed fill or removal.
(e) Whether the proposed
fill or removal conforms to sound policies of conservation and would not
interfere with public health and safety.
(f) Whether the proposed
fill or removal 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]
land use regulations.
(g) Whether the proposed
fill or removal is compatible with the acknowledged comprehensive plan
and land use regulations for the area where the proposed fill or removal
is to take place or can be conditioned on a future local approval to meet this
criterion.
(h) Whether the proposed
fill or removal is for streambank protection.
(i) Whether the
applicant has provided all practicable mitigation to reduce the adverse effects
of the proposed fill or removal in the manner set forth in ORS 196.800 [(10)]. If off-site compensatory wetland
mitigation is proposed, the applicant shall document the impracticability of
on-site compensatory wetland mitigation.
[(4)] (3) The director may issue a permit for a project that
results in a substantial fill in an estuary for a nonwater dependent use
only if the [fill] project 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)] (4) If the director issues a permit, the director may
impose such conditions as the director considers necessary to carry out the
purposes of ORS 196.805[,] and
196.830 and [subsections (1) and (2)]
subsection (1) of this section and to provide mitigation for the
reasonably expected adverse [impacts from]
effects of 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]
public bodies, as defined in ORS 174.109, federal agencies and tribal
governments affected by the permit. Each permit is valid only for the time
specified therein. [Obtaining a lease
from the Department of State Lands may not be one of the conditions to be
considered in granting a permit under ORS 196.815.] The director [of the Department of State Lands] shall
impose, as conditions to any permit, general authorization or wetland
conservation plan, measures to provide mitigation for the reasonably expected
adverse [impacts from] effects of
project development. Compensatory wetland mitigation shall be limited to
replacement of the functional attributes of the lost wetland.
(5) The director may
request comment from interested parties and adjacent property owners on any
application for a permit. The director shall furnish to any person, upon written
request and at the expense of the person who requests the copy, a copy of any
application for a permit or authorization under this section or ORS 196.850.
(6) Any applicant whose
application for a permit or authorization 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 21 days of the denial of the permit or
authorization 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 30 days from the date the Department of State
Lands receives the application. If the director determines that an application
is complete, the director shall distribute the application for comment pursuant
to subsection [(5)] (4) 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 permit
decision [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 or authorization that might
be required for the same operation under ORS 164.775, 164.785, [468.010, 468.030 to 468.045,] 468.020,
468.035, 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 or authorization is issued; and
(b) The standards for
granting [such permits] the permit
or authorization are substantially the same as those established pursuant
to ORS 164.775, 164.785, [468.010,] 468.020,
468.035, [468.040,] 468.045,
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] public
body, as defined in ORS 174.109, federal agency or tribal 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 not more than 30 days after receiving
the request for comment. If [an agency or
other unit of] a public body, federal agency or tribal government fails
to comment on the application within 30 days, the director shall assume [the agency or other unit of] that the
public body, federal agency or tribal government has no objection [and shall approve or deny the application].
(b) The Department of
Environmental Quality shall provide comments to the director within 75 days
after receiving notice under subsection [(5)]
(4) 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 6. ORS 196.850 is amended to read:
196.850. (1)
Notwithstanding ORS 196.810, the Department of State Lands may, by rule, grant
general authorization for removal of material from the bed or banks of any
waters of this state or the filling of any waters of [the] this state without a permit from the department if the
department finds that [those] the
activities subject to the general authorization:
(a) Are substantially similar in nature [and];
(b) Would cause only minimal individual and cumulative
environmental impacts[,]; and
(c) Would not
result in long-term harm to water resources of the state.
(2) A general
authorization may be granted on a statewide or other geographic basis.
(3) The
department shall condition any [such]
general authorization upon actions necessary to minimize environmental impacts.
[(2)] (4) The department shall provide notice of any proposed
general authorization to affected federal and state agencies, local governments,
tribal governments and the public. The notice shall include:
(a) A clear description
of the proposal; and
(b) Draft findings and
any proposed conditions pursuant to [subsection
(1) of] this section.
[(3)] (5) Any person proposing to
conduct an action under a general authorization shall:
(a) Notify the department in writing prior to
conducting [such] the action.
(b) Pay the
applicable fee to the department as determined under subsection (9) of this
section.
[(4)] (6) The department shall amend or rescind any general
authorization upon a determination that the activities conducted under the
authorization have resulted in or would result in more than minimal
environmental impacts or long-term harm to the water resources of this state.
[(5)] (7) The department shall
review each general authorization adopted pursuant to this section every five
years. The review shall include public notice and opportunity for public
hearing. After [such] the
review, the department may either modify, reissue or
rescind the general authorization.
[(6)] (8) In addition to the grounds for review set forth in
ORS 183.400 (4), on judicial review of the validity of a rule adopted under
this section, the rule shall be reviewable for substantial evidence in the
rulemaking record. The record shall include copies of all documents before the
agency relevant to [whether the
requirement of] the findings required by subsection (1) of this
section [has been met].
(9) If the rule
adopting a general authorization under this section is:
(a) For actions that
result in moving less than 50 cubic yards of material, the department may not
charge a fee for the general authorization.
(b) For actions that
result in moving 50 or more cubic yards of material, the department may
establish a fee for the general authorization. The fee may not exceed $250 and
shall be based on the cost of processing the general authorization.
(10) The department
shall credit any fee collected under this section to the Common School Fund for
use by the department in administration of ORS 196.600 to 196.905.
SECTION 7. ORS 196.850, as amended by section 4, chapter
516, Oregon Laws 2001, and section 12, chapter 253, Oregon Laws 2003, is
amended to read:
196.850. (1)
Notwithstanding ORS 196.810, the Department of State Lands may, by rule, grant
general authorization for removal of material from the bed or banks of any
waters of this state or the filling of any waters of [the] this state without a permit from the department if the
department finds that [those] the
activities subject to the general authorization:
(a) Are substantially similar in nature [and];
(b) Would cause only minimal individual and
cumulative environmental impacts[,]; and
(c) Would not
result in long-term harm to water resources of the state.
(2) A general
authorization may be granted on a statewide or other geographic basis.
(3) The department shall condition any [such] general authorization upon actions
necessary to minimize environmental impacts.
[(2)] (4) The department shall provide notice of any proposed
general authorization to affected federal and state agencies, local governments,
tribal governments and the public. The notice shall include:
(a) A clear description
of the proposal; and
(b) Draft findings and
any proposed conditions pursuant to [subsection
(1) of] this section.
[(3)] (5) Any person proposing to
conduct an action under a general authorization shall:
(a) Notify the department in writing prior to
conducting the action. The person may not commence the action until the person
receives a letter of authorization from the department.
(b) Pay the applicable
fee to the department as determined under subsection (10) of this section.
[(4)] (6) The Director of the Department of State Lands
shall waive the requirements of subsection [(3)] (5) of this section [shall be waived] if the director [of the Department of State Lands] issues a general authorization
and the authorized activity:
(a)
Involves less than 50 cubic yards of material;
(b) Will be conducted
during periods that minimize adverse effects to fish and wildlife in accordance
with guidance provided by the State Department of Fish and Wildlife;
(c) Will not dam or
divert a waterway in a manner that obstructs fish passage or vessel navigation;
and
(d) Will not violate
water quality standards as established by the Department of Environmental
Quality.
[(5)] (7) The Department of State Lands shall amend or
rescind any general authorization upon a determination that the activities
conducted under the authorization have resulted in or would result in more than
minimal environmental impacts or long-term harm to the water resources of this
state.
[(6)] (8) The department shall
review each general authorization adopted pursuant to this section every five
years. The review shall include public notice and opportunity for public hearing.
After [such] the review, the
department may either modify, reissue or rescind the
general authorization.
[(7)] (9) In addition to the grounds for review set forth in
ORS 183.400 (4), on judicial review of the validity of a rule adopted under
this section, the rule shall be reviewable for substantial evidence in the
rulemaking record. The record shall include copies of all documents before the
agency relevant to [whether the
requirement of] the findings required by subsection (1) of this
section [has been met].
(10) If the rule
adopting a general authorization under this section is:
(a) For actions that
result in moving less than 50 cubic yards of material, the department may not
charge a fee for the general authorization.
(b) For actions that
result in moving 50 or more cubic yards of material, the department may
establish a fee for the general authorization. The fee may not exceed $250 and
shall be based on the cost of processing the general authorization.
(11) The department
shall credit any fee collected under this section to the Common School Fund for
use by the department in administration of ORS 196.600 to 196.905.
SECTION 8. Section 9 of this 2007 Act is added to and
made a part of ORS 196.800 to 196.825.
SECTION 9. (1)(a) Notwithstanding ORS 196.810, the
Department of State Lands may establish by rule a removal or fill general
permit:
(A) For processing
applications on a statewide or geographic basis; or
(B) For an applicant or
group of applicants to cover activities that are substantially similar in
nature, are recurring or ongoing, and have predictable effects and outcomes.
(b) The department must
find that the project is in compliance with the review standards set forth in
ORS 196.600 to 196.905 and would not result in long-term harm to water
resources of this state.
(c) The department shall
condition any such general permit upon actions necessary to minimize
environmental effects.
(2) Any person proposing
to conduct an action under a general permit shall apply to the department in accordance
with procedures set forth by the department by rule.
(3) The department shall
amend or rescind any general permit upon a determination that the activities
conducted under the permit have resulted in or would result in unacceptable
individual or cumulative environmental effects or long-term harm to the water
resources of this state.
(4) Any person proposing
to conduct an action under a general permit shall pay the applicable fee
required under ORS 196.815 for individual permit applications.
CONFORMING AMENDMENTS
SECTION 10. ORS 196.620 is amended to read:
196.620. (1) For each mitigation bank, the Department of State Lands
shall establish a system of resource values and credits.
(2) A credit from a
mitigation bank may be withdrawn for a condition imposed on a permit in
accordance with ORS 196.825 [(5)] (4),
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 may be used only as described in subsection (2) of
this section for permits, authorizations or resolutions of violations approved
within the service area of the mitigation bank, consistent with the mitigation
bank instrument, unless the Director of the Department of State Lands
determines, in exceptional circumstances, that it is environmentally preferable
to exceed this limitation.
(4) Credits from an
estuarine mitigation bank may be used only 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 may not
withdraw any credits from any mitigation bank until the director has:
(a) Taken actions
sufficient to establish hydrological function of the mitigation bank site;
(b) 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 those that the director anticipated 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 ensure that the anticipated functions and values are established.
(9) The director may not
withdraw credits from the mitigation bank for a specific permit, authorization
or resolution of a violation if the director determines that:
(a) The credits for that
specific permit, 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 11. ORS 196.643 is amended to read:
196.643. 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)] (4), 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 12. ORS 196.682 is amended to read:
196.682. (1) Except
where otherwise provided by the order approving the plan, individual permit
applications shall be required for removal or fill, or both, in areas subject
to an approved wetland conservation plan. If individual permit applications are
to be reviewed under the authority of the Director of the Department of State
Lands, then application fees and review procedures shall be in accordance with
ORS 196.815, 196.825 [(5) and (6)]
and 196.835. In lieu of the substantive standards for permit issuance in ORS [196.815 (1) and] 196.825 [(1),] (2) [and (3)], the Department of State Lands shall issue a permit if the
removal or fill, or both, is consistent with the wetland conservation plan or
can be conditioned to be consistent with the plan. The department shall
condition any such permit as necessary to [insure]
ensure that the project:
(a) Is properly designed
or configured to minimize the need for alterations to waters of [the] this state;
(b)
Is the minimum size necessary to reasonably provide for the proposed use;
(c) Complies with
applicable provisions of the acknowledged comprehensive plan and land use
regulations for the area;
(d) Is designed to
minimize impacts from implementing the project; and
(e) Is conditioned to [insure] ensure wetland creation,
restoration or enhancement measures are implemented to fully replace impacted
resources.
(2) In any order
approving a plan which authorizes any fill or removal or both, without the
necessity of subsequently obtaining an individual permit, the director shall
condition such approval as necessary to [insure]
ensure that the project complies with the conditions of subsection (1)
of this section and clearly delineates the wetland area in which fill or
removal, or both, is to occur.
SECTION 13. ORS 196.686 is amended to read:
196.686. (1) For the
purposes of this section, an acknowledged estuary management plan includes the
comprehensive plan and land use regulations adopted by cities and counties to
satisfy the requirement of statewide planning goals related to estuarine
resources including shoreland portions of estuarine sites designated for
development as those plans and regulations existed on January 1, 1989.
(2) Any city or county
may submit an acknowledged estuary management plan for review and approval by
the Department of State Lands pursuant to the provisions of this section. The
plan shall be submitted with a written request for review.
(3) To allow timely and
effective review of acknowledged estuary management plans, the department may
limit acceptance for review to two plans but not more than one plan for a deep
draft development estuary at any one time.
(4) With the consent of
the city or county submitting an estuary management plan for review and
approval, the department may extend any or all of the deadlines set forth in
this section.
(5) Acknowledged estuary
management plans shall be presumed to comply with requirements for approval of
wetland conservation plans specified in ORS 196.681.
(6) Within 10 days of
acceptance of a request for review, the department shall provide notice to
affected state agencies, local governments, federal agencies and the public of
receipt of the acknowledged estuary management plan and of the request for
review and approval of the acknowledged estuary management plan as a wetland
conservation plan.
(7) Within 30 days of
acceptance of a request for review and upon provision of at least two weeks’
notice, the department shall hold a public informational hearing on the
proposed approval of the acknowledged estuary management plan as a wetland
conservation plan.
(8) Within 60 days of
acceptance of the request for review, the department shall conduct a
preliminary review of the acknowledged estuary management plan. The department
shall consult with the affected local government prior to finalizing the
preliminary review.
(9) Except as provided
in subsection (10) of this section, the Director of the Department of State
Lands shall approve the acknowledged estuary management plan by order within 60
days of completion of the preliminary review.
(10) A contested case
hearing shall be held within 30 days of the completion of the preliminary
review or receipt of a request for hearing if:
(a) The director
determines there is probable cause to believe that the estuary management plan
does not meet the standards for approving wetland conservation plans or unreasonably
interferes with the use of the estuary for navigation, fisheries or public
recreation; or
(b) A hearing is
requested and the request:
(A) Is made in writing
within 60 days of the date of mailing of notice of completion of review;
(B) Clearly states the
reasons for requesting the hearing; and
(C) Provides sufficient
information for the director to determine that there is probable cause to
believe that the estuary management plan does not meet the standards for
approving wetland conservation plans or unreasonably interferes with the use of
the estuary for navigation, fisheries or public recreation.
(11) The director shall
approve the acknowledged estuary management plan as a wetland conservation plan
by order unless the director finds by a preponderance of the evidence that the
estuary management plan does not meet the standards for approving wetland
conservation plans or unreasonably interferes with the use of the estuary for
navigation, fisheries or public recreation or that substantial fills proposed
in an estuary management plan for nonwater dependent use are not for a public
use and would not satisfy a public need that outweighs harm to navigation,
fisheries or public recreation.
(12) The director shall
prepare a proposed order for review by the parties within 30 days of any
contested case hearing held pursuant to subsection (10) of this section.
(13) A final order from
the director that recommends, pursuant to subsection (8) of this section,
denial of an estuary management plan as a wetland conservation plan shall
identify deficient elements and provisions of the acknowledged estuary
management plan and what measures may be taken to correct those deficiencies.
(14) Individual permit
applications shall be required for removal or fill, or both, in areas subject
to an approved estuary management plan. Individual permit applications shall be
reviewed in accordance with ORS 196.815, 196.825 [(5) and (6)], 196.830 and 196.835. In lieu of the substantive
standards for permit issuance in ORS [196.815
(1) and] 196.825 [(1),] (2) [and (3)], the department shall issue a
permit if the removal or fill, or both, is determined by the director to be
consistent with the estuary management plan or can be conditioned to be
consistent with the plan. The department shall condition any such permit as
necessary to [insure] ensure
that the project:
(a) Is designed or
configured to minimize alterations to waters of [the] this state;
(b)
Is the minimum size necessary to reasonably provide for the proposed use;
(c)
Is consistent with the resource capabilities of the area and the purposes of
the management unit, unless this has been previously determined in the approved
estuary management plan;
(d) Is designed to
minimize impacts from implementing the project; and
(e) Has estuarine
resource replacement measures for creation, restoration or enhancement that
replaces impacted resources.
(15) Judicial review of
an order granting or denying approval of an estuary management plan as provided
in this section shall be as provided in ORS 183.470.
(16) Following approval
by the director of an estuary management plan, the requirements of ORS 196.684
shall apply to the approved estuary management plan.
SECTION 14. 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] a
person 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] wetland conservation
plan.
(b) Notwithstanding the
permit requirements of this section and notwithstanding the provisions of ORS
196.800 [(5) and (13)] (3) and
(12), 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] A person is not
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] A permit is not
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] A public
body, as defined in ORS 174.109, 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] public
body, as defined in ORS 174.109, 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 to a person 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.
(d) Does not relieve
the person from payment of a fee calculated in the manner provided in ORS
196.815.
SECTION 15. 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] wetland
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, 498.316, 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] public body, as
defined in ORS 174.109, 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] public
body, as defined in ORS 174.109, 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 to a person 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.
(d) Does not relieve
the person from payment of a fee calculated in the manner provided in ORS
196.815.
(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 16. ORS 196.860 is amended to read:
196.860. (1) If the
Director of the Department of State Lands determines that material is being
removed from or filling is occurring in any of the waters of this state without
a permit issued under ORS 196.825, 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] wetland
conservation plan, the director may:
(a) Investigate, hold
hearings, make orders and take action, as provided in ORS 196.600 to 196.905,
as soon as possible.
(b) For the purpose of
investigating conditions relating to such removal or filling, through the
employees or the duly authorized representatives of the Department of State
Lands, enter at reasonable times upon any private or public property.
(c) Conduct public
hearings in accordance with ORS chapter 183.
(d) Publish findings and
recommendations as they are developed relative to public policies and
procedures necessary for the correction of conditions or violations of ORS
196.600 to 196.905.
(e) Give notice of any
proposed order relating to a violation by personal service or by mailing the
notice by registered or certified mail to the person [or governmental body] affected. Any person aggrieved by a proposed
order of the director may request a hearing within 20 days of the date of
personal service or mailing of the notice. Hearings shall be conducted under
the provisions of ORS chapter 183 applicable to contested cases, and judicial
review of final orders shall be conducted in the Court of Appeals according to
ORS 183.482. If no hearing is requested or if the party fails to appear, a
final order shall be issued upon a prima facie case on the record of the
agency.
(f) Take appropriate
action for the enforcement of any rules or final orders. Any violation of ORS
196.600 to 196.905 or of any rule or final order of the director under ORS
196.600 to 196.905 may be enjoined in civil abatement proceedings brought in
the name of the State of Oregon; and in any such proceedings the director may
seek and the court may award a sum of money sufficient to compensate the public
for any destruction or infringement of any public right of navigation, fishery
or recreation resulting from such violation. Proceedings thus brought by the
director shall set forth if applicable the dates of notice and hearing and the
specific rule or order of the director, together with the facts of
noncompliance, the facts giving rise to the public nuisance, and a statement of
the damages to any public right of navigation, fishery or recreation, if any,
resulting from such violation.
(2) In addition to the
administrative action the director may take under subsection (1) of this
section, the director may enter an order requiring any person to cease and
desist from any violation if the director determines that such violation
presents an imminent and substantial risk of injury, loss or damage to water
resources.
(a) An order under this
subsection:
(A) May be entered
without prior notice or hearing.
(B) Shall be served upon
the person by personal service or by registered or certified mail.
(C) Shall state that a
hearing will be held on the order if a written request for hearing is filed by
the person subject to the order within 10 days after receipt of the order.
(D) Shall not be stayed
during the pendency of a hearing conducted under paragraph (b) of this
subsection.
(b) If a person subject
to an order under this subsection files a timely demand for hearing, the
director shall hold a contested case hearing according to the applicable
provisions of ORS chapter 183. If the person fails to request a hearing, the
order shall be entered as a final order upon prima facie case made on the
record of the agency.
(c) Neither the director
nor any duly authorized representative of the department shall be liable for
any damages a person may sustain as a result of a cease and desist
order issued under this subsection.
(d) The state and local
police shall cooperate in the enforcement of any order issued under this
subsection and shall require no further authority or warrant in executing or
enforcing such order. If any person fails to comply with an order issued under
this subsection, the circuit court of the county in which the violation
occurred or is threatened shall compel compliance with the director’s order in
the same manner as with an order of that court.
(3) As used in this
section, “violation” means removing material from or placing fill in, any of
the waters of this state without a permit or in a manner contrary to the
conditions set out in a permit issued under ORS 196.825.
SECTION 17. ORS 196.865 is amended to read:
196.865. If the Director
of the Department of State Lands finds that a person [or governmental body] holding a permit issued under ORS 196.825 is
removing material from the bed or banks or filling any of the waters of this
state contrary to the conditions set out in the permit, the director may
revoke, suspend or refuse to renew such permit. The director may revoke a
permit only after giving notice and opportunity for a hearing as provided in
ORS 183.415 to 183.430, 183.440 to 183.460 and 183.470.
SECTION 18. ORS 196.875 is amended to read:
196.875. (1) If any
person [or governmental body], through
negligence, violates ORS 196.810, the Director of the Department of State
Lands, in a proceeding brought pursuant to ORS 196.870, may seek and the court
may award double a sum of money sufficient to compensate the public for any
destruction or infringement of any public right of navigation, fishery or
recreation resulting from such violation.
(2) If any person [or governmental body] intentionally
violates ORS 196.810, the director, in a proceeding brought pursuant to ORS
196.870, may seek and the court may award treble a sum of money sufficient to
compensate the public for any destruction or infringement of any public right
of navigation, fishery or recreation resulting from such violation.
(3) An award made
pursuant to this section shall be in addition to and not in lieu of any
criminal penalties imposed for a violation of ORS 196.810.
(4) In any action
brought under ORS 196.870, the court shall award to the prevailing party the
costs of suit and reasonable attorney fees at trial and on appeal. Subject to
the provisions of ORS 20.140, any costs and attorney fees so awarded to the
director shall be deposited in the Common School Fund to offset the director’s
expenses of bringing such action.
MISCELLANEOUS PROVISIONS
SECTION 19. The amendments to ORS 196.620, 196.643,
196.682, 196.686, 196.800, 196.810, 196.815, 196.825, 196.850 and 196.865 by
sections 1 to 7, 10 to 15 and 17 of this 2007 Act apply only to permits applied
for or permits renewed on or after the effective date of this 2007 Act.
SECTION 20. The unit captions used in this 2007 Act are
provided only for the convenience of the reader and do not become part of the
statutory law of this state or express any legislative intent in the enactment
of this 2007 Act.
SECTION 21. This 2007 Act being necessary for the
immediate preservation of the public peace, health and safety, an emergency is
declared to exist, and this 2007 Act takes effect on July 1, 2007.
Approved by the Governor July 31, 2007
Filed in the office of Secretary of State July 31, 2007
Effective date July 31, 2007
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