74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 657
A-Engrossed
House Bill 2105
Ordered by the House March 7
Including House Amendments dated March 7
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Governor Theodore R.
Kulongoski for Department of State Lands)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Increases base fee and volume fee for permits to remove or fill
material. Provides for annual { - increase of permit fee - }
{ + revision of permit fee based on Consumer Price Index + }.
Requires person removing material from beds or banks of waters of
this state or filling waters of this state under emergency
authorization to submit fee to Department of State Lands. Allows
department to assess fee for persons conducting certain actions
under general authorization.
{ + Authorizes department to establish general permit for
removal or fill activities that are substantially similar in
nature, are recurring and ongoing, and have predictable outcomes
and effects. + }
Declares emergency, effective July 1, 2007.
A BILL FOR AN ACT
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 Oregon:
{ +
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 Oregon and every political subdivision therein. - }
{ + (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 Oregon and every political subdivision therein. - }
{ - (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. + }
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