75th OREGON LEGISLATIVE ASSEMBLY--2009 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 413
A-Engrossed
House Bill 2155
Ordered by the House April 30
Including House Amendments dated April 30
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.
{ - Modifies definition of 'intermittent stream.' Repeals
estuarine resource replacement statute. - } Allows Department of
State Lands to assess one-time fee that covers all fees due for
removal or fill permit valid for more than one year. Modifies
factors Director of Department of State Lands considers in
determining whether to issue permit. Modifies exemptions for
lands zoned for exclusive farm use. Allows department to
establish by rule exemption from removal or fill permitting
requirements for voluntary habitat restoration projects that have
only minimal adverse impact.
A BILL FOR AN ACT
Relating to removal-fill permitting program; creating new
provisions; and amending ORS 196.815, 196.825 and 196.905.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 196.815 is amended to read:
196.815. (1) A person who is required to have a permit to
remove material from the bed or banks or fill any waters of this
state shall file a written application with the Director of the
Department of State Lands for each individual project before
performing any removal or fill.
(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, $85.
(B) For a removal by a public body, $250.
(C) For a removal by a commercial operator, $250.
(D) For a fill by a private operator, or a person contracting
to perform services for a private operator, $250.
(E) For a fill by a public body, $620.
(F) For a fill by a commercial operator, $620.
(G) For erosion-flood repair, including riprap, 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 less than 5,000 cubic yards, $125.
(C) 5,000 to less than or equal to 50,000 cubic yards, $250.
(D) Over 50,000 cubic yards, $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 less than 3,000 cubic yards, $125.
(C) 3,000 to less than or equal to 10,000 cubic yards, $250.
(D) Over 10,000 cubic yards, $375.
(d) For the purposes of this subsection:
(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.
(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 (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.
(6) { - 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 (2) of this section, except
that the applicant shall pay only the base fee. { + For
multiyear permits valid over a period of more than one year, the
department may assess a one-time fee that covers all fees due
under subsection (2) of this section for the period of the
permit. + } 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
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.
(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.
(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.
SECTION 2. ORS 196.825 is amended to read:
196.825. (1) The Director of the Department of State Lands
shall issue a permit applied for under ORS 196.815 if the
director determines that the 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
(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.
(2) In determining whether to issue a permit, 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 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 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. { - If off-site
compensatory wetland mitigation is proposed, the applicant shall
document the impracticability of on-site compensatory wetland
mitigation. - } { + In determining whether the applicant has
provided all practicable mitigation, the director shall consider
the findings regarding wetlands set forth in ORS 196.668 and
whether the proposed mitigation advances the policy objectives
for the protection of wetlands set forth in ORS 196.672. + }
(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 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.
(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 subsection (1) of
this section and to provide mitigation for the reasonably
expected adverse effects of project development. In formulating
such conditions the director may request comment from 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. The director shall impose, as
conditions to any permit, general authorization or wetland
conservation plan, measures to provide mitigation for the
reasonably expected adverse 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 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 (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 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, 468.020, 468.035, 468.045,
468.055, 468.060, 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 the permit or authorization are
substantially the same as those established pursuant to ORS
164.775, 164.785, 468.020, 468.035, 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 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 must submit its comments to the
director not more than 30 days after receiving the request for
comment. If a public body, federal agency or tribal government
fails to comment on the application within 30 days, the director
shall assume that the public body, federal agency or tribal
government has no objection.
(b) The Department of Environmental Quality shall provide
comments to the director within 75 days after receiving notice
under subsection (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 this section.
SECTION 3. ORS 196.905 is amended to read:
196.905. (1) Nothing in ORS 196.600 to 196.905 applies to
filling the beds of the waters of this state for the purpose of
constructing, operating and maintaining dams or other diversions
for which permits or certificates have been or shall be issued
under ORS chapter 537 or 539 and for which preliminary permits or
licenses have been or shall be issued under ORS 543.010 to
543.610.
(2) Nothing in ORS 196.600 to 196.905 applies to removal of
materials from the beds or banks or filling of the waters of a
nonnavigable natural waterway, or any portion thereof, in this
state, if:
(a) Such waterway or portion is situated within forestland; and
(b) Such removal or filling is directly connected with a forest
management practice conducted in accordance with ORS 527.610 to
527.770, 527.990 and 527.992.
(3) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, on converted wetlands for normal farming and
ranching activities such as plowing, grazing, seeding,
{ + planting, + } cultivating, conventional crop rotation
{ - , - } { + or + } harvesting { - for the production of
food and fiber, upland soil and water conservation practices or
reestablishment of crops under federal conservation reserve
program provisions - } .
(4) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, { + on lands zoned for exclusive farm use as
described in ORS 215.203 + } for the following activities
{ - on exclusive farm use zoned lands - } :
(a) Drainage or maintenance of farm or stock ponds; { + or + }
(b) Maintenance of farm roads in such a manner as to not
significantly adversely affect wetlands { - ; - }
{ - (c) Subsurface drainage, by deep ripping, tiling or
moling, on converted wetlands; and - }
{ - (d) Any activity described as a farm use in ORS 215.203
that is conducted on prior converted cropland as described in
subsection (8) of this section, so long as agricultural
management of the land has not been abandoned for five or more
years - } { + or any other waters of this state + }.
{ + (5) Nothing in ORS 196.800 to 196.900 applies to removal
or filling, or both, for subsurface drainage by deep ripping,
tiling or moling on converted wetlands that are zoned for
exclusive farm use pursuant to ORS 215.203.
(6) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, for any activity defined as a farm use in ORS
215.203, on lands zoned for exclusive farm use pursuant to ORS
215.203, if the lands are converted wetlands that are also
certified as prior converted cropland by the Natural Resources
Conservation Service of the United States Department of
Agriculture, or its successor agency, so long as commercial
agricultural production on the land has not been abandoned for
five or more years.
(7) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, for the reestablishment of crops under federal
conservation reserve program provisions set forth in 16
U.S.C. 3831 as in effect on the effective date of this act. + }
{ - (5) - } { + (8) + } The { - exemption - }
{ + exemptions + } in subsections (3) { - and (4) - } { + to
(7) + } of this section { - shall - } { + do + } not apply to
any fill or removal { - which - } { + that + } involves
changing an area of wetlands to a nonfarm use.
{ - (6) - } { + (9) + } Nothing in ORS 196.800 to 196.900
applies to removal or filling, or both, for the maintenance or
reconstruction of structures such as dikes, dams, levees, groins,
riprap, tidegates, drainage ditches, irrigation ditches and tile
drain systems, provided that:
(a) The structure was serviceable within the past five years;
and
(b) Such maintenance or reconstruction would not significantly
adversely affect wetlands or other waters of this state to a
greater extent than the wetlands or waters of this state were
affected as a result of the original construction of those
structures.
{ - (7) - } { + (10) + } Nothing in ORS 196.800 to 196.900
applies to removal or filling, or both, for maintenance,
including emergency reconstruction of recently damaged parts, of
currently serviceable roads or transportation structures such as
groins and riprap protecting roads, causeways and bridge
abutments or approaches.
{ + (11) The Department of State Lands may adopt a rule that
exempts from the requirement to obtain a permit under ORS 196.800
to 196.900 voluntary habitat restoration projects that have only
minimal adverse impact on waters of this state. + }
{ - (8) - } { + (12) + } { - For the purposes of this
section, 'converted wetland': - }
{ - (a) Means wetlands that on or before June 30, 1989, have
been diked, drained, dredged, filled, leveled or otherwise
manipulated to impair or reduce the flow, circulation or reach of
water for the purpose of enabling production of an agricultural
commodity and are managed for that purpose; and - }
{ - (b) Includes land that the Natural Resources Conservation
Service of the United States Department of Agriculture, or its
successor agency, certifies as prior converted cropland or farmed
wetlands, so long as agricultural management of the land has not
been abandoned for five or more years. - } { + As used in this
section:
(a) 'Converted wetlands' means agriculturally managed wetlands
that, on or before June 30, 1989, were brought into commercial
agricultural production by diking, draining, leveling, filling or
any similar hydrologic manipulation and by removal or
manipulation of natural vegetation, and that are managed for
commercial agricultural purposes.
(b) 'Converted wetlands' does not include any stream, slough,
ditched creek, spring, lake or any other waters of this state
that are located within or adjacent to a converted wetland
area. + }
SECTION 4. ORS 196.905, as amended by section 6, chapter 516,
Oregon Laws 2001, and section 13, chapter 253, Oregon Laws 2003,
is amended to read:
196.905. (1) Notwithstanding the exemptions in subsections (3)
to (8) of this section, a permit under ORS 196.600 to 196.905 is
required for any fill or removal of material in or from the
waters of this state when:
(a) The fill or removal is a part of an activity whose purpose
is to bring an area of state waters into a use to which it was
not previously subject; and
(b)(A) The flow or circulation of the waters of this state may
be impaired; or
(B) The reach of the waters may be reduced.
(2) Nothing in ORS 196.600 to 196.905 applies to removal of
materials from the beds or banks or filling of the waters of a
nonnavigable natural waterway, or any portion thereof, in this
state, if:
(a) Such waterway or portion is situated within forestland; and
(b) Such removal or filling is directly connected with a forest
management practice conducted in accordance with ORS 527.610 to
527.770, 527.990 and 527.992.
(3) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, on converted wetlands for normal farming and
ranching activities such as plowing, grazing, seeding,
{ + planting, + } cultivating, conventional crop rotation
{ - , - } { + or + } harvesting { - for the production of
food and fiber, upland soil and water conservation practices or
reestablishment of crops under federal conservation reserve
program provisions - } .
(4) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, { + on lands zoned for exclusive farm use as
described in ORS 215.203 + } for the following activities
{ - on exclusive farm use zoned lands - } :
(a) Drainage or maintenance of farm or stock ponds; { + or + }
{ - (b) Subsurface drainage, by deep ripping, tiling or
moling, on converted wetlands; - }
{ - (c) - } { + (b) + } Maintenance of farm roads, provided
that:
(A) The farm roads are constructed and maintained in accordance
with construction practices designed to minimize any adverse
effects to the aquatic environment;
(B) Borrow material for farm road maintenance does not come
from waters of this state unless authorized by the Department of
State Lands; and
(C) Maintenance activities are confined to the scope of
construction for the original project { + . + } { - ; and - }
{ - (d) Any activity described as a farm use in ORS 215.203
that is conducted on prior converted cropland as described in
subsection (10)(a) of this section, so long as agricultural
management of the land has not been abandoned for five or more
years. - }
{ + (5) Nothing in ORS 196.800 to 196.900 applies to removal
or filling, or both, for any activity defined as a farm use in
ORS 215.203, on lands zoned for exclusive farm use pursuant to
ORS 215.203, if the lands are converted wetlands that are also
certified as prior converted cropland by the Natural Resources
Conservation Service of the United States Department of
Agriculture, or its successor agency, so long as commercial
agricultural production on the land has not been abandoned for
five or more years.
(6) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, for the reestablishment of crops under federal
conservation reserve program provisions set forth in 16
U.S.C. 3831 as in effect on the effective date of this 2009
Act. + }
{ - (5) - } { + (7) + } The { - exemption - }
{ + exemptions + } in subsections (3) { - and (4) - } { + to
(6) + } of this section { - may - } { + do + } not apply to
any fill or removal { - which - } { + that + } involves
changing an area of wetlands or converted wetlands to a nonfarm
use.
{ - (6) - } { + (8) + } Nothing in ORS 196.800 to 196.900
applies to removal or filling, or both, for the maintenance or
reconstruction of structures such as dikes, dams, levees, groins,
riprap, tidegates, drainage ditches, irrigation ditches and tile
drain systems, provided that:
(a) The structure was serviceable within the past five years;
and
(b) Such maintenance or reconstruction would not significantly
adversely affect wetlands or other waters of this state to a
greater extent than the wetlands or waters of this state were
affected as a result of the original construction of those
structures.
{ - (7) - } { + (9) + } Nothing in ORS 196.800 to 196.900
applies to removal or filling, or both, for temporary dams
constructed for crop or pasture irrigation purposes that are less
than 50 cubic yards, provided the following conditions are
satisfied:
(a) The removal or filling is conducted during periods that
minimize adverse effects to fish and wildlife in accordance with
guidance provided by the State Department of Fish and Wildlife;
(b) The removal or filling does not jeopardize a threatened or
endangered species or adversely modify or destroy the habitat of
a threatened or endangered species listed under federal or state
law; and
(c) Temporary fills are removed in their entirety and the area
is restored to its approximate original elevation.
{ - (8) - } { + (10) + } Nothing in ORS 196.800 to 196.900
applies to removal or filling, or both, for maintenance,
including emergency reconstruction of recently damaged parts, of
currently serviceable roads or transportation structures such as
groins and riprap protecting roads, causeways and bridge
abutments or approaches.
{ - (9) - } { + (11) + } Nothing in ORS 196.800 to 196.900
applies to removal or filling, or both, for the maintenance of
access roads constructed to move mining equipment, subject to the
following conditions:
(a) The access roads are constructed and maintained in
accordance with construction practices that minimize adverse
effects to the aquatic environment;
(b) Borrow material for access road maintenance does not come
from waters of this state unless authorized by the Department of
State Lands; and
(c) Maintenance activities are confined to the scope of
construction for the original project.
{ + (12) The department may adopt a rule that exempts from
the requirement to obtain a permit under ORS 196.800 to 196.900
voluntary habitat restoration projects that have only minimal
adverse impact on waters of this state. + }
{ - (10) - } { + (13) + } { - For the purposes of this
section: - }
{ - (a) 'Converted wetland' means: - }
{ - (A) Wetlands that on or before June 30, 1989, have been
diked, drained, dredged, filled, leveled or otherwise manipulated
to impair or reduce the flow, circulation or reach of water for
the purpose of producing an agricultural product and are managed
for that purpose; or - }
{ - (B) Those areas that the Natural Resources Conservation
Service of the United States Department of Agriculture, or its
successor agency, certifies as prior converted cropland or farmed
wetlands, so long as agricultural management of the land has not
been abandoned for five or more years. - } { + As used in this
section:
(a)(A) 'Converted wetlands' means agriculturally managed
wetlands that, on or before June 30, 1989, were brought into
commercial agricultural production by diking, draining, leveling,
filling or any similar hydrologic manipulation and by removal or
manipulation of natural vegetation, and that are managed for
commercial agricultural purposes.
(B) 'Converted wetlands' does not include any stream, slough,
ditched creek, spring, lake or any other waters of this state
that are located within or adjacent to a converted wetland
area. + }
(b) 'Harvesting' means physically removing crops or other
agricultural products.
(c) 'Plowing' includes all forms of primary tillage, including
moldboard, chisel or wide-blade plowing, discing, harrowing or
similar means of breaking up, cutting, turning over or stirring
soil to prepare it for planting crops or other agricultural
products. 'Plowing' does not include:
(A) The redistribution of soil, rock, sand or other surface
materials in a manner that changes areas of waters of this state
into dry land; or
(B) Rock crushing activities that result in the loss of natural
drainage characteristics, the reduction of water storage and
recharge capability, or the overburdening of natural water
filtration capacity.
(d) 'Seeding' means the sowing of seed or placement of
seedlings to produce crops or other agricultural products.
SECTION 5. { + The amendments to ORS 196.815, 196.825 and
196.905 by sections 1 to 4 of this 2009 Act apply only to permits
first applied for or permits renewed on or after the effective
date of this 2009 Act. + }
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