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
House Bill 2155
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 as
introduced.
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; amending ORS 196.681, 196.684, 196.686, 196.692,
196.800, 196.815, 196.825 and 196.905; and repealing ORS
196.830.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 196.681 is amended to read:
196.681. (1) In accordance with rules adopted pursuant to this
chapter, the Department of State Lands shall:
(a) Review any proposed wetland conservation plan or proposed
amendment to an approved wetland conservation plan against the
standards in this section;
(b) Prepare a proposed order that approves, approves with
conditions or denies the proposed wetland conservation plan or
proposed amendment to an approved wetland conservation plan;
(c) Provide notice and the opportunity for public hearing and
comment on the proposed order;
(d) Consult with affected local, state and federal agencies;
and
(e) Consider the applicable findings made in the order of
acknowledgment issued by the Land Conservation and Development
Commission.
(2) The Director of the Department of State Lands may approve
by order a wetland conservation plan that includes the necessary
elements of ORS 196.678 (2) and meets the standards of
subsections (3) and (4) of this section.
(3) A wetland conservation plan shall comply with the following
standards:
(a) Uses and activities permitted in the plan including fill or
removal, or both, conform to sound policies of conservation and
will not interfere with public health and safety;
(b) Uses and activities permitted in the plan including fill or
removal, or both, are not inconsistent with the protection,
conservation and best use of the water resources of this state
and the use of state waters for navigation, fishing and public
recreation; and
(c) Designation of wetlands for protection, conservation and
development is consistent with the resource functions and values
of the area and the capability of the wetland area to withstand
alterations and maintain important functions and values.
(4) Wetland areas may be designated for development including
fill or removal, or both, only if they meet the following
standards:
(a) There is a public need for the proposed uses set forth in
the acknowledged comprehensive plan for the area;
(b) Any planned wetland losses shall be fully offset by
creation, restoration or enhancement of wetland functions and
values { - or in an estuarine area, estuarine resource
replacement is consistent with ORS 196.830 - } ; and
(c) Practicable, less damaging alternatives, including
alternative locations for the proposed use are not available.
(5) Approval by the director of a wetland conservation plan
shall be conditioned upon adoption by the affected local
governments of comprehensive plan policies and land use
regulations consistent with and sufficient to implement the
wetland conservation plan. Appropriate implementing measures may
include the following planning and zoning requirements
regulating:
(a) Adjacent lands or buffer areas necessary to maintain,
protect or restore wetland functions and values, including
riparian vegetation, and the uses to be allowed in those areas;
(b) Sites for mitigation of impacts from development
activities;
(c) Upland areas adjacent to wetlands; and
(d) Activities or location of buildings, structures and
improvements which may affect wetland values or functions, such
as storm water runoff.
(6) The director shall issue an order approving, approving with
conditions or denying a wetland conservation plan, including a
clear statement of findings which sets forth the basis for the
approval, conditioning or denial. The order shall include:
(a) A clear statement of findings that the elements specified
in ORS 196.678 (2) have been developed;
(b) The findings in support of the determination of compliance
or noncompliance with the standards in subsections (3) and (4) of
this section; and
(c) The conditions under which fill or removal or both may
occur.
(7) The director may, as a part of an order approving a plan,
authorize site-specific fill or removal without an individual
permit as required by ORS 196.810 provided that:
(a) The director adopts findings demonstrating that fill or
removal for any proposed project complies with ORS 196.682 (1)(a)
to (e); or
(b) The director adopts findings that specific areas of fill or
removal within areas designated as development in the plan meet
the following standards:
(A) The fill or removal approved by the order will result in
minimal impacts to the wetland system in the planning area;
(B) The public need for the proposed area of fill or removal
outweighs the environmental damage likely to result from full
development;
(C) The director conditions any such order as necessary to
ensure that the fill or removal, or both, is designed to minimize
impacts from implementing the project; and
(D) Full replacement of wetland losses is provided through
creation, restoration or enhancement of wetlands with comparable
functions and values.
(8) Upon a finding by the director that a fill or removal, or
both, authorized under subsection (7)(b) of this section has
caused or is likely to cause more than minimal adverse impact to
the wetland system considering required mitigation conditions,
the director shall revise the order to require individual permit
review according to ORS 196.682 or provide additional conditions
to ensure that adverse impacts are minimal. Such revision shall
not be subject to ORS 196.684.
SECTION 2. ORS 196.684 is amended to read:
196.684. (1) Local governments shall provide notice to the
Department of State Lands of any proposed amendments to the land
use plan and ordinances affecting lands subject to a wetland
conservation plan approved under this section.
(2) Amendments to plan policies, maps and implementing
ordinances by the local government within an approved wetland
conservation plan shall be reviewed by the department against the
requirements of this section. These provisions do not exempt
local governments from the provisions of ORS 197.610 to 197.625.
(3) The Director of the Department of State Lands shall provide
notice and the opportunity for public comment and hearing as
defined by rule on the matter of including the amendment in the
wetland conservation plan.
(4) If the director finds that the proposed local government
amendment to acknowledged comprehensive plan and land use
regulations meets the requirements of ORS 196.681, the director
shall approve the plan by order, and notify the local government
within 10 days of the completion of the public review provided in
subsection (3) of this section.
(5) If the amendments to acknowledged comprehensive plan and
land use regulations adopted by the local government are
determined not to comply with the requirements of ORS 196.668 to
196.692, 196.800, 196.810, 196.825, { - 196.830, - } 196.850
to 196.860, 196.885, 196.905, 197.015, 197.279, 215.213, 215.283,
215.284, 215.418 and 227.350, the director shall revoke the
approval order or amend the order to insure compliance with the
requirements of ORS 196.668 to 196.692, 196.800, 196.810,
196.825, { - 196.830, - } 196.850 to 196.860, 196.885, 196.905,
197.015, 197.279, 215.213, 215.283, 215.284, 215.418 and 227.350.
(6) The department shall review each approved wetland
conservation plan every five years. After such review the
director shall either modify, reissue or rescind the order
approving the plan.
(7) In conducting the five-year review of an approved wetland
conservation plan, the director shall provide notice and the
opportunity for public comment and hearing on whether:
(a) There has been a substantial change in circumstances that
would affect the wetland resources subject to the plan and would
adversely affect the compliance of the plan with the standards in
ORS 196.681;
(b) Changes have been made in applicable state law, statewide
land use planning goals, federal law or agency rules that require
the plan to be changed; and
(c) In the director's evaluation, the plan as implemented over
the preceding five years meets the goals established in the plan.
(8) Wetland conservation plans approved by the Director of the
Department of State Lands pursuant to ORS 196.668 to 196.692
shall be deemed to comply with the requirements of any statewide
planning goals relating to wetlands, other than estuarine
wetlands, for those areas, uses and activities which are
regulated by the plan.
(9) An order by the director regarding approval, amendment or
review of a wetland conservation plan shall be reviewable by the
Land Use Board of Appeals as a land use decision of a state
agency. For the purpose of such review, the director's order
shall not become final until the local government adopts its
wetland conservation plan or plan amendment. The Land Use Board
of Appeals shall consolidate for review appeals of the director's
order and the local government adoption. The Land Use Board of
Appeals shall review such order for compliance with the
requirements of ORS 196.668 to 196.692, 196.800, 196.810,
196.825, { - 196.830, - } 196.850 to 196.860, 196.885,
196.905, 197.015, 197.279, 215.213, 215.283, 215.284, 215.418 and
227.350.
(10) Nothing in this section shall be construed to require a
contested case proceeding regarding approval, amendment or review
of a wetland conservation plan.
(11) Nothing in this section shall be construed to affect the
evaluation of a permit application in areas that do not have a
wetland conservation plan.
(12) Upon a finding by the director, after a public hearing,
that an affected local government is not enforcing the
comprehensive plan provisions or land use regulations set forth
in the conditions of the order, as specified in ORS 196.681 (5),
and that such lack of enforcement has resulted or would result in
adverse impacts to wetlands, the director shall modify, suspend
or revoke approval of the wetland conservation plan.
SECTION 3. 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 { - , 196.830 - } and
196.835. In lieu of the substantive standards for permit issuance
in ORS 196.825 (2), 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 ensure that the project:
(a) Is designed or configured to minimize alterations to waters
of 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 4. ORS 196.692 is amended to read:
196.692. (1) The Department of State Lands shall adopt rules to
carry out the provisions of ORS 196.668 to 196.692, 196.800,
196.810, 196.818, 196.825, { - 196.830, - } 196.850 to
196.860, 196.885, 196.905, 197.015, 197.279, 215.213, 215.283,
215.284, 215.418 and 227.350.
(2) Rules adopted pursuant to subsection (1) of this section
shall include rules governing the application for and issuance of
permits to remove material from the beds or banks of any waters
of this state or to fill any waters of this state including, but
not limited to, clear and objective standards and criteria for
determining whether to grant or deny a permit.
SECTION 5. 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) 'Estuary' means:
(a) For waters other than the Columbia River, the body of water
from the ocean to the head of tidewater that is partially
enclosed by land and within which salt water is usually diluted
by fresh water from the land, including all associated estuarine
waters, tidelands, tidal marshes and submerged lands; and
(b) For the Columbia River, 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.
(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.
(4) 'General authorization' means an authorization granted
under ORS 196.850 for a category of activities involving removal
or fill, or both, 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.
(6) 'Intermittent stream' means any stream { - which - }
{ + that + } flows during a portion of { - every - }
{ + any + } year { - and which provides spawning, rearing or
food-producing areas for food and game fish - } { + that has
normal or more than normal annual precipitation + }.
(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.
(8) 'Mitigation' means the reduction of adverse effects of a
proposed project by considering, in the following order:
(a) Avoiding the effect altogether by not taking a certain
action or parts of an action;
(b) Minimizing the effect by limiting the degree or magnitude
of the action and its implementation;
(c) Rectifying the effect by repairing, rehabilitating or
restoring the affected environment;
(d) Reducing or eliminating the 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 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.
(10) 'Practicable' means capable of being accomplished after
taking into consideration the cost, existing technology and
logistics with respect to the overall project purpose.
(11) 'Public use' means a publicly owned project or a privately
owned project that is available for use by the public.
(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.
(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.
(14) 'Waters of this state' means all natural waterways, tidal
and nontidal bays, intermittent streams, constantly flowing
streams, lakes, wetlands, that portion of the Pacific Ocean that
is in the boundaries of this state, all other navigable and
nonnavigable bodies of water in this state and those portions of
the ocean shore, as defined in ORS 390.605, 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.
(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.
(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 6. ORS 196.800, as amended by section 1, chapter 516,
Oregon Laws 2001, section 8, chapter 253, Oregon Laws 2003,
section 15, chapter 738, Oregon Laws 2003, and section 3, chapter
849, Oregon Laws 2007, 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) 'Estuary' means:
(a) For waters other than the Columbia River, the body of water
from the ocean to the head of tidewater that is partially
enclosed by land and within which salt water is usually diluted
by fresh water from the land, including all associated estuarine
waters, tidelands, tidal marshes and submerged lands; and
(b) For the Columbia River, 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.
(3) 'Fill' means the deposit by artificial means of material at
one location in any waters of this state.
(4) 'General authorization' means an authorization granted
under ORS 196.850 for a category of activities involving removal
or fill, or both, 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.
(6) 'Intermittent stream' means any stream { - which - }
{ + that + } flows during a portion of { - every - }
{ + any + } year { - and which provides spawning, rearing or
food-producing areas for food and game fish - } { + that has
normal or more than normal annual precipitation + }.
(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.
(8) 'Mitigation' means the reduction of adverse effects of a
proposed project by considering, in the following order:
(a) Avoiding the effect altogether by not taking a certain
action or parts of an action;
(b) Minimizing the effect by limiting the degree or magnitude
of the action and its implementation;
(c) Rectifying the effect by repairing, rehabilitating or
restoring the affected environment;
(d) Reducing or eliminating the 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 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.
(10) 'Practicable' means capable of being accomplished after
taking into consideration the cost, existing technology and
logistics with respect to the overall project purpose.
(11) 'Public use' means a publicly owned project or a privately
owned project that is available for use by the public.
(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.
(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.
(14) 'Waters of this state' means all natural waterways, tidal
and nontidal bays, intermittent streams, constantly flowing
streams, lakes, wetlands, that portion of the Pacific Ocean that
is in the boundaries of this state, all other navigable and
nonnavigable bodies of water in this state and those portions of
the ocean shore, as defined in ORS 390.605, 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.
(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.
(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 7. 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 8. 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 9. 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
{ + on-going + } 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 or any similar
hydrologic manipulation that resulted in the 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 10. 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
{ + on-going + } 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 or any
similar hydrologic manipulation that resulted in the 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 11. { + ORS 196.830 is repealed. + }
SECTION 12. { + (1) The amendments to ORS 196.686, 196.800,
196.815, 196.825 and 196.905 by sections 3 and 5 to 10 of this
2009 Act apply only to permits first applied for or permits
renewed on or after the effective date of this 2009 Act.
(2) The repeal of ORS 196.830 by section 11 of this 2009 Act
does not apply to the requirement of estuarine resource
replacement included as a condition in a permit applied for or
renewed before the effective date of this 2009 Act. The repeal of
ORS 196.830 by section 11 of this 2009 Act applies to permits
first applied for or permits renewed on or after the effective
date of this 2009 Act. + }
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