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 414
House Bill 2156
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.
Authorizes Department of State Lands to allow mitigation banks
for effects on waters of state. Changes name of Oregon Wetlands
Mitigation Bank Revolving Fund Account to Oregon Mitigation Bank
Account. Clarifies certain references to mitigation.
A BILL FOR AN ACT
Relating to mitigation for water resources; creating new
provisions; and amending ORS 196.600, 196.605, 196.610,
196.615, 196.620, 196.623, 196.625, 196.630, 196.640, 196.643,
196.645, 196.650, 196.655, 196.660, 196.665, 196.682, 196.686,
196.800, 196.825 and 196.885.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 196.600 is amended to read:
196.600. As used in ORS 196.600 to 196.655:
(1) 'Compensatory { - wetland - } mitigation' means
activities conducted by a permittee or third party to create,
restore { + , + } { - or - } enhance { - wetland functional
attributes - } { + or preserve the functions and values of the
water resources of this state + } to compensate for the adverse
effects of project development { + to waters of this state + }
or to resolve violations of ORS 196.800 to 196.905.
(2) 'Credit' means the measure of the increase in { - wetland
functional attributes - } { + the functions and values of the
water resources of this state + } achieved at a mitigation bank
site.
(3) 'Mitigation bank' means a { - wetland - } site
{ - , - } created, restored { + , + } { - or - } enhanced
{ + or preserved + } in accordance with ORS 196.600 to 196.655
to compensate for unavoidable adverse impacts { + to waters of
this state + } due to activities which otherwise comply with the
requirements of ORS 196.600 to 196.905.
(4) 'Mitigation bank instrument' means the legally binding and
enforceable agreement between the Director of the Department of
State Lands and a mitigation bank sponsor that formally
establishes the mitigation bank and stipulates the terms and
conditions of the mitigation bank's construction, operation and
long-term management.
(5) 'Off-site compensatory { - wetland - } mitigation' means
activities conducted away from the project site that
{ - restore, create or enhance wetland functional attributes - }
{ + create, restore, enhance or preserve functions and values of
the water resources of this state + } in order to compensate for
the adverse impacts to
{ - wetlands - } { + waters of this state + } from project
development.
(6) 'On-site compensatory { - wetland - } mitigation' means
activities conducted at the project site to { - restore, create
or enhance wetland functional attributes - } { + create,
restore, enhance or preserve functions and values of the water
resources of this state + } in order to compensate for the
adverse impacts to { - wetlands - } { + waters of this
state + } from project development.
(7) 'Permit action' means activity under a specific removal or
fill permit or other authorization requested or issued under ORS
196.600 to 196.905.
(8) 'Service area' means the boundaries set forth in a
mitigation bank instrument that include one or more watersheds
identified on the United States Geological Survey, Hydrologic
Unit Map - 1974, State of Oregon, for which a mitigation bank
provides credits to compensate for adverse effects from project
developments { + to waters of this state + }. Service areas for
mitigation banks are not mutually exclusive.
(9) 'Statewide Comprehensive Outdoor Recreation Plan' means the
plan created by the State Parks and Recreation Department
pursuant to the federal Land and Water Conservation Fund Act of
1965, as amended (16 U.S.C. 460-L et seq.).
SECTION 2. ORS 196.605 is amended to read:
196.605. It is the purpose of ORS 196.600 to 196.655 to:
(1) Promote, in concert with other federal and state programs
as well as interested parties, the maintenance and conservation
of
{ - wetlands - } { + the water resources of this state + };
(2) Improve cooperative efforts among private, nonprofit and
public entities for the management and protection of
{ - wetlands - } { + the waters of this state + };
(3) Offset losses of { - wetland functional attributes - }
{ + the functions and values of the water resources of this
state + } caused by activities { - which - } { + that + }
otherwise comply with state and federal law in order to create,
restore { + , + } { - or - } enhance { - wetland functional
attributes - } { + or preserve those functions and values + };
(4) Maintain and encourage a predictable, efficient regulatory
framework for environmentally acceptable development;
{ - and - }
(5) Provide an option for accomplishing off-site compensatory
{ - wetland - } mitigation when on-site compensatory
{ - wetland - } mitigation is not practicable { - . - } { + ;
and
(6) Allow the use of mitigation banks to offset adverse effects
on the waters of this state. + }
SECTION 3. ORS 196.610 is amended to read:
196.610. { - Subject to approval by the State Land Board, - }
The Director of the Department of State Lands may:
(1) Charge a fee for purchase of credits in the mitigation bank
as provided by ORS 196.600 to 196.655.
(2) Acquire or accept title to lands suitable for use in
mitigation banks or actions, or to { - protect - }
{ + preserve + } sensitive or unique { - wetlands - }
habitat { + in or near the waters of this state + }.
(3) Pay costs incurred for alterations needed to create,
restore { + , + } { - or - } enhance { - wetland areas - }
{ + or preserve waters of this state + } for purposes of
carrying out the provisions of ORS 196.600 to 196.655 or 196.800
to 196.905.
(4) Authorize payment of administrative, research or scientific
monitoring expenses of the Department of State Lands in carrying
out the provisions of ORS 196.600 to 196.655 or 196.800 to
196.905.
(5) Disburse funds received under the federal Coastal Zone
Management Act of 1972, as amended (16 U.S.C. 1451 et seq.), for
such purposes as specifically stipulated in a grant award.
(6) Receive funds under the federal Emergency Wetlands
Resources Act of 1986, P.L. 99-645, for the voluntary acquisition
of wetlands and interests therein according to the wetlands
provisions of the Statewide Comprehensive Outdoor Recreation
Plan. Funds received under the federal Emergency Wetlands
Resources Act of 1986, P.L. 99-645, shall be used for
nonmitigation complementary purposes and programs of ORS 196.600
to 196.655.
SECTION 4. ORS 196.615 is amended to read:
196.615. (1) In accordance with the provisions of ORS 196.600
to 196.655, { - upon the approval of the State Land Board, - }
the Director of the Department of State Lands shall initiate and
implement a program for { - wetlands - } mitigation banks. The
director shall encourage the development of and the expeditious
approval of mitigation banks and other types of compensatory
{ - wetland - } mitigation.
(2) { - Subject to the approval of the State Land Board, - }
The Department of State Lands shall adopt, by rule, standards and
criteria for the site selection process, operation and evaluation
of mitigation banks. Criteria to be considered shall include but
need not be limited to:
(a) Historical { - wetland - } trends { + relating to the
waters of this state + }, including the estimated rate of current
and future losses of the respective types of { - wetlands - }
{ + waters of this state + }.
(b) The contributions of the { - wetlands - } { + waters of
this state + } to:
(A) Wildlife, migratory birds and resident species;
(B) Commercial and sport fisheries;
(C) Surface and ground water quality and quantity, and flood
moderation;
(D) Outdoor recreation including enhancement of scenic
waterways; and
(E) Scientific and research values.
(c) Regional economic needs.
{ + (3) The rules adopted by the department under this
section must also include:
(a) Guidelines for the use of mitigation banks to compensate
for adverse effects of project development or to resolve
violations of ORS 196.800 to 196.905 related to waters of this
state; and
(b) Guidelines for allowing a permittee or third party to
create a mitigation bank or to conduct compensatory mitigation in
order to create, restore, enhance or preserve water resources of
this state. + }
{ - (3) - } { + (4) + } For each mitigation bank, the
department shall establish a well-defined plan, including
preliminary objectives, inventory of resource values and an
evaluation and monitoring program.
SECTION 5. 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 (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.
At the request of a mitigation bank sponsor, the Director of the
Department of State Lands may authorize the withdrawal of
mitigation bank credits by a public benefit corporation as
defined in ORS 65.001 or a public body as defined by ORS 174.109
designated by the director for the purpose of reserving credits
for future use in accordance with this subsection. The director
shall manage such transactions to ensure that each credit is used
no more than one time to satisfy a use in accordance with this
section.
(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 - } { + director + } 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 { + unless the director
determines that it is environmentally preferable to exceed this
limitation + }.
(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 { + or preservation + } 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 - } { + impacted or that
the functions and values of the mitigation bank compensate for
unavoidable adverse effects on the waters of this state due to
the activities otherwise allowed under ORS 196.600 to
196.905 + }.
(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 - } { + impacted; or
(c) The functions and values of the mitigation bank do not
compensate for unavoidable adverse effects on the waters of this
state due to the activities otherwise allowed under ORS 196.600
to 196.905 + }.
SECTION 6. ORS 196.623 is amended to read:
196.623. (1) The Department of State Lands may approve a
watershed enhancement program and certify the project as a
{ - wetlands - } mitigation bank under ORS 196.600 to 196.655
if the watershed enhancement program complies with the rules
adopted by the department under ORS 196.615 for certification of
a program as a { - wetlands - } mitigation bank.
(2) A person, state agency, federal agency, federally
recognized Indian tribe, watershed council or political
subdivision in this state that owns land upon which is located a
watershed enhancement program that qualifies as a
{ - wetlands - } mitigation bank under subsection (1) of this
section may sell mitigation credit from the mitigation bank
subject to ORS 196.600 to 196.655 and the rules of the Department
of State Lands adopted under ORS 196.600 to 196.655.
SECTION 7. ORS 196.625 is amended to read:
196.625. (1) The Director of the Department of State Lands
shall maintain a record of fill and removal activities and
actions for each mitigation bank implemented and conduct
monitoring of mitigation banks with moneys from the Oregon
{ - Wetlands - } Mitigation Bank { - Revolving Fund - }
Account.
(2) The director shall provide annual reports to the State Land
Board on moneys spent and received for each { - wetland - }
mitigation bank.
SECTION 8. ORS 196.630 is amended to read:
196.630. { - Subject to the approval of the State Land Board,
the Director of - } The Department of State Lands shall adopt
rules according to the provisions of ORS chapter 183 to carry out
the provisions of ORS 196.600 to 196.655.
SECTION 9. ORS 196.640 is amended to read:
196.640. (1) The Oregon { - Wetlands - } Mitigation Bank
{ - Revolving Fund - } Account is established, separate and
distinct from the General Fund. All moneys received under ORS
196.645 shall be paid into the State Treasury and credited to the
account. All moneys in the account are appropriated continuously
to the Department of State Lands to be used by the department as
set forth in ORS 196.650. The moneys in the account may be
invested and reinvested as provided in ORS 293.701 to 293.820.
Interest earned by the account shall be credited to the account.
(2) The department shall keep a record of all moneys deposited
in the account. The record shall indicate by separate cumulative
accounts the source from which the moneys are derived and the
individual activity or program against which each withdrawal is
charged.
(3) The department shall publish annually the record of moneys
deposited in and removed from the account.
(4) The { - Director of the - } Department of State Lands
may adopt rules for prioritizing expenditures from the account
for the purposes specified in ORS 196.650.
SECTION 10. 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 (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 11. ORS 196.645 is amended to read:
196.645. The following moneys shall be paid into the Oregon
{ - Wetlands - } Mitigation Bank { - Revolving Fund - }
Account:
(1) Any moneys appropriated for that purpose by the Legislative
Assembly;
(2) Moneys received from conditions imposed on a permit,
authorizations or resolutions of violations, except civil
penalties, involving compensatory { - wetland - } mitigation
in which the Department of State Lands is the party responsible
for the compensatory { - wetland - } mitigation;
(3) Moneys awarded for such purposes as specifically stipulated
under grants through the federal Emergency Wetlands Resources Act
of 1986, P.L. 99-645, or the federal Coastal Zone Management Act
of 1972, 16 U.S.C. 1451 et seq., as amended;
(4) Moneys obtained by gift, bequest, donation or grant from
any other public or private source for the purposes of ORS
196.600 to 196.655 or 196.800 to 196.905;
(5) Repayment of moneys from the account, including interest on
such moneys; and
(6) Moneys obtained from interest or other earnings from
investments of moneys in the account.
SECTION 12. ORS 196.650 is amended to read:
196.650. The Department of State Lands may use the moneys in
the Oregon { - Wetlands - } Mitigation Bank { - Revolving
Fund - } Account for the following purposes:
(1) For the voluntary acquisition of land { + or interests
therein + } suitable for use in mitigation banks.
(2) To pay for specific projects to create, restore { + , + }
{ - or - } enhance { - wetland areas - } { + or preserve
water resources of this state + } for purposes of carrying out
the provisions of ORS 196.600 to 196.905. Moneys deposited in the
account for { - wetland - } impacts { + to the waters of this
state + } may be used only for { - wetland creation,
restoration and enhancement - } { + projects that create,
restore, enhance or preserve water resources of this state + }.
{ + (3) For the implementation of long-term protection
measures related to projects that create, restore, enhance or
preserve water resources of this state. + }
{ - (3) - } { + (4) + } For purchase of credits from
approved mitigation banks.
{ - (4) - } { + (5) + } For payment of administrative,
research or scientific monitoring expenses of the department in
carrying out the provisions of ORS 196.600 to 196.655.
{ - (5) - } { + (6) + } For the disbursal of funds received
under the federal Coastal Zone Management Act of 1972, as amended
(16 U.S.C. 1451 et seq.), for such purposes as specifically
stipulated in a grant award.
{ - (6) - } { + (7) + } For the disbursal of funds received
under the federal Emergency Wetlands Resources Act of 1986, P.L.
99-645, for the voluntary acquisition of wetlands and interests
therein as identified in the wetlands provisions of the Statewide
Comprehensive Outdoor Recreation Plan.
SECTION 13. ORS 196.655 is amended to read:
196.655. As part of the report to the State Land Board required
under ORS 196.885, the Director of the Department of State Lands
shall prepare an annual report on the Oregon
{ - Wetlands - } Mitigation Bank { - Revolving Fund - }
Account. The report shall include, but need not be limited to:
(1) The financial status of the account;
(2) Creation, restoration { + , + } { - or - } enhancement
{ + or preservation + } activities and credits sold, granted or
otherwise disposed of or remaining in mitigation banks
established under ORS 196.600 to 196.655;
(3) { + Portions of the waters of this state, including but
not limited to + } wetlands { + , + } acquired with moneys in the
account;
(4) Compensatory { - wetland - } mitigation projects
financed with moneys in the account; and
(5) For each mitigation bank, a summary of activities,
including but not limited to:
(a) A description of the location, size, number of potential
credits and credits withdrawn for each specific permit action;
and
(b) The status of all mitigation bank activities pending or
completed during the past year.
SECTION 14. ORS 196.660 is amended to read:
196.660. ORS 196.600 to 196.655 are intended to be
supplementary to, and are not intended to abrogate, any state or
federal law relating to { - wetlands - } { + the waters of
this state + }.
SECTION 15. ORS 196.665 is amended to read:
196.665. ORS 196.600 to 196.655 may be cited as the 'Oregon
{ - Wetlands - } Mitigation Bank Act { - of 1987 - } . '
SECTION 16. 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 and 196.835. In lieu of the substantive standards for
permit issuance in ORS 196.825 (2), 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 ensure that the
project:
(a) Is properly designed or configured to minimize the need for
alterations to waters of 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 ensure wetland creation,
restoration { + , + }
{ - or - } enhancement { + or preservation + } measures are
implemented to fully replace impacted resources.
(2) In any order approving a plan { - which - }
{ + that + } 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 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 17. 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 { + or
preservation + } 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 18. 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 flows during a
portion of every year and which provides spawning, rearing or
food-producing areas for food and game fish.
(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 - } { + creating, restoring, enhancing or
preserving + } substitute { - wetland or water resources - }
{ + functions and values for the waters of this state + }.
(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 19. 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 flows during a
portion of every year and which provides spawning, rearing or
food-producing areas for food and game fish.
(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 - } { + creating, restoring, enhancing or
preserving + } substitute { - wetland or water resources - }
{ + functions and values for the waters of this state + }.
(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 20. 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.
(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 - } { + functions
and values + } of the { - lost wetland - } { + impacted water
resources of this state + }.
(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 21. ORS 196.885 is amended to read:
196.885. The Director of the Department of State Lands shall
submit an annual report to the State Land Board on the activities
conducted under ORS 196.600 to 196.905. The annual report shall
include the following:
(1) The number of fill and removal permits applied for, denied
and granted, organized according to whether or not the permits
were for waters subject to section 404 of the Federal Water
Pollution Control Act (P.L. 92-500, as amended). For all permits
granted or outstanding during the prior year, a separate summary
shall be included for fills and removals, organized by river or
other water body, that shows:
(a) The total number of permits, the number of new permits and
the number of renewal permits.
(b) The volume and acreage of fills and removals authorized
during the past year, and the volume and acreage of fills and
removals completed during the past year.
(2) By river or other water body, a summary of the total volume
and acreage of fills and removals made under a general waiver,
general permit or similar authority.
(3) A summary of mitigation measures, including a description
of each mitigation project approved during the past year
including the location and size of each mitigation project and a
report on the status of all mitigation projects pending or
completed during the past year.
(4) A summary of enforcement activities, including:
(a) The number of potential violations reported.
(b) The number of compliance investigations conducted.
(c) The results of compliance actions, including:
(A) The number of cases resolved by voluntary compliance,
administrative hearings and judicial enforcement proceedings;
(B) The amount of damages and penalties assessed;
(C) The amount of damages and penalties recovered; and
(D) A brief description of each after-the-fact permit issued,
including the location and size by volume and acreage.
(5) A description of staffing, including the number of
full-time equivalent positions devoted to the permit program and,
for each position, the qualifications and job description.
(6) The report on the Oregon { - Wetlands - } Mitigation
Bank
{ - Revolving Fund - } Account as required under ORS 196.655.
(7) The number of and average time for responding to notices
received by local governments and the number of responses that
took more than 30 days.
(8) The number of wetland conservation plans approved by the
director and a description of each, including the issues raised
during the approval process.
SECTION 22. { + (1) The amendments to ORS 196.640 by section 9
of this 2009 Act are intended to change the name of the 'Oregon
Wetlands Mitigation Bank Revolving Fund Account' to the 'Oregon
Mitigation Bank Account. '
(2) For the purpose of harmonizing and clarifying statute
sections published in Oregon Revised Statutes, the Legislative
Counsel may substitute for words designating the 'Oregon Wetlands
Mitigation Bank Revolving Fund Account,' wherever they occur in
Oregon Revised Statutes, other words designating the 'Oregon
Mitigation Bank Account.' + }
----------