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 3566
 
                         House Bill 3058
 
Sponsored by Representative SCHAUFLER; Representative WITT
 
 
                             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.
 
  Changes definition of 'applicant' for purposes of removal-fill
permitting program.
 
                        A BILL FOR AN ACT
Relating to removal-fill permitting program; amending ORS
  196.825.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. 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 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 - }
 { + a + } person authorized by a landowner to conduct a removal
or fill activity  { + or a person who has filed a written
application with the Director of the Department of State Lands
for a permit to remove material from the beds or banks of any
waters of this state or fill any waters of this state + }.
  (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.
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