As used in ORS
196.105 to 196.125:
(1) “Commission” means the Columbia River Gorge Commission
established under section 5 of the Columbia River Gorge National Scenic
Area Act, P.L. 99-663.
(2) “General management area” means the area within the scenic area
that is not an urban area or special management area.
(3) “Management plan” means the management plan for the Columbia
River Gorge National Scenic Area adopted by the commission.
(4) “Special management area” means any area identified as such in
the Columbia River Gorge National Scenic Area Act.
(5) “Urban area” means the 13 towns or cities as identified in the
Columbia River Gorge National Scenic Area Act. [1987 c.856 §1; 1993 c.317
§1](1) The Legislative
Assembly, considering the recommendations of the Land Conservation and
Development Commission, finds that the management plan adopted pursuant
to the Columbia River Gorge National Scenic Area Act achieves on balance
the purposes of the statewide planning goals adopted pursuant to ORS
197.230.
(2) Land use decisions subject to review under ORS 197.835 for
compliance with the goals for those portions of Multnomah, Hood River and
Wasco Counties within the Columbia River Gorge National Scenic Area,
except land within urban area boundaries, are exempt from the
requirements of ORS 197.610 to 197.625. This exemption becomes effective
in a county when that county or the Columbia River Gorge Commission
adopts and implements ordinances that are approved pursuant to sections
7(b) and 8(h) to 8(k) of the Columbia River Gorge National Scenic Area
Act, P.L. 99-663.
(3) The Director of the Department of Land Conservation and
Development may petition the Land Conservation and Development Commission
to decertify the management plan at any time. If the Land Conservation
and Development Commission receives a petition from the director, the
Land Conservation and Development Commission shall decertify the
management plan within 120 days, if it determines that any part of the
management plan does not achieve on balance the purposes of the statewide
planning goals adopted pursuant to ORS 197.230. [1993 c.317 §3]If the urban area boundaries of the Columbia
River Gorge National Scenic Area are revised to include land that was
once within the general management area or the special management area,
the management plan no longer applies to that land and the applicable
provisions of ORS chapters 92, 195, 197, 215 and 227 and the rules, plans
and ordinances adopted thereunder apply. [1993 c.317 §4](1) Notwithstanding any provision setting forth criteria or
conditions for approval of a permit or requiring action by the county in
ORS chapter 92, 195, 196, 197 or 215 or in a local ordinance or charter,
a county may deny any permit or otherwise refuse to take any action that
is inconsistent with the purposes and standards as provided in sections 3
and 6(d) of the Columbia River Gorge National Scenic Area Act, P.L.
99-663, or the scenic area management plan adopted pursuant to the
Columbia River Gorge National Scenic Area Act, P.L. 99-663. When taking
action on a permit application, a county shall follow procedures
consistent with the procedures set out in ORS 215.402 to 215.438 and
shall comply with the time limitations set out in ORS 215.427. The
authority of a county to deny a permit or otherwise take action under
this section shall be in addition to and not in lieu of any other
authority for denial that may be exercised by the county pursuant to the
provisions of ORS chapters 195, 196 and 197. Any action of a county taken
pursuant to this subsection shall be appealed to the Columbia River Gorge
Commission as provided in section 15(a)(2) of the Columbia River Gorge
National Scenic Area Act, P.L. 99-663.
(2) Notwithstanding any other provision of law, a state agency may
not take action that must be reviewed for compatibility with an
acknowledged comprehensive plan or land use regulation in the Columbia
River Gorge National Scenic Area until the agency determines through
written findings that the action is consistent with the purposes and
standards as provided in sections 3 and 6(d) of the Columbia River Gorge
National Scenic Area Act, P.L. 99-663, and the interim guidelines or the
scenic area management plan.
(3) A state agency may seek any of the administrative or judicial
remedies or participate in any proceeding provided by the Columbia River
Gorge National Scenic Area Act, P.L. 99-663.
(4) The provisions of ORS 197.180 do not apply to the Columbia
River Gorge Commission. [1987 c.856 §2; 2003 c.181 §1](1) For purposes of judicial review, decisions of the Columbia
River Gorge Commission shall be subject to review solely as provided in
this section, except as otherwise provided by the Columbia River Gorge
National Scenic Area Act, P.L. 99-663.
(2)(a) A final action or order by the commission in a review or
appeal of any action of the commission pursuant to section 10(c) or
15(b)(4) of the Columbia River Gorge National Scenic Area Act, or a final
action or order by the commission in a review or appeal of any action of
a county pursuant to section 15(a)(2) or 15(b)(4) of the Columbia River
Gorge National Scenic Area Act, shall be reviewed by the Court of Appeals
on a petition for judicial review filed and served as provided in
subsections (3) and (4) of this section and ORS 183.482.
(b) On a petition for judicial review under paragraph (a) of this
subsection the Court of Appeals also shall review the action of the
county that is the subject of the commission’s order, if requested in the
petition.
(c) The Court of Appeals shall issue a final order on review under
this subsection within the time limits provided by ORS 197.855.
(d) In lieu of judicial review under paragraphs (a) and (b) of this
subsection, a county action may be appealed to the Land Use Board of
Appeals under ORS 197.805 to 197.855. A notice of intent to appeal the
county’s action shall be filed not later than 21 days after the
commission’s order on the county action becomes final.
(e) Notwithstanding ORS 197.835, the scope of review in an appeal
pursuant to paragraph (d) of this subsection shall not include any issue
relating to interpretation or implementation of the Columbia River Gorge
National Scenic Area Act, P.L. 99-663, and any issue related to such
interpretation or implementation shall be waived by the filing of an
appeal under paragraph (d) of this subsection.
(f) After county land use ordinances are approved pursuant to
sections 7(b) and 8(h) to (k) of the Columbia River Gorge National Scenic
Area Act, P.L. 99-663, the Land Use Board of Appeals shall not review
land use decisions within the general management area or special
management area for compliance with the statewide planning goals. The
limitation of this paragraph shall not apply if the Land Conservation and
Development Commission decertifies the management plan pursuant to ORS
196.107.
(3)(a) If a petition for judicial review of a commission order is
filed pursuant to subsection (2)(a) of this section, the procedures to be
followed by the parties, the commission and the court, and the court’s
review, shall be in accordance with ORS 183.480, 183.482 (1) to (7),
183.485, 183.486, 183.490 and 183.497, except as this section or the
Columbia River Gorge National Scenic Area Act, P.L. 99-663, otherwise
provides.
(b) Notwithstanding any provision of ORS 183.482:
(A) The commission shall transmit the original record or the
certified copy of the entire record within 21 days after service of a
petition for judicial review is served on the commission; and
(B) The parties shall file briefs with the court within the times
allowed by rules of the court.
(c) The court may affirm, reverse or remand the order. If the court
finds that the agency has erroneously interpreted a provision of law and
that a correct interpretation compels a particular action, the court
shall:
(A) Set aside or modify the order; or
(B) Remand the case to the agency for further action under a
correct interpretation of the provision of law.
(d) The court shall remand the order to the agency if the court
finds the agency’s exercise of discretion to be:
(A) Outside the range of discretion delegated to the agency by law;
(B) Inconsistent with an agency rule, an officially stated agency
position or a prior agency practice, unless the inconsistency is
explained by the agency; or
(C) Otherwise in violation of a constitutional or statutory
provision.
(e) The court shall set aside or remand the order if the court
finds that the order is not supported by substantial evidence in the
whole record.
(f) Notwithstanding any other provision of this section, in any
case where review of a county action as well as a commission order is
sought pursuant to subsection (2)(a) and (b) of this section, the court
shall accept any findings of fact by the commission which the court finds
to be supported by substantial evidence in the whole record, and such
findings by the commission shall prevail over any findings by the county
concerning the same or substantially the same facts.
(4)(a) Except as otherwise provided by this section or the Columbia
River Gorge National Scenic Area Act, P.L. 99-663, if review of a county
action is sought pursuant to subsection (2)(b) of this section, the
procedures to be followed by the parties, the county and the court, and
the court’s review, shall be in accordance with those provisions
governing review of county land use decisions by the Land Use Board of
Appeals set forth in ORS 197.830 (2) to (8), (10), (15) and (16) and
197.835 (2) to (10), (12) and (13). As used in this section, “board” as
used in the enumerated provisions shall mean “court” and the term “notice
of intent to appeal” in ORS 197.830 (10) shall refer to the petition
described in subsection (2) of this section.
(b) In addition to the other requirements of service under this
section, the petitioner shall serve the petition upon the persons and
bodies described in ORS 197.830 (9), as a prerequisite to judicial review
of the county action.
(c) In accordance with subsection (3)(b)(B) of this section, a
party to a review of both a commission order and a county action shall
file only one brief with the court, which shall address both the
commission order and the county action.
(d) Review of a decision under ORS 197.830 to 197.845 shall be
confined to the record. Subject to subsection (3)(f) of this section, the
court shall be bound by any finding of fact of the county for which there
is substantial evidence in the whole record. The court may appoint a
master and follow the procedures of ORS 183.482 (7) in connection with
matters that the board may take evidence for under ORS 197.835 (2).
(5) Approval of county land use ordinances by the commission
pursuant to section 7 of the Columbia River Gorge National Scenic Area
Act, P.L. 99-663, may be reviewed by the Court of Appeals as provided in
ORS 183.482.
(6) Notwithstanding ORS 183.484, any proceeding filed in circuit
court by or against the commission shall be filed with the circuit court
for the county in which the commission has a principal business office or
in which the land involved in the proceeding is located. [1987 c.856 §3;
1989 c.761 §17; 1993 c.317 §5; 1995 c.595 §16; 1999 c.621 §4] Notwithstanding
any other provision of law, in any proceeding by a state agency or local
government to acquire property within the Columbia River Gorge National
Scenic Area, through the exercise of the power of eminent domain, the
property value shall not be reduced because of any diminution in value
resulting from the potential of the taking. [1987 c.856 §6](1) Notwithstanding any other provision of law,
no state agency, special district or local government may exercise any
regulatory power for the purpose of establishing a scenic buffer around
the Columbia River Gorge National Scenic Area. Such regulatory powers
include but are not limited to:
(a) Exercising the power of eminent domain;
(b) Establishing scenic easements; or
(c) Adopting ordinances or land use plans that prohibit or limit
the use of land.
(2) As used in this section, “Columbia River Gorge National Scenic
Area” means that area designated in the Columbia River Gorge National
Scenic Area Act, P.L. 99-663. [1987 c.856 §7]COLUMBIA RIVER GORGE COMPACT The Legislative Assembly of the State
of Oregon hereby ratifies the Columbia River Gorge Compact set forth
below, and the provisions of such compact hereby are declared to be the
law of this state upon such compact becoming effective as provided in
Article III.___________________________________________________________________________
___
A compact is entered into by and between the states of Washington
and Oregon, signatories hereto, with the consent of the Congress of the
United States of America, granted by an Act entitled, “The Columbia River
Gorge National Scenic Area Act,” P.L. 99-663.ARTICLE IColumbia Gorge Commission Establisheda. The States of Oregon and Washington establish by way of this
interstate compact a regional agency known as the Columbia River Gorge
Commission. The commission established in accordance with this compact
shall have the power and authority to perform all functions and
responsibilities in accordance with the provisions of this compact and of
the Columbia River Gorge National Scenic Area Act (the federal Act),
which is incorporated by this specific reference in this agreement. The
commission’s powers shall include but not be limited to:
1. The power to sue and be sued.
2. The power to disapprove a land use ordinance enacted by a county
if the ordinance is inconsistent with the management plan, as provided in
P.L 96-663 §7(b)(3)(B).
3. The power to enact a land use ordinance setting standards for
the use of nonfederal land in a county within the scenic area if the
county fails to enact land use ordinances consistent with the management
plan, as provided in P.L. 99-663 §7(c).
4. According to the provisions of P.L. 99-663 §10(c), the power to
review all proposals for major development action and new residential
development in each county in the scenic area, except urban areas, and
the power to disapprove such development if the commission finds the
development is inconsistent with the purposes of P.L. 99-663.
b. The commission shall appoint and remove or discharge such
personnel as may be necessary for the performance of the commission’s
functions, irrespective of the civil service, personnel or other merit
system laws of any of the party states.
c. The commission may establish and maintain, independently or in
conjunction with any one or more of the party states, a suitable
retirement system for its full-time employees. Employees of the
commission shall be eligible for social security coverage in respect of
old age and survivors insurance provided that the commission takes such
steps as may be necessary pursuant to federal law to participate in such
program of insurance as a governmental agency or unit. The commission may
establish and maintain or participate in such additional programs of
employee benefits as may be appropriate.
d. The commission shall obtain the services of such professional,
technical, clerical and other personnel as may be deemed necessary to
enable it to carry out its functions under this compact. The commission
may borrow, accept, or contract for the services of personnel from any
state of the United States or any subdivision or agency thereof, from any
interstate agency, or from any institution, person, firm or corporation.
e. Funds necessary to fulfill the powers and duties imposed upon
and entrusted to the commission shall be provided as appropriated by the
legislatures of the states in accordance with Article IV. The commission
may also receive gifts, grants, endowments and other funds from public or
private sources as may be made from time to time, in trust or otherwise,
for the use and benefit of the purposes of the commission and expend the
same or any income therefrom according to the terms of the gifts, grants,
endowments or other funds.
f. The commission may establish and maintain such facilities as may
be necessary for the transacting of its business. The commission may
acquire, hold and convey real and personal property and any interest
therein.
g. The commission shall adopt bylaws, rules, and regulations for
the conduct of its business, and shall have the power to amend and
rescind these bylaws, rules and regulations. The commission shall publish
its bylaws, rules and regulations in convenient form and shall file a
copy thereof and of any amendment thereto, with the appropriate agency or
officer in each of the party states.ARTICLE IIThe Commission Membershipa. The commission shall be made up of twelve voting members
appointed by the states, as set forth herein, and one non-voting member
appointed by the U.S. Secretary of Agriculture.
b. Each state governor shall appoint the members of the commission
as provided in the federal Act (three members who reside in the State of
Oregon, including one resident of the scenic area, to be appointed by the
Governor of Oregon, and three members who reside in the State of
Washington, including one resident of the scenic area, appointed by the
Governor of Washington).
c. One additional member shall be appointed by the governing body
of each of the respective counties of Clark, Klickitat, and Skamania in
Washington, and Hood River, Multnomah, and Wasco in Oregon, provided that
in the event the governing body of a county fails to make such an
appointment, the Governor of the state in which the county is located
shall appoint such a member.
d. The terms of the members and procedure for filling vacancies
shall all be as set forth in the federal Act.ARTICLE IIIEffective Date of Compact and CommissionThis compact shall take effect, and the commission may exercise its
authorities pursuant to the compact and pursuant to the Columbia River
Gorge National Scenic Area Act when it has been ratified by both states
and upon the appointment of four initial members from each state. The
date of this compact shall be the date of the establishment of the
commission.ARTICLE IVFundinga. The States of Washington and Oregon hereby agree to provide by
separate agreement or statute of each state for funding necessary to
effectuate the commission, including the establishment of compensation or
expenses of commission members from each state which shall be paid by the
state of origin.
b. The commission shall submit to the Governor or designated
officer or officers of each party state a budget of its estimated
expenditures for such period as may be required by the laws of that
jurisdiction for presentation to the legislature thereof.
c. Subject to appropriation by their respective legislatures, the
commission shall be provided with such funds by each of the party states
as are necessary to provide the means of establishing and maintaining
facilities, a staff of personnel, and such activities as may be necessary
to fulfill the powers and duties imposed upon and entrusted to the
commission.
d. The commission’s proposed budget and expenditures shall be
apportioned equally between the states.
e. The commission shall keep accurate accounts of all receipts and
disbursements. The receipts and disbursements of the commission shall be
subject to the audit and accounting procedures established under its
bylaws. However, all receipts and disbursements of funds handled by the
commission shall be audited yearly by the appropriate state auditing
official and the report of the audit shall be included in and become a
part of the annual report of the commission.
f. The accounts of the commission shall be open at any reasonable
time for inspection by the public.ARTICLE VSeverabilityIf any provision of this compact, or its application to any person
or circumstance, is held to be invalid, all other provisions of this
compact, and the application of all of its provisions to all other
persons and circumstances, shall remain valid, and to this end the
provisions of this compact are severable.
___________________________________________________________________________
___ [Formerly 390.500]The Governor, the Columbia River Gorge Commission
and all state agencies and counties are hereby directed and provided
authority to carry out their respective functions and responsibilities in
accordance with the compact executed under ORS 196.150 to 196.165 and the
Columbia River Gorge National Scenic Area Act. [Formerly 390.505] (1) Each
member of the Columbia River Gorge Commission appointed by the Governor
under ORS 196.150 shall be subject to Senate confirmation pursuant to
section 4, Article III of the Oregon Constitution and shall serve at the
pleasure of the Governor until the member’s term expires or until a
disqualifying change in residence.
(2) A member shall serve a period of four years.
(3) Members of the commission appointed from Oregon are entitled to
compensation and expenses as provided in ORS 292.495. [Formerly 390.510](1) The Columbia River Gorge Commission established under ORS
196.150 may designate its employees as employees and the commission as an
employer subject to the Oregon Public Employees Retirement System under
ORS chapters 238 and 238A or as an employer and employees subject to a
retirement system provided by the State of Washington under the laws of
the State of Washington.
(2) The commission may designate its employees as employees
eligible under benefit plans provided under ORS 243.105 to 243.285 or
under benefit plans provided under the laws of the State of Washington.
[Formerly 390.515; 1991 c.67 §46; 1997 c.222 §44; 2003 c.733 §51]PACIFIC OCEAN RESOURCES COMPACT (1) The
Legislative Assembly of the State of Oregon hereby ratifies the Pacific
Ocean Resources Compact as set forth in ORS 196.180. This compact shall
take effect after two or more of the States of Alaska, California, Hawaii
or Washington ratify the compact and consent is granted by Congress as
required by section 10, Article I of the Constitution of the United
States.
(2) In addition to the States of Alaska, California, Hawaii and
Washington, the Province of British Columbia may become an associate
party to the compact, without voting power. Upon request of the Province
of British Columbia and approval of Congress, the Province of British
Columbia may become a full party to this compact with the same rights and
powers as the party states. [1991 c.617 §1]Note: 196.175 to 196.185 were enacted into law by the Legislative
Assembly but were not added to or made a part of ORS chapter 196 by
legislative action. See Preface to Oregon Revised Statutes for further
explanation. The provisions of the Pacific Ocean
Resources Compact are as follows:
___________________________________________________________________________
___ARTICLE IFindings and Purpose
A. The parties recognize:
(1) The States of Alaska, California, Hawaii, Oregon and Washington
and the Province of British Columbia have a common interest in the
protection of marine and coastal resources. This common interest results
from:
(a) The fluid, dynamic ocean currents and atmospheric winds that
carry pollutants beyond one party’s coastal area to another.
(b) The migratory nature of many important living marine resources
that depend upon the marine habitat of various parties for different
parts of their lifecycle.
(c) The economic reliance of each party upon renewable resources of
the ocean.
(d) The use of the ocean for transport of oil and other hazardous
substances between ports in the various parties and other nations.
(e) A regional interest in providing a stable environment for those
communities dependent upon ocean resources and ocean trade for a
livelihood.
(2) Some marine resource activities, such as fisheries, are
currently highly managed with regard for their regional or transboundary
nature through existing state programs, regional fisheries councils,
interstate compacts and international treaties. Because there are
existing formal mechanisms for interstate cooperation and coordination
for these marine resource activities, this compact is not intended to
encompass these activities or to grant to the Pacific Ocean Resources
Compact authority to regulate resource allocation or management as it may
pertain to the use and consumption of marine resources.
(3) A formal interstate agreement does not exist to address and
resolve issues of mutual concern or to coordinate individual programs of
the parties that affect regional interests in the areas of:
(a) Prevention of oil and hazardous substance spills;
(b) Transportation of oil and other hazardous substances;
(c) Oil and hazardous substance spill response planning;
(d) Environmental monitoring and research; and
(e) Ocean resource management.
(4) Each party has jurisdiction over the submerged and submersible
lands within its territorial sea and responsibility for management of
many marine resources and ocean uses. Each party has unique natural
resource, social, economic and political conditions for which local
management by the individual party is the most appropriate.
(5) Parties now do not have an effective means to address mutual
concerns related to transport of oil and hazardous substances in waters
within and beyond the party’s jurisdiction that may jeopardize ocean
resources and uses important to one or more coastal parties.
(6) The 1983 Presidential Proclamation of the 200-mile United
States Exclusive Economic Zone has created the opportunity for all
coastal states to more fully exercise and assert their responsibilities
pertaining to the protection, conservation and development of ocean
resources under United States jurisdiction.
(7) Citizens of the Pacific states and the Province of British
Columbia are increasingly concerned with the environmental integrity of
the ocean and protection of all ocean resources.
(8) Recent studies conducted in the wake of major accidental
releases of oil or hazardous substances have concluded that the existing
system of response to spills could be improved in the following ways to
provide better protection of ocean resources:
(a) Enhanced personnel training and qualifications;
(b) Improved vessel design and integrity;
(c) Better mechanisms for cost recovery by the states or the
province;
(d) Improved coordination in regulatory oversight;
(e) Enhanced traffic management; and
(f) An improved information base dealing with marine and coastal
environments.
(9) A spill or discharge of oil or hazardous substance from an
ocean-going vessel has the potential of causing major regional impacts.
B. Therefore, the purposes of this compact shall be:
(1) To assist in the promotion of interstate commerce by
encouraging uniform regulation of the transportation of oil or hazardous
substance within the compact zone.
(2) To provide a legal mechanism to regulate certain ocean
activities within the United States Exclusive Economic Zone.
(3) To enhance regional coordination of issues of critical
importance.
(4) To work with federal agencies to advance the best interest of
the region.
(5) To foster regional cooperation and pooling of resources to
reduce costs and increase effective use of scarce resources.
(6) To monitor activities of concern to the parties.
(7) To address issues of mutual concern to the Pacific states and
the Province of British Columbia and enhance the parties’ influence over
activities of concern that are not now addressed through existing
compacts, including:
(a) Spill prevention;
(b) Transportation of oil and other hazardous substances;
(c) Spill response planning;
(d) Environmental monitoring and research; and
(e) Ocean resource management.
(8) To foster cooperation and coordination among the parties in
order to increase the effectiveness of the individual party’s ocean laws
and programs.
(9) To provide technical assistance to parties for ocean activities
covered by this compact.
(10) To provide for formal participation by the Province of British
Columbia with the compact to more fully address issues of regional
concern.
(11) To insure that the citizens of the region have opportunities
to participate in discussions and deliberations of regional ocean
resources issues.
(12) To establish an innovative system under which the parties can
represent their shared interests within the compact zone, including:
(a) The maintenance and protection of common ocean resources; and
(b) The vessel transportation of oil and other hazardous substances.
(13) To recommend uniform safety standards for routes, crews and
equipment for vessels transporting oil and hazardous substances within
the compact zone and monitor the implementation of these standards and
regulations by federal agencies, states or provinces and private industry.
(14) To promote more coordinated management of ocean resources that
are of mutual concern.
(15) To provide a forum for the regional coordination of the
individual parties’ plans for the management and protection of those
areas of the Pacific Ocean and adjacent waters over which the compacting
parties jointly or separately now have or may acquire jurisdiction.ARTICLE IIDefinitions
As used in this compact:
(1) “Compact” means the representative body created by Article IV
of this compact.
(2) “Compact zone” means the portion of the oceans bordering the
parties within the 200-mile exclusive economic zone.
(3) “Hazardous substance” or “hazardous substances” means any
element or compound that, when it enters in or upon the water, presents
an imminent and substantial danger to the public health or welfare or the
environment, including but not limited to fish, animals, vegetation or
any part of the natural habitat in which they are found. “Hazardous
substance” includes but is not limited to a substance designated under 33
U.S.C. §1321 (b)(2)(A), any element, compound, mixture, solution or
substance designated under 42 U.S.C. §9602, any hazardous waste having
characteristics identified under or listed under 42 U.S.C. §6921, any
toxic pollutant listed under 33 U.S.C. §1317 (a) and any imminently
hazardous chemical substance or mixture with respect to which the
Administrator of the United States Environmental Protection Agency has
taken action under 15 U.S.C. §2606.
(4) “Navigable waters” means the waters of the United States,
including the territorial sea.
(5) “Oil” means crude petroleum oil and any other hydrocarbons
regardless of gravity, which are produced at the well in liquid form by
ordinary production methods, and any petroleum products or petrochemicals
of any kind and in any form whether crude, refined or a petroleum
by-product, including petroleum, fuel oil, gasoline, lubricating oils,
oily sludge, oily refuse or mixed with other wastes, liquefied natural
gas or propane.
(6) “Party” means a state or province that ratifies this compact as
provided in Article III of this compact.
(7) “Representative” means an individual appointed as provided in
Article IV of this compact to represent a party to the compact.
(8) “Vessel” means a watercraft or other artificial contrivance
that is constructed or adapted to carry, or that carries oil or hazardous
substance in bulk as cargo or cargo residue, and that:
(a) Operates on the navigable waters of the compact zone; or
(b) Transfers oil or hazardous substance in a place subject to the
jurisdiction of the United States.ARTICLE IIIOperative Dates (1) Except as provided in paragraph (2) of this Article, this
compact shall become effective when two or more of the States of Alaska,
California, Hawaii or Washington ratify the compact and the consent of
Congress is or has been granted as required by section 10, Article I of
the Constitution of the United States.
(2) This agreement shall become operative as to the Province of
British Columbia as a full party upon request of the Province of British
Columbia and approval of the Congress.ARTICLE IVPacific Ocean Resources Compact (1) The Pacific Ocean Resources Compact is created and shall have
its offices within the territorial limits of one of the parties, shall
carry out its duties and functions in accordance with this compact, shall
continue in force and effect in accordance with this compact, and, except
as specifically provided in this compact, shall not be considered an
agency or instrumentality of the United States for the purpose of any
federal law. Each party participating in this compact shall appoint two
persons, subject to the applicable laws of the appointing party, to
undertake the functions and duties of representatives of the compact.
This compact shall be invested with the powers and duties set forth in
this compact.
(2) The term of each representative shall be four years. A
representative shall hold office until a successor is appointed and
qualified but the successor’s term shall expire four years from legal
date of expiration of the term of the predecessor. Vacancies occurring in
the office of a representative for any reason or cause shall be filled
for the unexpired term by the party represented by the vacancy. Any party
may remove the representative for that party in accordance with the
statutes of the party concerned. Each representative may delegate to a
deputy the power to be present and participate, including voting as the
representative or substitute, at any meeting of or hearing by or other
proceeding of the compact.
(3) The compact shall invite the Secretary of Transportation, the
Administrator of the United States Environmental Protection Agency and
the Administrator of the National Oceanic and Atmospheric Administration
or their designees to participate as nonvoting members of the compact.ARTICLE VPacific Ocean Resources Compact Authority (1) The Pacific Ocean Resources Compact is authorized to:
(a) Facilitate the prevention of oil and hazardous substance spills
by:
(A) Serving as a West Coast Spill Prevention Advisory Committee to
the United States Coast Guard. As such, the compact shall advise the
United States Coast Guard on matters pertaining to spill prevention
within the compact zone and also shall advise the United States Coast
Guard on other matters within the compact’s authority as set forth in
this compact.
(B) Participating as an interested person in any rulemaking
proceeding by the United States Coast Guard related to the establishment
of safety standards for routes, crews and equipment for vessels
transporting oil and hazardous substances. The United States Coast Guard
shall adopt the recommendations of the compact, unless the United States
Coast Guard makes a finding, as part of the rulemaking process, that the
adoption of such recommendations would not further the prevention of oil
and hazardous substance spills.
(C) As an interested person, requesting the United States Coast
Guard to initiate rulemaking for the establishment or amendment of safety
standards for routes, crews and equipment for vessels transporting oil
and hazardous substances. The United States Coast Guard shall initiate
rulemaking as requested by the compact, unless the United States Coast
Guard makes a finding that the initiation of such rulemaking would not
further the prevention of oil and hazardous substance spills.
(D) Making recommendations to other appropriate state, federal and
regional entities regarding uniform safety standards for routes, crews
and equipment for vessels transporting oil and hazardous substances in
the compact zone.
(b) Insure a coordinated network of oil and hazardous substance
spill response plans and programs of the parties, federal agencies and
private organizations.
(c) By regulation, establish the requirements for submission of and
approval by the compact of a contingency plan by any vessel transporting
oil or hazardous substance in the compact zone. Such requirements shall
be consistent with the requirements for response plans under section 4202
of the Oil Pollution Act of 1990 (P.L. 101-380). A plan developed in
accordance with the regulations adopted by the compact and approved by
the compact shall satisfy the requirements of section 4202 of the Oil
Pollution Act and shall supersede any requirements of an individual party
for submitting a vessel contingency or spill response plan. However, all
plans approved by parties to this compact before the operative date of
the compact shall remain in full force and effect until a contingency
plan is approved by the compact pursuant to this paragraph. In
establishing regulations under this paragraph, the compact shall work
closely with officials of the parties to assure that the vessel
contingency plans required under this compact include all subject areas
included by the member parties, in the standards for vessel contingency
plans of the parties, in aggregate, before the adoption of the compact.
(d) Establish and maintain an informational clearinghouse related
to spill response, including a directory of personnel, equipment,
technical expertise, organizations and other resources available to
assist as part of a regional oil or hazardous substance spill response.
(e) Provide a forum for discussion and recommendation to resolve
conflicts among member parties or the federal government regarding
various ocean resources programs that have been or may be established by
each party.
(f) Provide opportunities for public participation in compact
activities by holding meetings of the compact in various locations within
the territorial limits of the parties, providing opportunities for public
comment at meetings and developing a public outreach program.
(g) Designate state or provincial agency officials to act on behalf
of the compact as liaisons with federal agencies.
(h) Identify the regional data needs related to ocean resources and
recommend a method for compiling the data in a format that can be shared
by all parties.
(i) Consult with and advise any pertinent party or federal agency
with regard to problems connected with ocean resources management and
recommend the adoption of any rules or regulations the compact considers
advisable that are within the jurisdiction of the agency.
(j) Establish sanctions and a schedule of civil penalties for
violations of the rules or regulations of the compact and impose such
sanctions or civil penalties in accordance with 5 U.S.C. §§551 to 559 and
§§701 to 706.
(k) Request the United States Coast Guard to enforce or assist in
the enforcement of any regulations adopted by the compact including but
not limited to regulations related to the submission of a contingency
plan or financial assurance requirements in the compact zone.
(L) Establish a schedule of reasonable fees to be assessed for the
review of a contingency plan submitted under paragraph (c) of this
subsection. The fees shall be sufficient to recover the costs of
reviewing the plans and conducting any related inspections. The fees may
be assessed in increments up to the maximum amount.
(2) In addition to the authority granted under paragraph (1) of
this Article, the compact may:
(a) Accept grants and gifts.
(b) Enter into contracts for whose performance the compact shall be
solely responsible in order to support its operations.
(c) Conduct and prepare, independently or in cooperation with
others, studies, investigations, research and programs relating to the
purposes of this compact.
(d) Conduct public hearings on matters pertaining to the purposes
of this compact.
(e) Establish a standardized cost recovery formula for damages to
other resources based on the amount of oil or hazardous substance spilled.
(f) Enter into an agreement with the United States Coast Guard
under which the compact will administer compliance with the requirements
for demonstrating financial responsibility under section 1016 of the Oil
Pollution Act of 1990 in an amount established by the compact. Such proof
of financial responsibility, if established by the compact, shall satisfy
and supersede the requirement of any individual party for demonstrating
financial responsibility. However, all financial responsibility
requirements established by the parties to this compact before the
compact establishes an amount under this paragraph shall remain in full
force and effect until the compact establishes a requirement and enters
into an agreement with the United States Coast Guard under this
paragraph. In establishing the amount of financial responsibility under
this paragraph, the compact shall work with officials of each party to
assure that such requirements are sufficient to satisfy the requirements
of the parties, in aggregate.
(g) In accordance with the provisions of 5 U.S.C. §§551 to 559 and
§§701-706, enforce the rules and regulations adopted by the compact to
carry out the authority of the compact as set forth in this Article.
(h) Appoint technical and advisory committees for the purpose of
advising the compact on regional ocean resources issues, data needs and
format and other purposes related to the compact’s activities. A
technical or advisory committee appointed by the compact shall not be
subject to the provisions of the Federal Advisory Committee Act (P.L.
92-463, as amended).
(i) Allow a variance from the provisions of this compact or rules
or regulations adopted by the compact pursuant to this Article. A
variance shall be based on a showing by the person or entity seeking the
variance that the activity allowed under the variance will have no
regional impact and that the variance is economically necessary. Under no
circumstances may a variance result in the regulation of the
transportation of oil or hazardous substance according to standards less
stringent than standards imposed under federal law.
(3) The compact shall adopt all regulations necessary to carry out
its duties and exercise its authority under this Article. The compact
shall adopt such regulations in accordance with the provisions of 5
U.S.C. §§500 to 559.ARTICLE VIPacific Ocean Resources Compact
OrganizationThe compact shall select a chairperson and a vice chairperson.
After the initial chairperson and vice chairperson are selected, the
compact shall establish a rotation for the selection of the chairperson
and vice chairperson so the office rotates through the parties to the
compact. The compact shall appoint and at its pleasure remove or
discharge such officers and employees as may be required to carry the
provisions of this compact into effect and shall fix and determine their
duties, qualifications and compensation. The compact shall adopt rules
and regulations for the conduct of its business. It may establish and
maintain one or more offices for the transaction of its business and may
meet at any time or place within the territorial limits of the signatory
parties but must meet at least once a year.ARTICLE VIIVoting and Quorum (1) A majority of the representatives shall constitute a quorum.
(2) Each representative shall be entitled to one vote. No action or
decision of the compact shall be approved unless the action or decision
receives a majority of the votes of the representatives, including at
least one affirmative vote from each party.ARTICLE VIIISupport AgenciesThe compact may contract for the staff support necessary to carry
out the purposes of this compact or request appropriate agencies of the
signatory parties to act as the research agencies of the compact.ARTICLE IXParties’ Powers Under CompactExcept as specifically provided in Article V of this compact,
nothing in this compact shall be construed to limit the powers of any
party or to repeal or prevent the enactment of any legislation or the
enforcement of any requirement imposing additional conditions and
restrictions to conserve ocean resources.ARTICLE XAbsenceContinued absence of representation or of any compact
representative from any party shall be brought to the attention of the
appointing authority of the party not represented.ARTICLE XIFunding (1) Each party shall contribute to the support of the compact.
(2) The annual contribution of each party shall be figured to the
nearest $100.
(3) The compact shall prepare an annual budget which shall be
approved by vote of the compact. After approval, the proposed budget
shall be presented to the chief executive and legislative body of the
signatory parties.
(4) Each party shall be responsible for the expenses of its own
representatives.ARTICLE XIIWithdrawal from CompactThis compact shall continue in force and remain binding upon each
party until renounced by it. Renunciation of this compact must be
preceded by sending six months’ notice in writing of intention to
withdraw from the compact to the other parties to the compact.
___________________________________________________________________________
___ [1991 c.617 §2]Note: See note under 196.175. One member of the Senate
appointed by the President of the Senate and one member of the House of
Representatives appointed by the Speaker of the House of Representatives
shall act as the representatives of the State of Oregon on the Pacific
Ocean Resources Compact in accordance with the powers and duties set
forth in the compact. [1991 c.617 §3]Note: See note under 196.175.OREGON OCEAN RESOURCES MANAGEMENT As used in ORS
196.405 to 196.515, unless the context requires otherwise:
(1) “Council” means the council established in ORS 196.438.
(2) “Exclusive Economic Zone” has the meaning set forth in Proc.
5030 whereby the United States proclaimed jurisdiction over the resources
of the ocean within 200 miles of the coastline.
(3) “Panel” means a project review panel established under ORS
196.453.
(4) “Plan” means the Oregon Ocean Resources Management Plan.
(5) “Territorial sea” means the waters and seabed extending three
geographical miles seaward from the coastline in conformance with federal
law.
(6) “Territorial Sea Plan” means the plan for Oregon’s territorial
sea. [1987 c.576 §6; 1991 c.501 §2; 2003 c.744 §1] It is the policy of this state to:
(1) Work with the States of Washington and California to explore
the possibility of development of communication information systems
including a computerized system of coastal and marine resource
information.
(2) Work with the States of Washington and California to develop
compatible programs of ocean oil spill response, damage assessment and
compensation.
(3) Cooperate and coordinate with adjacent states to develop a
regional approach to obtaining fisheries information. [1989 c.895 §2;
2003 c.744 §2] (1) State agencies shall, to the
maximum extent practicable, coordinate development of coastal and ocean
information systems with those in adjacent states.
(2) State agencies with responsibility for oil spill and hazardous
material response, damage assessment and compensation in the marine
environment shall, to the maximum extent practicable, coordinate Oregon’s
plans, programs, policies and techniques with those of adjacent states.
(3) State agencies which have jurisdiction over water areas, the
seabed and resources adjacent to offshore rocks and islands may
coordinate with adjacent states and federal agencies to develop programs
and regulations to manage uses and activities of ocean areas adjacent to
coastal cliffs and offshore rocks and islands managed within the National
Wildlife Refuge System.
(4) The State Department of Fish and Wildlife may coordinate with
fishery managers in adjacent states to develop a uniform fish catch and
monitoring system. [1989 c.895 §3; 2003 c.744 §3] The
Legislative Assembly finds:
(1) Oregon’s territorial sea encompasses all the rocks and islands
of the Oregon National Wildlife Refuge, borders all beaches, headlands
and rocky intertidal areas and includes areas heavily used for commercial
and recreational fishing. Navigation lanes for barges and vessels pass
through the area.
(2) Oregon’s territorial sea is rich in marine life. Its renewable
resources support significant portions of the coastal economy. It is a
dynamic, hazardous marine environment within which oil spills cannot be
contained.
(3) Oregon’s nearshore zone is extremely high in biological
productivity, reflected by the variety and value of commercial and sport
ocean fisheries catch. The Oregon coast provides a significant habitat
for migrating seabirds and mammals. Oregon is unwilling to risk damaging
sensitive marine environments or to sacrifice environmental quality to
develop offshore oil and gas resources. [1989 c.895 §4] The
Legislative Assembly finds that:
(1) The Pacific Ocean and its many resources are of environmental,
economic, aesthetic, recreational, social and historic importance to the
people of this state.
(2) Exploration, development and production of ocean resources
likely to result from both federal agency programs in federal waters of
the outer continental shelf and initiatives of private companies within
state waters will increase the chance of conflicting demands on ocean
resources for food, energy and minerals, as well as waste disposal and
assimilation, and may jeopardize ocean resources and values of importance
to this state.
(3) The fluid, dynamic nature of the ocean and the migration of
many of its living resources beyond state boundaries extend the ocean
management interests of this state beyond the three geographic mile
territorial sea currently managed by the state pursuant to the federal
Submerged Lands Act.
(4) Existing federal laws, the Coastal Zone Management Act of 1972,
the Coastal Zone Act Reauthorization Amendments of 1990, the Magnuson
Fisheries Management and Conservation Act of 1976, as amended, and the
Outer Continental Shelf Lands Act of 1978, recognize the interests of
coastal states in management of ocean resources in federal waters and
provide for state participation in ocean resources management decisions.
The Coastal Zone Act Reauthorization Amendments of 1990 require that all
federal coastal activities affecting natural resources, land uses and
water uses in the coastal zone must be consistent with the federally
approved Oregon Coastal Management Program.
(5) The 1983 Proclamation of the 200-mile United States Exclusive
Economic Zone has created an opportunity for all coastal states to more
fully exercise and assert their responsibilities pertaining to the
protection, conservation and development of ocean resources under United
States jurisdiction.
(6) It is important that the State of Oregon develop and maintain a
program of ocean resources management to promote management of living and
nonliving marine resources within state jurisdiction, to insure effective
participation in federal agency planning and management of ocean
resources and uses which may affect this state, and to coordinate state
agency management of ocean resources with local government management of
coastal shorelands and resources.
(7) While much is known about the ocean, its composition,
characteristics and resources, additional study and research is required
to gain information and understanding necessary for sound ocean planning
and management. [1987 c.576 §3; 1991 c.501 §3; 2003 c.744 §4] It is the policy of the State of Oregon to:
(1) Conserve the long-term values, benefits and natural resources
of the ocean both within the state and beyond by giving clear priority to
the proper management and protection of renewable resources over
nonrenewable resources;
(2) Encourage ocean resources development which is environmentally
sound and economically beneficial to adjacent local governments and to
the state;
(3) Assert the interests of this state as a partner with federal
agencies in the sound management of the ocean resources within the United
States Exclusive Economic Zone and on the continental shelf;
(4) Encourage research, study and understanding of ocean processes,
marine life and other ocean resources;
(5) Encourage research and development of new, innovative marine
technologies to study and utilize ocean resources; and
(6) Ensure that the Ocean Policy Advisory Council will work closely
with coastal local governments to incorporate in its activities coastal
local government and resident concerns, coastal economic sustainability
and expertise of coastal residents. [1987 c.576 §4; 1991 c.501 §4; 2003
c.744 §5] To ensure the
conservation and development of ocean resources affecting Oregon
consistent with the purposes of ORS 196.405 to 196.515, a program of
ocean resource planning and management is established. This program shall
be known as the Oregon Ocean Resources Management Program and is part of
Oregon’s coastal management program. The Oregon Ocean Resources
Management Program consists of:
(1) Applicable elements of the Oregon Coastal Management Program
approved by the U.S. Secretary of Commerce on July 7, 1977, and as
subsequently amended pursuant to the Coastal Zone Management Act of 1972,
including statutes that apply to coastal and ocean resources, those
elements of local comprehensive plans of jurisdictions within Oregon’s
coastal zone as defined in the Oregon Coastal Management Program which
may be affected by activities or use of resources within the ocean, and
those statewide planning goals which relate to the conservation and
development of ocean and coastal resources;
(2) The Ocean Policy Advisory Council or its successor;
(3) Those portions of the Oregon Ocean Resources Management Plan
that are consistent with ORS 196.405 to 196.515; and
(4) The Territorial Sea Plan as reviewed by the council and
submitted to the agencies represented on the council. [1987 c.576 §5;
1991 c.501 §5; 2003 c.744 §6]
(1) The Department of Land Conservation and Development is designated the
primary agency for coordination of ocean resources planning. The
department is designated the State Coastal Management Agency for purposes
of carrying out and responding to the Coastal Zone Management Act of
1972. The department shall assist:
(a) The Governor with the Governor’s duties and opportunities to
respond to federal agency programs and activities affecting coastal and
ocean resources; and
(b) The Ocean Policy Advisory Council.
(2) The provisions of ORS 196.405 to 196.515 do not change
statutorily and constitutionally mandated responsibilities of other state
agencies.
(3) ORS 196.405 to 196.515 do not provide the Land Conservation and
Development Commission with authority to adopt specific regulation of
ocean resources or ocean uses. [1987 c.576 §7; 1989 c.325 §1; 1991 c.501
§21; 2003 c.744 §7](1) The Governor shall establish an Ocean Policy Advisory Council
that is staffed by the State Department of Fish and Wildlife, the
Department of Land Conservation and Development and other departments as
the Governor deems necessary. The council shall be composed of:
(a) The Governor or the Governor’s designee, as a nonvoting member;
(b) The director or the director’s designee of the following
agencies, as nonvoting members:
(A) Department of Environmental Quality;
(B) State Department of Fish and Wildlife;
(C) State Department of Geology and Mineral Industries;
(D) Department of Land Conservation and Development;
(E) Department of State Lands;
(F) Parks and Recreation Department;
(G) State Department of Agriculture; and
(H) On behalf of the State Board of Higher Education, the director
or director’s designee of Oregon State University, Sea Grant College;
(c) A member of the governing body of Coos, Curry, Douglas or Lane
County to be appointed by the Governor, chosen in consultation with and
with the approval of a majority of the members of the governing bodies of
Coos, Curry, Douglas and Lane Counties;
(d) A member of the governing body of Clatsop, Lincoln or Tillamook
County to be appointed by the Governor, chosen in consultation with and
with the approval of a majority of the members of the governing bodies of
Clatsop, Lincoln and Tillamook Counties;
(e) An elected city official from a coastal city bordering the
territorial sea to be appointed by the Governor with advice from an
Oregon coastal zone management association;
(f) A representative of each of the following ocean interests, to
be appointed by the Governor, and subject to confirmation by the Senate
pursuant to section 4, Article III, Oregon Constitution:
(A) Commercial ocean fisheries of the North Coast from Newport
north;
(B) Commercial ocean fisheries of the South Coast south of Newport;
(C) Charter, sport or recreation ocean fisheries of the North Coast
from Newport north;
(D) Charter, sport or recreation ocean fisheries of the South Coast
south of Newport;
(E) Ports marine navigation or transportation;
(F) Coastal nonfishing recreation interests of surfing, diving,
kayaking or windsurfing;
(G) A coastal conservation or environmental organization;
(H) Oregon Indian tribes appointed after consultation with the
Commission on Indian Services;
(I) A coastwide organization representing a majority of small ports
and local governments, as a nonvoting member; and
(J) A statewide conservation or environmental organization; and
(g) Two representatives of the public, at least one of whom shall
be a resident of a county bordering the territorial sea, to be appointed
by the Governor.
(2) The term of office of each member appointed by the Governor is
four years, but a member serves at the pleasure of the Governor. Before
the expiration of the term of a member, the Governor shall appoint a
successor whose term begins on July 1 next following. A member is
eligible for reappointment. If there is a vacancy for any cause, the
Governor shall make an appointment to become immediately effective for
the unexpired term.
(3) A majority of the voting members of the council constitutes a
quorum for the transaction of business.
(4) The voting members of the council shall elect a person from
among the membership to chair the council. [1991 c.501 §6; 2003 c.744 §8]Note: 196.438 to 196.448 were added to and made a part of 196.405
to 196.515 by legislative action but were not added to any smaller series
therein. See Preface to Oregon Revised Statutes for further explanation. (1) The purposes of the Ocean Policy
Advisory Council are to:
(a) Periodically review the Territorial Sea Plan and submit
recommendations for the plan to state agencies represented on the
council. The council shall recommend deletions to the Territorial Sea
Plan of all site designations and management prescriptions to the Land
Conservation and Development Commission.
(b) Advance the policies of ORS 196.420 to the federal government
and any multistate bodies.
(c) Provide a forum for discussing ocean resource policy, planning
and management issues and, when appropriate, mediating disagreements.
(d) Recommend amendments to the Oregon Ocean Resources Management
Plan as needed. If the recommended amendments to the plan incorporate the
establishment of a system of limited marine reserves or other protected
areas, the council also shall perform an economic analysis of short-term
and long-term effects that the establishment of such areas would have on
coastal communities. Any recommended amendments related to marine
reserves or marine protected areas shall be submitted to the State Fish
and Wildlife Commission for review and approval.
(e) Offer advice to the Governor, the State Land Board, state
agencies and local governments on specific ocean resources management
issues.
(f) Encourage participation of federal agencies in discussion and
resolution of ocean resources planning and management issues affecting
Oregon.
(2) The Ocean Policy Advisory Council may not, except to the extent
of fulfilling its advisory capacity under subsection (1)(e) of this
section, establish fishing seasons, harvest allocations, geographic
restrictions or other harvest restrictions. [1991 c.501 §8; 2003 c.744 §9]Note: See note under 196.438. (1) A member of the Ocean
Policy Advisory Council is entitled to compensation and expenses as
provided in ORS 292.495.
(2) The council shall meet at least once every six months at a
place, day and hour determined by the council. The council also shall
meet at other times and places specified by the call of the chair or of a
majority of the members of the council. [1991 c.501 §§9,10,11; 2003 c.744
§10]Note: See note under 196.438. (1) To aid and advise the
Ocean Policy Advisory Council in the performance of its functions, the
council shall establish a permanent scientific and technical advisory
committee chaired by the director of the Sea Grant College program or
other similarly qualified member of the Ocean Policy Advisory Council and
may establish additional committees as needed.
(2) Members of the advisory committees are not entitled to
compensation, but in the discretion of the council may be reimbursed from
funds available to council for actual and necessary travel and other
expenses incurred by them in the performance of their official duties,
subject to ORS 292.495. [1991 c.501 §12]Note: 196.451 and 196.453 were added to and made a part of 196.405
to 196.515 by legislative action but were not added to any smaller series
therein. See Preface to Oregon Revised Statutes for further explanation. (1) The Ocean Policy
Advisory Council may establish project review panels to address and
coordinate the interests of state, federal and local governments in
specific development proposals.
(2) The council may adopt guidelines to establish criteria to
create review panels and determine the scope of the activities of the
panel.
(3) A panel shall not have any authority independent of the
council. The authority of any panel shall be that granted to it by the
council. [1991 c.501 §16; 2003 c.744 §11]Note: See note under 196.451. To insure that the
Oregon Ocean Resources Management Plan and Territorial Sea Plan are
coordinated with federal agency programs for coastal and ocean resources,
the Ocean Policy Advisory Council may invite federal agencies with
responsibility for the study and management of ocean resources or
regulation of ocean activities to designate a liaison to the council to
attend council meetings, respond to council requests for technical and
policy information and review draft plan materials prepared by the
council. [1987 c.576 §10; 1991 c.501 §13; 2003 c.744 §12] (1) The
Oregon Ocean Resources Management Plan and Territorial Sea Plan, when
adopted pursuant to ORS 196.471, shall be compatible with acknowledged
comprehensive plans of adjacent coastal counties and cities.
(2) To insure that the plan is compatible with the comprehensive
plans of adjacent coastal counties and cities, the Ocean Policy Advisory
Council shall work with the Department of Land Conservation and
Development and any Oregon coastal zone management association to:
(a) Meet and consult with local government officials;
(b) Distribute draft materials and working papers for review and
solicit comment on council materials; and
(c) Provide technical and policy information to local governments
about ocean resource issues. [1987 c.576 §11; 1991 c.501 §14; 2003 c.744
§13] (1) The Land
Conservation and Development Commission shall review the Territorial Sea
Plan and any subsequent amendments recommended by the Ocean Policy
Advisory Council to either the Territorial Sea Plan or the Oregon Ocean
Resources Management Plan and make findings that the plan or amendments:
(a) Carry out the policies of ORS 196.405 to 196.515; and
(b) Are consistent with applicable statewide planning goals, with
emphasis on the four coastal goals.
(2) After making the findings required by subsection (1) of this
section, the commission shall adopt the Territorial Sea Plan or proposed
amendments as part of the Oregon Coastal Management Program.
(3) If the commission does not make the findings required by
subsection (1) of this section, the commission shall return the plan or
amendments to the council for revision. The commission may specify any
needed revisions.
(4) Upon adoption of the Territorial Sea Plan or subsequent
amendments the commission may, after consultation with affected state
agencies, identify amendments to agency ocean or coastal resource
management programs necessary to conform to the provisions of the adopted
plan. [1991 c.501 §20; 1993 c.18 §35]Note: 196.471 was added to and made a part of 196.405 to 196.515 by
legislative action but was not added to any smaller series therein. See
Preface to Oregon Revised Statutes for further explanation.(1) If a state agency incorporates the Oregon Ocean Resources
Management Plan and Territorial Sea Plan by reference in its coordination
program and, upon a finding by the Land Conservation and Development
Commission that the agency has amended its rules, procedures and
standards to conform with the objectives and requirements of the plan and
Territorial Sea Plan, the state agency shall satisfy the requirements of
state agency planning and coordination required by ORS 197.180 for ocean
planning.
(2) If a state agency does not incorporate the plan or Territorial
Sea Plan in its coordination program, the agency shall be subject to the
state agency coordination requirements of ORS chapters 195, 196 and 197
for state agency programs, procedures and standards that in any way
affect ocean resources.
(3) State agency programs or rules for management of ocean
resources or ocean uses shall be consistent with the Oregon Ocean
Resources Management Plan and the Territorial Sea Plan. [1987 c.576 §17;
1991 c.501 §17]ORS 196.405 to 196.485 shall be known as the
Oregon Ocean Resources Management Act. [1987 c.576 §2](1) The Department of Land Conservation and
Development is authorized to participate on behalf of the State of Oregon
with the States of Washington, California, Alaska and Hawaii in a joint
liaison program with the Center for Ocean Analysis and Prediction of the
National Oceanic and Atmospheric Administration.
(2) The objective of the program is to assist the states in taking
maximum advantage of the oceanographic data, products and services
available from the federal government through the Center for Ocean
Analysis and Prediction.
(3) The Department of Land Conservation and Development shall
integrate data obtained through the liaison program for use by other
state agencies and maximize the use of the State Service Center for
Geographic Information Systems. [1991 c.524 §§1,3]Note: 196.575 and 196.580 were enacted into law by the Legislative
Assembly but were not added to or made a part of ORS chapter 196 by
legislative action. See Preface to Oregon Revised Statutes for further
explanation. (1) The liaison program shall:
(a) Assist state and local governments to become fully aware of
oceanographic data and products available from the federal government and
in particular from the Center for Ocean Analysis and Prediction.
(b) Assist the Center for Ocean Analysis and Prediction and the
National Oceanic and Atmospheric Administration to become more fully
aware of state and local problems and the requirements of state and local
governments.
(c) Assist in setting up lines of communication to move
oceanographic data and products from the Center for Ocean Analysis and
Prediction to the people in the states who need those data and products.
(2) The liaison program also shall include workshops for small
groups of technical experts from state and local governments, academic
institutions and the private sector. The workshops shall be held at the
Center for Ocean Analysis and Prediction in Monterey, California, and at
other facilities in the western states as appropriate. [1991 c.524 §2]Note: See note under 196.575.WETLANDS(Definitions) 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 to compensate for the adverse effects of project
development or to resolve violations of ORS 196.800 to 196.905.
(2) “Credit” means the measure of the increase in wetland
functional attributes achieved at a mitigation bank site.
(3) “Mitigation bank” means a wetland site, created, restored or
enhanced in accordance with ORS 196.600 to 196.655 to compensate for
unavoidable adverse impacts 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 in order to compensate for the adverse
impacts to wetlands from project development.
(6) “On-site compensatory wetland mitigation” means activities
conducted at the project site to restore, create or enhance wetland
functional attributes in order to compensate for the adverse impacts to
wetlands 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. 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.). [Formerly 541.550; 1995 c.370 §2; 2003 c.738 §3](Wetlands Mitigation Banks)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;
(2) Improve cooperative efforts among private, nonprofit and public
entities for the management and protection of wetlands;
(3) Offset losses of wetland functional attributes caused by
activities which otherwise comply with state and federal law in order to
create, restore or enhance wetland functional attributes;
(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. [Formerly 541.555; 2003 c.738 §4]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 sensitive or unique wetlands habitat.
(3) Pay costs incurred for alterations needed to create, restore or
enhance wetland areas 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. [Formerly 541.557; 1993 c.18 §36; 2003 c.738 §5](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, including the estimated rate of
current and future losses of the respective types of wetlands.
(b) The contributions of the wetlands 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) 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. [Formerly
541.560; 1991 c.67 §48; 2003 c.738 §6](1) For
each mitigation bank, the Department of State Lands shall establish a
system of resource values and credits.
(2) A credit from a mitigation bank may be withdrawn for a
condition imposed on a permit in accordance with ORS 196.825 (5), for any
other authorization issued in accordance with ORS 196.800 to 196.905 or
to resolve a violation of ORS 196.800 to 196.905.
(3) Credits from a freshwater mitigation bank may be used only as
described in subsection (2) of this section for permits, authorizations
or resolutions of violations approved within the service area of the
mitigation bank, consistent with the mitigation bank instrument, unless
the Director of the Department of State Lands determines, in exceptional
circumstances, that it is environmentally preferable to exceed this
limitation.
(4) Credits from an estuarine mitigation bank may be used only as
described in subsection (2) of this section for permits, authorizations
or resolutions of violations approved within the same estuarine
ecological system.
(5) The director may not withdraw any credits from any mitigation
bank until the director has:
(a) Taken actions sufficient to establish hydrological function of
the mitigation bank site;
(b) Conducted other creation, restoration and enhancement actions
to establish other wetland functions and values at the mitigation bank
site; and
(c) Evaluated the results of the actions and determined that a high
probability exists that the wetland functions and values of the
mitigation bank site are equal to or greater than the functions and the
values of the wetland area to be damaged or destroyed.
(6) The price for any mitigation credit shall be set at an amount
that will compensate the state for all of the costs and expenses the
state has incurred, and is expected to incur in establishing and
maintaining that portion of the mitigation bank.
(7) The director shall not consider the availability or
nonavailability of mitigation bank credits in deciding whether to grant
or deny any removal or fill permit under ORS 196.600 to 196.905.
(8) The director annually shall:
(a) Evaluate the wetlands functions and values created within each
wetland mitigation bank site; and
(b) Compare the current functions and values with those that the
director anticipated that the mitigation bank would provide. If the
director finds any significant disparity between the actual and
anticipated functions and values, the director shall:
(A) Suspend the withdrawal of credits to that mitigation site; or
(B) Take prompt action to ensure that the anticipated functions and
values are established.
(9) The director may not withdraw credits from the mitigation bank
for a specific permit, authorization or resolution of a violation if the
director determines that:
(a) The credits for that specific permit, authorization or
resolution of a violation would not adequately maintain habitat or
species diversity; or
(b) The mitigation bank site for which credits are proposed to be
withdrawn is not sufficiently similar in wetland functions and values to
the wetland area to be damaged or destroyed. [Formerly 541.565; 1997
c.444 §3; 2003 c.738 §7; 2005 c.22 §135](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. [1997 c.444 §2]
(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.
[Formerly 541.567; 2003 c.738 §8] 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. [Formerly 541.570](1) The provisions of ORS 196.600 to 196.655 shall be
carried out by the Director of the Department of State Lands. The
Department of State Lands shall solicit, but not be bound by, comments
from the State Department of Fish and Wildlife, Department of
Transportation, Department of Land Conservation and Development,
Department of Environmental Quality, Economic and Community Development
Department, federal natural resources and regulatory agencies, affected
local governments and special districts, conservation organizations and
other interested parties. All comments shall be in writing and provided
to the Department of State Lands and mitigation bank sponsor within 30
days of solicitation by the Department of State Lands. If comments are
not received by the Department of State Lands from a state agency or from
an affected local government or special district within 30 days of
solicitation, the director shall assume that the state agency, local
government or special district does not desire to provide comments.
(2) In cooperation with the parties in subsection (1) of this
section, the director, in consultation with the State Land Board, shall:
(a) Review opportunities for inclusion of appropriate wetlands in
the Statewide Comprehensive Outdoor Recreation Plan.
(b) Develop and recommend a wetlands priority plan for inclusion in
the Statewide Comprehensive Outdoor Recreation Plan. The wetlands
priority plan shall be complementary to the purposes and programs under
ORS 196.600 to 196.655.
(3) The director shall confer with the Oregon Watershed Enhancement
Board to develop criteria to certify watershed enhancement projects as
mitigation banks. [Formerly 541.575; 1997 c.444 §4; 2003 c.738 §9](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. [Formerly 541.577; 2003 c.738 §10]A person who provides off-site compensatory
wetland mitigation in order to comply with a condition imposed on a
permit in accordance with ORS 196.825 (5), 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. [2003 c.738 §22] 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. [Formerly 541.580; 1999 c.59 §50;
2003 c.738 §11] 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 suitable for use in
mitigation banks.
(2) To pay for specific projects to create, restore or enhance
wetland areas for purposes of carrying out the provisions of ORS 196.600
to 196.905. Moneys deposited in the account for wetland impacts may be
used only for wetland creation, restoration and enhancement.
(3) For purchase of credits from approved mitigation banks.
(4) 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) 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) 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. [Formerly 541.585; 1993 c.18 §37; 2003 c.738 §12]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 activities and credits
sold, granted or otherwise disposed of or remaining in mitigation banks
established under ORS 196.600 to 196.655;
(3) 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. [Formerly 541.587; 2003 c.738 §13]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. [Formerly 541.590; 1999
c.59 §51]ORS 196.600 to 196.655 may be cited as the
“Oregon Wetlands Mitigation Bank Act of 1987.” [Formerly 541.595](Wetland Conservation Plans) The Legislative Assembly finds that:
(1) Wetlands provide a natural means of flood and storm damage
protection through the absorption and storage of water during high runoff
periods, thereby reducing flood crests and preventing loss of life and
property;
(2) Wetlands provide essential breeding, spawning, rearing,
feeding, nesting and wintering habitats for a major portion of this
state’s fish and wildlife;
(3) Wetlands provide essential habitat for waterfowl using the
Pacific Flyway and for the rearing of salmon and other anadromous and
resident fish;
(4) Wetlands act as accumulation areas for sediments which retain
nutrients and other pollutants that may prevent entry of the pollutants
into other waterways;
(5) Wetlands provide a valuable public service of maintaining clean
water by retaining nutrients, metals and toxic materials from the water
to protect water quality;
(6) Wetlands provide significant opportunities for environmental
and ecological research, public recreation and education and provide
scenic diversity and aesthetic value as open space and areas of visual
enjoyment;
(7) Much of this state’s original wetlands have been diked,
drained, filled, dredged, ditched or otherwise altered;
(8) There is continuing development pressure on wetlands in Oregon;
(9) There are often conflicts between wetland protection and other
resource values and uses;
(10) Uncoordinated regulation of wetlands by local, state and
federal agencies can cause confusion, frustration and unreasonable delay
and uncertainty for the general public; and
(11) Wetland management is a matter of this state’s concern since
benefits and impacts related to wetland resources can be international,
national, regional and statewide in scope. [1989 c.837 §2]In addition to the policy described in ORS 196.805,
it is the policy of the State of Oregon to:
(1) Promote the protection, conservation and best use of wetland
resources, their functions and values through the integration and close
coordination of statewide planning goals, local comprehensive plans and
state and federal regulatory programs.
(2) Use a single definition of “wetlands” for the purposes of ORS
196.800 to 196.905 and statewide planning goals and a single, uniform
methodology of delineating wetland boundaries.
(3) Develop a statewide inventory of wetlands based on uniform
identification standards and criteria at a scale practicable for planning
and regulatory purposes, and to make such inventory available to state
agencies and local governments to facilitate better management of wetland
resources and closer coordination of local, state and federal wetland
programs.
(4) Maintain a stable resource base of wetlands through the
mitigation of losses of wetland resources and the adoption of the
procedural mitigation standard currently used by federal agencies.
(5) Establish the opportunity to increase wetland resources by
encouraging wetland restoration and creation where appropriate.
(6) Reduce the delays and uncertainty which can occur in the
current wetland planning and regulatory framework through improved
coordination of the provisions in ORS 196.800 to 196.905 with local land
use planning and regulation and by providing mechanisms for expedited
permit review consistent with the protection and conservation of wetland
resources.
(7) Continue to meet the requirements of federal law in the
protection and management of wetland resources, while asserting the
interests of this state, in concert with those of local governments in
urging the federal resource and regulatory agencies to develop a uniform
wetland policy and more consistent, cohesive standards to implement the
Federal Water Pollution Control Act (33 U.S.C. 1344).
(8) Develop and provide information to the general public
concerning the functions, values and distribution of wetlands of this
state to raise public awareness of these resources.
(9) Promote the protection of wetland values on private lands by
developing and using public recognition programs, incentives and other
nonregulatory actions.
(10) Encourage wetlands as an interim use of mining and
construction sites on lands that were not originally wetlands and are
designated for other than wetland purposes in an acknowledged
comprehensive plan, while insuring that interim wetland use does not
limit the future use of such sites for mining and construction. [1989
c.837 §3] (1) The Department of
State Lands shall compile and maintain a comprehensive Statewide Wetlands
Inventory.
(2) In compiling the Statewide Wetlands Inventory, the department
shall develop, by rule, a system for uniform wetland identification,
delineation and comprehensive mapping. Initial inventories shall be based
upon the National Wetlands Inventory prepared by the United States
Department of the Interior, Fish and Wildlife Service. The Department of
State Lands shall consult with the public, local governments and affected
state and federal agencies concerning the accuracy of the inventory.
(3) The Department of State Lands shall revise the inventory maps
as new or more complete information becomes available.
(4) The Department of State Lands shall provide each city and
county planning office with copies of the Statewide Wetlands Inventory
covering the local jurisdiction.
(5) The Department of State Lands shall provide each state agency
with a copy of the inventory upon request.
(6) Copies of the Statewide Wetlands Inventory shall be made
available to the general public, through the Department of State Lands,
upon payment of a fee to offset administrative and reproduction costs.
(7) A wetland inventory developed by another party may be utilized
by the Department of State Lands if it is consistent with standards
adopted pursuant to this section, after consulting with the affected
local government, and is reviewed and approved by the Department of State
Lands as complying with the standards adopted pursuant to subsection (2)
of this section.
(8) Nothing in this section shall restrict the regulatory
jurisdiction of the Department of State Lands under ORS 196.800 to
196.905.
(9) In compiling and updating the Statewide Wetlands Inventory, the
Department of State Lands shall identify opportunities for wetland
creation, restoration and enhancement when the information is available.
[1989 c.837 §6; 2003 c.253 §6] The Department
of State Lands shall respond to the notice received from local
governments pursuant to ORS 215.418 (1) and 227.350 (1) within 30 days of
receipt of the notice. The response shall state whether a permit is or in
the future will be required or whether a permit has been issued by the
department for the activity which is subject to notice. [1989 c.837 §7](1) Any city or county may develop and submit to the Department
of State Lands a wetland conservation plan for review pursuant to the
provisions of ORS 196.678 to 196.684.
(2) A wetland conservation plan shall include the following
elements:
(a) A description and maps of the area to be covered by the plan;
(b) A detailed inventory of the wetlands, identifying the location,
quality and quantity of the wetland resource and the source of the water
for the wetlands within the area covered by the plan;
(c) An assessment of wetland functions and values, including an
historical analysis of wetland degradation, alterations and losses;
(d) Designation of wetland areas for protection, conservation or
development. Wetlands within areas designated for development shall be
delineated to determine regulatory boundaries;
(e) A mitigation plan, including a program for replacement of
planned wetland losses and restoration of lost functions and values
through creation of new wetlands or enhancement of existing wetland areas
which designates specific sites within the plan area and actions for
restoration and enhancement;
(f) Policies and implementing measures establishing protection,
conservation and best use of the wetlands in the plan area;
(g) Specification of sites for fill or removal, or both, and the
conditions and procedures under which fill or removal, or both, may occur;
(h) Monitoring provisions that insure the wetland mitigation
measures are implemented and mitigation goals are achieved;
(i) Identification of public uses of the wetlands and waters and
conflicting planned uses; and
(j) Specification of buffer areas and uses allowed on lands which
are adjacent to wetlands and which are necessary to maintain, protect or
restore wetland functions and values.
(3) The proposed wetland conservation plan shall be adopted by the
affected local government according to the procedures set forth in ORS
197.610 to 197.625. [1989 c.837 §10](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. [1989 c.837 §11; 1999
c.59 §52](1) Except where otherwise provided by the order
approving the plan, individual permit applications shall be required for
removal or fill, or both, in areas subject to an approved wetland
conservation plan. If individual permit applications are to be reviewed
under the authority of the Director of the Department of State Lands,
then application fees and review procedures shall be in accordance with
ORS 196.815, 196.825 (5) and (6) and 196.835. In lieu of the substantive
standards for permit issuance in ORS 196.815 (1) and 196.825 (1), (2) and
(3), the Department of State Lands shall issue a permit if the removal or
fill, or both, is consistent with the wetland conservation plan or can be
conditioned to be consistent with the plan. The department shall
condition any such permit as necessary to insure that the project:
(a) Is properly designed or configured to minimize the need for
alterations to waters of the state;
(b) Is the minimum size necessary to reasonably provide for the
proposed use;
(c) Complies with applicable provisions of the acknowledged
comprehensive plan and land use regulations for the area;
(d) Is designed to minimize impacts from implementing the project;
and
(e) Is conditioned to insure wetland creation, restoration or
enhancement measures are implemented to fully replace impacted resources.
(2) In any order approving a plan which authorizes any fill or
removal or both, without the necessity of subsequently obtaining an
individual permit, the director shall condition such approval as
necessary to insure 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. [1989 c.837 §12](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. [1989 c.837 §13](1) For the purposes of this section, an
acknowledged estuary management plan includes the comprehensive plan and
land use regulations adopted by cities and counties to satisfy the
requirement of statewide planning goals related to estuarine resources
including shoreland portions of estuarine sites designated for
development as those plans and regulations existed on January 1, 1989.
(2) Any city or county may submit an acknowledged estuary
management plan for review and approval by the Department of State Lands
pursuant to the provisions of this section. The plan shall be submitted
with a written request for review.
(3) To allow timely and effective review of acknowledged estuary
management plans, the department may limit acceptance for review to two
plans but not more than one plan for a deep draft development estuary at
any one time.
(4) With the consent of the city or county submitting an estuary
management plan for review and approval, the department may extend any or
all of the deadlines set forth in this section.
(5) Acknowledged estuary management plans shall be presumed to
comply with requirements for approval of wetland conservation plans
specified in ORS 196.681.
(6) Within 10 days of acceptance of a request for review, the
department shall provide notice to affected state agencies, local
governments, federal agencies and the public of receipt of the
acknowledged estuary management plan and of the request for review and
approval of the acknowledged estuary management plan as a wetland
conservation plan.
(7) Within 30 days of acceptance of a request for review and upon
provision of at least two weeks’ notice, the department shall hold a
public informational hearing on the proposed approval of the acknowledged
estuary management plan as a wetland conservation plan.
(8) Within 60 days of acceptance of the request for review, the
department shall conduct a preliminary review of the acknowledged estuary
management plan. The department shall consult with the affected local
government prior to finalizing the preliminary review.
(9) Except as provided in subsection (10) of this section, the
Director of the Department of State Lands shall approve the acknowledged
estuary management plan by order within 60 days of completion of the
preliminary review.
(10) A contested case hearing shall be held within 30 days of the
completion of the preliminary review or receipt of a request for hearing
if:
(a) The director determines there is probable cause to believe that
the estuary management plan does not meet the standards for approving
wetland conservation plans or unreasonably interferes with the use of the
estuary for navigation, fisheries or public recreation; or
(b) A hearing is requested and the request:
(A) Is made in writing within 60 days of the date of mailing of
notice of completion of review;
(B) Clearly states the reasons for requesting the hearing; and
(C) Provides sufficient information for the director to determine
that there is probable cause to believe that the estuary management plan
does not meet the standards for approving wetland conservation plans or
unreasonably interferes with the use of the estuary for navigation,
fisheries or public recreation.
(11) The director shall approve the acknowledged estuary management
plan as a wetland conservation plan by order unless the director finds by
a preponderance of the evidence that the estuary management plan does not
meet the standards for approving wetland conservation plans or
unreasonably interferes with the use of the estuary for navigation,
fisheries or public recreation or that substantial fills proposed in an
estuary management plan for nonwater dependent use are not for a public
use and would not satisfy a public need that outweighs harm to
navigation, fisheries or public recreation.
(12) The director shall prepare a proposed order for review by the
parties within 30 days of any contested case hearing held pursuant to
subsection (10) of this section.
(13) A final order from the director that recommends, pursuant to
subsection (8) of this section, denial of an estuary management plan as a
wetland conservation plan shall identify deficient elements and
provisions of the acknowledged estuary management plan and what measures
may be taken to correct those deficiencies.
(14) Individual permit applications shall be required for removal
or fill, or both, in areas subject to an approved estuary management
plan. Individual permit applications shall be reviewed in accordance with
ORS 196.815, 196.825 (5) and (6), 196.830 and 196.835. In lieu of the
substantive standards for permit issuance in ORS 196.815 (1) and 196.825
(1), (2) and (3), the department shall issue a permit if the removal or
fill, or both, is determined by the director to be consistent with the
estuary management plan or can be conditioned to be consistent with the
plan. The department shall condition any such permit as necessary to
insure that the project:
(a) Is designed or configured to minimize alterations to waters of
the 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. [1989 c.837 §14](1) Notwithstanding the provisions of ORS 196.600 to 196.905,
state or local governments shall not prohibit or restrict the alteration
or fill of wetland areas up to one acre in size that have been
artificially created from upland for the purpose of controlling, storing
or maintaining storm water.
(2) An area that was developed as a storm water detention or
retention facility as a condition of a development approval shall not be
altered or filled without acceptance by the approving authority of a plan
to mitigate the loss of functional capabilities of the detention or
retention facility.
(3) Until a local government adopts an ordinance to conform its
comprehensive plan and land use regulations to the provisions of this
section, the provisions of subsection (1) of this section shall apply
directly to proposed activities in wetland areas. Any portion of a goal,
rule, comprehensive plan, land use regulation or ordinance not in
conformance with the provisions of this section on September 9, 1995:
(a) Shall not be implemented or enforced; and
(b) Has no legal effect.
(4) The provisions of this section do not apply to land used to
mitigate the loss of wetlands.
(5) If the Department of State Lands assumes responsibility under
33 U.S.C. §1344(g) of the Federal Water Pollution Control Act, ORS
196.600 to 196.905 shall apply to artificially created wetlands described
in subsections (1) and (2) of this section. [1995 c.482 §1]Note: 196.687 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 196 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation. (1) The Department of State
Lands shall develop a public information program to educate permit
applicants and the general public about:
(a) Wetland functions and values.
(b) The status and trends of Oregon’s wetlands.
(c) The Statewide Wetlands Inventory.
(d) Wetland regulation.
(2) Upon request, the department shall, within the limits of
staffing ability, provide technical assistance to other state agencies
and local governments and the public in identifying and delineating the
boundaries of wetlands. [1989 c.837 §20] (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,
196.825, 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. [1989 c.837 §32; 2001 c.460 §1]REMOVAL OF MATERIAL; FILLINGNote: Section 2, chapter 45, Oregon Laws 1989, provides:
Sec. 2. Provision relating to fills depending on E.P.A. approval.
(1) Notwithstanding any other provision of ORS 541.605 to 541.685
:
, “fill” means the deposit by artificial means of
material in any waters of this state.
(b) In the manner provided by ORS 541.640 [196.850], the director
may provide a general exception from the application of ORS 541.605 to
for fills that involve
less than 50 cubic yards of material and will not result in substantial
harm to the water resources of this state.
(2) This section does not become operative until the federal
Environmental Protection Agency grants authority to the Department of
State Lands to administer permits for the discharge of dredged or fill
material under Section 404 of the Federal Water Pollution Control Act
(P.L. 92-500, as amended). [1989 c.45 §2]Note: See second note under 196.800.(1) The Department of State Lands shall
continue to pursue methods to streamline the process for administering
permits for the removal of material from the bed or banks of any waters
of this state or for filling the waters of this state, reducing
paperwork, eliminating duplication, increasing certainty and timeliness
and enhancing resource protection. The efforts of the Department of State
Lands shall include but need not be limited to applying to the United
States Army Corps of Engineers for a state program general permit as
authorized in federal regulations implementing section 404 of the Federal
Water Pollution Control Act, and section 10 of the Rivers and Harbors Act
of 1899, as amended. In conjunction with these activities, the Department
of State Lands may continue to investigate the possibility of assuming
the federal regulatory program under 33 U.S.C. 1344(g) of the Federal
Water Pollution Control Act.
(2) The department shall report periodically to the Joint
Legislative Committee on Land Use on the progress in implementing
subsection (1) of this section. [1995 c.474 §1; 1997 c.116 §1; 1999 c.59
§53]Note: 196.795 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 196 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation. As used in ORS
196.600 to 196.905, unless the context requires otherwise:
(1) “Channel relocation” means a change in location of a channel in
which a new channel is dug and the flow is diverted from the old channel
into the new channel if more than 50 cubic yards of material is removed
in constructing the new channel or if it would require more than 50 cubic
yards of material to completely fill the old channel.
(2) “Department” means the Department of State Lands.
(3) “Director” means the Director of the Department of State Lands.
(4) “Estuary” means a body of water semienclosed by land and
connected with the open ocean within which salt water is usually diluted
by fresh water derived from the land. “Estuary” includes all estuarine
waters, tidelands, tidal marshes and submerged lands extending upstream
to the head of tidewater. However, the Columbia River Estuary extends to
the western edge of Puget Island.
(5) “Fill” means the total of deposits by artificial means equal to
or exceeding 50 cubic yards or more of material at one location in any
waters of this state.
(6) “General authorization” means a rule adopted by the director
authorizing, without a permit from the department, a category of
activities involving removal or fill, or both, on a statewide or other
geographic basis.
(7) “Governmental body” includes the federal government when
operating in any capacity other than navigational servitude, the State of
Oregon and every political subdivision therein.
(8) “Intermittent stream” means any stream which flows during a
portion of every year and which provides spawning, rearing or
food-producing areas for food and game fish.
(9) “Material” means rock, gravel, sand, silt and other inorganic
substances removed from waters of this state and any materials, organic
or inorganic, used to fill waters of this state.
(10) “Mitigation” means the reduction of adverse effects of a
proposed project by considering, in the following order:
(a) Avoiding the impact altogether by not taking a certain action
or parts of an action;
(b) Minimizing impacts by limiting the degree or magnitude of the
action and its implementation;
(c) Rectifying the impact by repairing, rehabilitating or restoring
the affected environment;
(d) Reducing or eliminating the impact over time by preservation
and maintenance operations during the life of the action by monitoring
and taking appropriate corrective measures; and
(e) Compensating for the impact by replacing or providing
comparable substitute wetland or water resources.
(11) “Practicable” means capable of being accomplished after taking
into consideration the cost, existing technology and logistics with
respect to the overall project purpose.
(12) “Public use” means a publicly owned project or a privately
owned project that is available for use by the public.
(13) “Removal” means 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 the movement by artificial means of an equivalent
amount of material on or within the bed of such waters, including channel
relocation.
(14) “Water resources” includes not only water itself but also
aquatic life and habitats therein and all other natural resources in and
under the waters of this state.
(15) “Waters of this state” means natural waterways including all
tidal and nontidal bays, intermittent streams, constantly flowing
streams, lakes, wetlands and other bodies of water in this state,
navigable and nonnavigable, including that portion of the Pacific Ocean
which is in the boundaries of this state. “Waters of this state” does not
include the ocean shore, as defined in ORS 390.605, with the exception of
those areas where removal or fill activities are regulated under a
state-assumed permit program as provided in 33 U.S.C. 1344(g) of the
Federal Water Pollution Control Act, as amended.
(16) “Wetland conservation plan” means a written plan providing for
wetland management containing a detailed and comprehensive statement of
policies, standards and criteria to guide public and private uses and
protection of wetlands, waters and related adjacent uplands and which has
specific implementing measures and which apply to designated geographic
areas of the State of Oregon.
(17) “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.
[Formerly 541.605 and then 196.670; 1999 c.373 §1; 2003 c.253 §7; 2003
c.738 §14]Note: Operation of the amendments to 196.800 by section 1, chapter
516, Oregon Laws 2001, is dependent upon further approval by the
Legislative Assembly. See section 11, chapter 516, Oregon Laws 2001. The
text that is operative after that approval, including amendments by
section 8, chapter 253, Oregon Laws 2003, and section 15, chapter 738,
Oregon Laws 2003, is set forth for the user’s convenience.
196.800. As used in ORS 196.600 to 196.905, unless the context
requires otherwise:
(1) “Channel relocation” means a change in location of a channel in
which a new channel is dug and the flow is diverted from the old channel
into the new channel.
(2) “Department” means the Department of State Lands.
(3) “Director” means the Director of the Department of State Lands.
(4) “Estuary” means a body of water semienclosed by land and
connected with the open ocean within which salt water is usually diluted
by fresh water derived from the land. “Estuary” includes all estuarine
waters, tidelands, tidal marshes and submerged lands extending upstream
to the head of tidewater. However, the Columbia River Estuary extends to
the western edge of Puget Island.
(5) “Fill” means the deposit by artificial means of material at one
location in any waters of this state.
(6) “General authorization” means a rule adopted by the director
authorizing, without a permit from the department, a category of
activities involving removal or fill, or both, on a statewide or other
geographic basis.
(7) “Governmental body” includes the federal government when
operating in any capacity other than navigational servitude, the State of
Oregon and every political subdivision therein.
(8) “Intermittent stream” means any stream which flows during a
portion of every year and which provides spawning, rearing or
food-producing areas for food and game fish.
(9) “Material” means rock, gravel, sand, silt and other inorganic
substances removed from waters of this state and any materials, organic
or inorganic, used to fill waters of this state.
(10) “Mitigation” means the reduction of adverse effects of a
proposed project by considering, in the following order:
(a) Avoiding the impact altogether by not taking a certain action
or parts of an action;
(b) Minimizing impacts by limiting the degree or magnitude of the
action and its implementation;
(c) Rectifying the impact by repairing, rehabilitating or restoring
the affected environment;
(d) Reducing or eliminating the impact over time by preservation
and maintenance operations during the life of the action by monitoring
and taking appropriate corrective measures; and
(e) Compensating for the impact by replacing or providing
comparable substitute wetland or water resources.
(11) “Practicable” means capable of being accomplished after taking
into consideration the cost, existing technology and logistics with
respect to the overall project purpose.
(12) “Public use” means a publicly owned project or a privately
owned project that is available for use by the public.
(13) “Removal” means the taking of material in any waters of this
state or the movement by artificial means of material within the bed of
such waters, including channel relocation.
(14) “Water resources” includes not only water itself but also
aquatic life and habitats therein and all other natural resources in and
under the waters of this state.
(15) “Waters of this state” means natural waterways including all
tidal and nontidal bays, intermittent streams, constantly flowing
streams, lakes, wetlands and other bodies of water in this state,
navigable and nonnavigable, including that portion of the Pacific Ocean
which is in the boundaries of this state. “Waters of this state” does not
include the ocean shore, as defined in ORS 390.605, with the exception of
those areas where removal or fill activities are regulated under a
state-assumed permit program as provided in 33 U.S.C. 1344(g) of the
Federal Water Pollution Control Act, as amended.
(16) “Wetland conservation plan” means a written plan providing for
wetland management containing a detailed and comprehensive statement of
policies, standards and criteria to guide public and private uses and
protection of wetlands, waters and related adjacent uplands and which has
specific implementing measures and which apply to designated geographic
areas of the State of Oregon.
(17) “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.Note: Sections 11 to 14, chapter 516, Oregon Laws 2001, provide:
Sec. 11. The amendments to ORS 196.800, 196.810, 196.825, 196.850,
196.895, 196.905, 196.990, 390.835, 421.628 and 459.047 by sections 1 to
10 of this 2001 Act and the repeal of section 2, chapter 45, Oregon Laws
1989, by section 13 of this 2001 Act become operative on January 2 of the
even-numbered year following the date the United States Environmental
Protection Agency grants authority by letter to the Department of State
Lands to administer permits for the discharge of dredge or fill materials
under section 404 of the Federal Water Pollution Control Act (P.L.
92-500, as amended) and the Legislative Assembly approves the grant of
authority. [2001 c.516 §11]
Sec. 12. (1) The Department of State Lands may take any action
necessary to prepare to fully implement the provisions of this 2001 Act
prior to the operative date of this 2001 Act.
(2) The department shall periodically report to the appropriate
committee of the Legislative Assembly on the status of its effort to
assume authority to administer permits for the discharge of dredge or
fill materials under section 404 of the Federal Water Pollution Control
Act (P.L. 92-500, as amended).
(3) After the Legislative Assembly approves the grant of authority,
the department shall notify the Legislative Assembly prior to the
transfer of authority from the United States Environmental Protection
Agency. [2001 c.516 §12]
Sec. 13. Section 2, chapter 45, Oregon Laws 1989, is repealed.
Sec. 14. If, after assuming authority to administer permits for the
discharge of dredge or fill materials under section 404 of the Federal
Water Pollution Control Act (P.L. 92-500, as amended), the Department of
State Lands seeks to relinquish the authority granted to the department
by the federal government, the department shall, in compliance with ORS
171.130 and at least two years prior to the anticipated date for
relinquishing the authority, submit to the Legislative Assembly a
proposed legislative measure designed to implement a state permitting
program for the dredging and filling of materials in the waters of this
state. [2001 c.516 §14] (1) The protection, conservation and best use of
the water resources of this state are matters of the utmost public
concern. Streams, lakes, bays, estuaries and other bodies of water in
this state, including not only water and materials for domestic,
agricultural and industrial use but also habitats and spawning areas for
fish, avenues for transportation and sites for commerce and public
recreation, are vital to the economy and well-being of this state and its
people. Unregulated removal of material from the beds and banks of the
waters of this state may create hazards to the health, safety and welfare
of the people of this state. Unregulated filling in the waters of this
state for any purpose, may result in interfering with or injuring public
navigation, fishery and recreational uses of the waters. In order to
provide for the best possible use of the water resources of this state,
it is desirable to centralize authority in the Director of the Department
of State Lands, and implement control of the removal of material from the
beds and banks or filling of the waters of this state.
(2) The director shall take into consideration all beneficial uses
of water including streambank protection when administering fill and
removal statutes.
(3) There shall be no condemnation, inverse condemnation, other
taking, or confiscating of property under ORS 196.600 to 196.905 without
due process of law.
(4) The director shall delineate wetlands in accordance with the
United States Army Corps of Engineers Wetlands Delineation Manual of
1987, or subsequent federal manual as adopted by rule by the director,
and applicable guidance issued by the United States Army Corps of
Engineers for the area in which the wetlands are located.
(5) The Department of State Lands shall give priority to the review
of wetland delineation reports submitted with or in advance of an
application for fill or removal of material from the waters of this
state. [Formerly 541.610 and then 196.675; 2003 c.738 §16](1)(a) Except as otherwise
specifically permitted under ORS 196.600 to 196.905, no person or
governmental body may remove any material from the beds or banks or fill
any waters of this state without a permit issued under authority of the
Director of the Department of State Lands, or in a manner contrary to the
conditions set out in the permit, or in a manner contrary to the
conditions set out in an order approving a wetlands conservation plan.
(b) Notwithstanding the permit requirements of this section and
notwithstanding the provisions of ORS 196.800 (5) and (13), if any
removal or fill activity is proposed in essential indigenous anadromous
salmonid habitat, except for those activities customarily associated with
agriculture, a permit is required. “Essential indigenous anadromous
salmonid habitat” as defined under this section shall be further defined
and designated by rule by the Department of State Lands in consultation
with the State Department of Fish and Wildlife and in consultation with
other affected parties.
(c) No person may be required to obtain a permit under paragraph
(b) of this subsection for prospecting or other nonmotorized activities
resulting in the removal from or fill of less than one cubic yard of
material at any one individual site and, cumulatively, not more than five
cubic yards of material within a designated essential indigenous
anadromous salmonid habitat segment in a single year. Prospecting or
other nonmotorized activities may be conducted only within the bed or wet
perimeter of the waterway and may not occur at any site where fish eggs
are present. Removal or filling activities customarily associated with
mining require a permit under paragraph (b) of this subsection.
(d) No permit may be required under paragraph (b) of this
subsection for construction or maintenance of fish passage and fish
screening structures that are constructed, operated or maintained under
ORS 498.311, 498.316, 498.326 or 509.600 to 509.645.
(e) Nothing in this section limits or otherwise changes the
exemptions under ORS 196.905.
(f) As used in paragraphs (b) and (c) of this subsection:
(A) “Bed” means the land within the wet perimeter and any adjacent
nonvegetated dry gravel bar.
(B) “Essential indigenous anadromous salmonid habitat” means the
habitat that is necessary to prevent the depletion of indigenous
anadromous salmonid species during their life history stages of spawning
and rearing.
(C) “Indigenous anadromous salmonid” means chum, sockeye, Chinook
and Coho salmon, and steelhead and cutthroat trout, that are members of
the family Salmonidae and are listed as sensitive, threatened or
endangered by a state or federal authority.
(D) “Prospecting” means searching or exploring for samples of gold,
silver or other precious minerals, using nonmotorized methods, from among
small quantities of aggregate.
(E) “Wet perimeter” means the area of the stream that is under
water or is exposed as a nonvegetated dry gravel bar island surrounded on
all sides by actively moving water at the time the activity occurs.
(2) No governmental body may issue a lease or permit contrary or in
opposition to the conditions set out in the permit issued under ORS
196.600 to 196.905.
(3) Subsection (1) of this section does not apply to removal of
material under a contract, permit or lease with any governmental body
entered into before September 13, 1967. However, no such contract, permit
or lease may be renewed or extended on or after September 13, 1967,
unless the person removing the material has obtained a permit under ORS
196.600 to 196.905.
(4) Notwithstanding subsection (1) of this section, the Department
of State Lands may issue, orally or in writing, an emergency
authorization for the removal of material from the beds or banks or
filling of any waters of this state in an emergency, for the purpose of
making repairs or for the purpose of preventing irreparable harm, injury
or damage to persons or property. The emergency authorization issued
under this subsection:
(a) Shall contain conditions of operation that the department
determines are necessary to minimize impacts to water resources or
adjoining properties.
(b) Shall be based, whenever practicable, on the recommendations
contained in an on-site evaluation by an employee or representative of
the department.
(c) If issued orally, shall be confirmed in writing by the
department within five days. [Formerly 541.615 and then 196.680; 1993
c.765 §101; 1997 c.190 §1; 1997 c.508 §1; 2001 c.65 §1; 2001 c.923 §4;
2003 c.14 §96; 2003 c.738 §20]Note: Operation of the amendments to 196.810 by section 2, chapter
516, Oregon Laws 2001, is dependent upon further approval by the
Legislative Assembly. See section 11, chapter 516, Oregon Laws 2001. The
text that is operative after that approval, including amendments by
section 97, chapter 14, Oregon Laws 2003, is set forth for the user’s
convenience.
196.810. (1)(a) Except as otherwise specifically permitted under
ORS 196.600 to 196.905, a person or governmental body may not remove any
material from the beds or banks or fill any waters of this state without
a permit issued under authority of the Director of the Department of
State Lands, or in a manner contrary to the conditions set out in the
permit, or in a manner contrary to the conditions set out in an order
approving a wetlands conservation plan.
(b) A permit is not required under paragraph (a) of this subsection
for prospecting or other nonmotorized activities resulting in the removal
from or fill of less than one cubic yard of material at any one
individual site and, cumulatively, not more than five cubic yards of
material within a particular stream segment in a single year. Prospecting
or other nonmotorized activities may be conducted only within the bed or
wet perimeter of the waterway and may not occur at any site where fish
eggs are present. Removal or filling activities customarily associated
with mining require a permit under paragraph (a) of this subsection.
(c) A permit is not required under paragraph (a) of this subsection
for construction or maintenance of fish passage and fish screening
structures associated with irrigation ditches or the maintenance of
drainage ditches that are constructed, operated or maintained under ORS
498.311, 498.316, 498.326 or 509.600 to 509.645.
(d) Nothing in this section limits or otherwise changes the
exemptions under ORS 196.905.
(2) A governmental body may not issue a lease or permit contrary or
in opposition to the conditions set out in the permit issued under ORS
196.600 to 196.905.
(3) Subsection (1) of this section does not apply to removal of
material under a contract, permit or lease with any governmental body
entered into before September 13, 1967. However, a contract, permit or
lease may not be renewed or extended on or after September 13, 1967,
unless the person removing the material has obtained a permit under ORS
196.600 to 196.905.
(4) Notwithstanding subsection (1) of this section, the Department
of State Lands may issue, orally or in writing, an emergency
authorization for the removal of material from the beds or banks or
filling of any waters of this state in an emergency, for the purpose of
making repairs or for the purpose of preventing irreparable harm, injury
or damage to persons or property. The emergency authorization issued
under this subsection:
(a) Shall contain conditions of operation that the department
determines are necessary to minimize impacts to water resources or
adjoining properties.
(b) Shall be based, whenever practicable, on the recommendations
contained in an on-site evaluation by an employee or representative of
the department.
(c) If issued orally, shall be confirmed in writing by the
department within five days.
(5) As used in this section:
(a) “Bed” means the land within the wet perimeter and any adjacent
nonvegetated dry gravel bar.
(b) “Prospecting” means searching or exploring for samples of gold,
silver or other precious minerals, using nonmotorized methods, from among
small quantities of aggregate.
(c) “Wet perimeter” means the area of the stream that is under
water or is exposed as a nonvegetated dry gravel bar island surrounded on
all sides by actively moving water at the time the activity occurs.Note: See second note under 196.800. (1) Each
applicant for a permit to remove material from the bed or banks or fill
any waters of this state first shall file a written application with the
Director of the Department of State Lands, specifying the nature and
amount of material to be removed or the amount of fill, the waters and
the specific location from which it is to be removed or where the fill
will be placed, the method of removal or filling and the times during
which removal or filling is to be conducted. The director may require
additional information as is necessary to enable the director to
determine whether the granting of the permit applied for is consistent
with the protection, conservation and best use of the water resources of
this state. For the purposes of this subsection, fills or removals of
material at locations not more than one mile apart may be combined in one
application.
(2) The Director of the Department of State Lands shall furnish to
any member of the public upon written request and at the expense of the
member of the public a copy of any application for a permit pursuant to
subsection (1) of this section.
(3)(a) Each application under subsection (1) of this section must
be accompanied by a base fee in accordance with the following schedule:
(A) For a removal by a private operator, or a person contracting to
perform services for a private operator, $50.
(B) For a removal by a public body, $150.
(C) For a removal by a commercial operator, $150.
(D) For a fill by a private operator, or a person contracting to
perform services for a private operator, $150.
(E) For a fill by a public body, $375.
(F) For a fill by a commercial operator, $375.
(G) For erosion-flood repair, including riprap, by a private
landowner or public body, or a person contracting to perform services for
such persons, no fee.
(b) In addition to the base fee for removal established under
paragraph (a) of this subsection, each applicant shall also pay as part
of the application fee the following fee based on the volume of removal
material:
(A) Less than 500 cubic yards, no volume fee.
(B) 500 to 4,999 cubic yards, $75 for private operator, $75 for
public body and $75 for commercial operator.
(C) 5,000 to 50,000 cubic yards, $150 for private operator, $150
for public body and $150 for commercial operator.
(D) Over 50,000 cubic yards, $225 for private operator, $225 for
public body and $225 for commercial operator.
(c) In addition to the base fee for fill established under
paragraph (a) of this subsection, each applicant shall also pay as part
of the application fee the following fee based on the volume of fill
material:
(A) Less than 500 cubic yards, no volume fee.
(B) 500 to 2,999 cubic yards, $75 for private operator, $75 for
public body and $75 for commercial operator.
(C) 3,000 to 10,000 cubic yards, $150 for private operator, $150
for public body and $150 for commercial operator.
(D) Over 10,000 cubic yards, $225 for private operator, $225 for
public body and $225 for commercial operator.
(d) For the purposes of this subsection, the following terms shall
have the following meanings:
(A) “Private operator” means any person undertaking a project for
exclusively a nonincome-producing and nonprofit purpose;
(B) “Public body” means federal, state, and local governmental
bodies, unless specifically exempted by law, engaged in projects for the
purpose of providing free public services;
(C) “Commercial operator” means any person undertaking a project
having financial profit as a goal;
(D) “Riprap” means the facing of a streambank with rock or similar
substance to control erosion in accordance with regulations promulgated
by the Department of State Lands; and
(E) “Erosion-flood repair” means riprap or any other work necessary
to preserve existing facilities and land from flood and high stream
flows, in accordance with regulations promulgated by the department.
(4) For each application that involves both removal and filling,
the application fee assessed shall be either for removal or filling,
whichever is higher according to the fee schedule in subsection (3) of
this section.
(5) Annually on the anniversary date of the permit, each holder of
a material removal or fill permit shall pay a fee during the term of the
permit in accordance with the schedule set forth in subsection (3) of
this section, except that the applicant shall pay only the base fee. The
permit shall be suspended during any period of delinquency of payment as
though no permit was applied for. Notwithstanding this subsection the
director may, before granting any extension of the permit, require the
permittee to show that the continued exercise of the permit is consistent
with the protection, conservation and best use of the water resources of
this state.
(6) Fees received under this section shall be credited to the
Common School Fund for use by the department in administration of ORS
196.600 to 196.905, 196.990 and 541.990 and as otherwise required by law.
[Formerly 541.620 and then 196.685](1) Notwithstanding any provision of ORS
196.600 to 196.905 to the contrary, except as provided in subsection (2)
of this section, the Director of the Department of State Lands shall not
issue any permit to fill Smith Lake or Bybee Lake, located in Multnomah
County, below the contour line which lies 11 feet above mean sea level as
determined by the 1947 adjusted United States Coastal Geodetic Survey
Datum.
(2) Notwithstanding the provision of subsection (1) of this
section, the Director of the Department of State Lands may issue a permit
to fill Smith Lake or Bybee Lake, located in Multnomah County, if such
fill is to enhance or maintain fish and wildlife habitat at or near Smith
Lake or Bybee Lake. A fill shall be considered to be for the purpose of
enhancing or maintaining fish and wildlife habitat if the proposed fill
is approved by the State Department of Fish and Wildlife. [Formerly
541.622 and then 196.690](1) The Director of the Department of State
Lands shall issue a permit to remove material from the beds or banks of
any waters of this state applied for under ORS 196.815 if the director
determines that the removal described in the application will not be
inconsistent with the protection, conservation and best use of the water
resources of this state as specified in ORS 196.805.
(2) The director shall issue a permit applied for under ORS 196.815
for filling waters of this state if the director determines that the
proposed fill would not unreasonably interfere with the paramount policy
of this state to preserve the use of its waters for navigation, fishing
and public recreation.
(3) In determining whether or not a permit shall be issued, the
director shall consider all of the following:
(a) The public need for the proposed fill and the social, economic
or other public benefits likely to result from the proposed fill. When
the applicant for a fill permit is a public body, the director may accept
and rely upon the public body’s findings as to local public need and
local public benefit.
(b) The economic cost to the public if the proposed fill is not
accomplished.
(c) The availability of alternatives to the project for which the
fill is proposed.
(d) The availability of alternative sites for the proposed fill.
(e) Whether the proposed fill conforms to sound policies of
conservation and would not interfere with public health and safety.
(f) Whether the proposed fill is in conformance with existing
public uses of the waters and with uses designated for adjacent land in
an acknowledged comprehensive plan and zoning ordinances.
(g) Whether the proposed fill is compatible with the acknowledged
comprehensive plan and land use regulations for the area where the
proposed fill is to take place or can be conditioned on a future local
approval to meet this criterion.
(h) Whether the proposed fill is for streambank protection.
(i) Whether the applicant has provided all practicable mitigation
to reduce the adverse effects of the proposed fill in the manner set
forth in ORS 196.800 (10). If off-site compensatory wetland mitigation is
proposed, the applicant shall document the impracticability of on-site
compensatory wetland mitigation.
(4) The director may issue a permit for a substantial fill in an
estuary for a nonwater dependent use only if the fill is for a public use
and would satisfy a public need that outweighs harm to navigation,
fishery and recreation and if the proposed fill meets all other criteria
contained in ORS 196.600 to 196.905.
(5) 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, 196.830 and subsections (1) and (2) of this section and
to provide mitigation for the reasonably expected adverse impacts from
project development. In formulating such conditions the director may
request comment from the State Geologist, the State Fish and Wildlife
Director, the State Forester, the Director of the Department of
Environmental Quality, the administrative officer of the Soil and Water
Conservation Commission, the Director of Agriculture, the State Parks and
Recreation Director, the State Marine Director, the Director of
Transportation, the Director of the Economic and Community Development
Department, the Water Resources Director and affected local governmental
units. Each permit is valid only for the time specified therein.
Obtaining a lease from the Department of State Lands may not be one of
the conditions to be considered in granting a permit under ORS 196.815.
The Director of the Department of State Lands shall impose, as conditions
to any permit, general authorization or wetland conservation plan,
measures to provide mitigation for the reasonably expected adverse
impacts from project development. Compensatory wetland mitigation shall
be limited to replacement of the functional attributes of the lost
wetland.
(6) Any applicant whose application for a permit has been deemed
incomplete or has been denied, or who objects to any of the conditions
imposed under subsections (1), (2) and (5) of this section by the
Director of the Department of State Lands, may, within 21 days of the
denial of the permit or the imposition of any condition, request a
hearing from the director. Thereupon the director shall set the matter
down for hearing, which shall be conducted as a contested case in
accordance with ORS 183.415 to 183.430, 183.440 to 183.460 and 183.470.
After such hearing, the director shall enter an order containing findings
of fact and conclusions of law. The order shall rescind, affirm or modify
the director’s initial order. Appeals from the director’s final order may
be taken to the Court of Appeals in the manner provided by ORS 183.482.
(7) Except for a permit issued under the process set forth in ORS
517.952 to 517.989, the director shall:
(a) Determine whether an application is complete within 30 days
from the date the Department of State Lands receives the application. If
the director determines that an application is complete, the director
shall distribute the application for comment pursuant to subsection (5)
of this section. If the director determines that the application is not
complete, the director shall notify the applicant in writing that the
application is deficient and explain, in the same notice, the
deficiencies.
(b) Issue a permit decision involving fill or removal of material
within 90 days after the date the director determines that the
application is complete unless:
(A) An extension of time is granted under subsection (9)(b) of this
section; or
(B) The applicant and the director agree to a longer time period.
(8) Permits issued under this section shall be in lieu of any
permit that might be required for the same operation under ORS 164.775,
164.785, 468.010, 468.030 to 468.045, 468.055, 468.060, 468.075, 468.110,
468.120, 468B.005 to 468B.030 and 468B.048 to 468B.085, so long as:
(a) The operation is that for which the permit is issued; and
(b) The standards for granting such permits are substantially the
same as those established pursuant to ORS 164.775, 164.785, 468.010,
468.035, 468.040, 468.055, 468.110, 468.120, 468B.005 to 468B.030 and
468B.048 to 468B.085 to the extent they affect water quality.
(9)(a) Any agency or other unit of government requested by the
director to comment on an application for a permit under subsection (5)
of this section must submit its comments to the director not more than 30
days after receiving the request for comment. If an agency or other unit
of government fails to comment on the application within 30 days, the
director shall assume the agency or other unit of government has no
objection and shall approve or deny the application.
(b) The Department of Environmental Quality shall provide comments
to the director within 75 days after receiving notice under subsection
(5) of this section if the permit action requires certification under the
Federal Water Pollution Control Act (P.L. 92-500), as amended.
(10) In determining whether to issue a permit, the director may
consider only standards and criteria in effect on the date the director
receives the completed application.
(11) As used in this section:
(a) “Applicant” means a landowner or person authorized by a
landowner to conduct a removal or fill activity.
(b) “Completed application” means a signed permit application form
that contains all necessary information for the director to determine
whether to issue a permit, including:
(A) A map showing the project site with sufficient accuracy to
easily locate the removal or fill site;
(B) A project plan showing the project site and proposed
alterations;
(C) The fee required under ORS 196.815;
(D) Any changes that may be made to the hydraulic characteristics
of waters of this state and a plan to minimize or avoid any adverse
effects of those changes;
(E) If the project may cause substantial adverse effects on aquatic
life or aquatic habitat within this state, documentation of existing
conditions and resources and identification of the potential impact if
the project is completed;
(F) An analysis of alternatives that evaluates practicable methods
to minimize and avoid impacts to waters of this state;
(G) If the project is to fill or remove material from wetlands, a
wetlands mitigation plan; and
(H) Any other information that the director deems pertinent and
necessary to make an informed decision on whether the application
complies with the policy and standards set forth in subsections (1) to
(5) of this section. [Formerly 541.625 and then 196.695; 1991 c.735 §25;
1993 c.741 §18; 1995 c.370 §1; 1995 c.472 §1; 2001 c.460 §2; 2003 c.253
§9; 2003 c.738 §17a]Note: Operation of the amendments to 196.825 by section 3, chapter
516, Oregon Laws 2001, is dependent upon further approval by the
Legislative Assembly. See section 11, chapter 516, Oregon Laws 2001. The
text that is operative after that approval, including amendments by
section 10, chapter 253, Oregon Laws 2003, and section 18a, chapter 738,
Oregon Laws 2003, is set forth for the user’s convenience.
196.825. (1) The Director of the Department of State Lands shall
issue a permit to remove material from the beds or banks of any waters of
this state applied for under ORS 196.815 if the director determines that
the removal described in the application 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.
(2) The director shall issue a permit applied for under ORS 196.815
for filling waters of this state if the director determines that the
proposed fill:
(a) Would not unreasonably interfere with the paramount policy of
this state to preserve the use of its waters for navigation, fishing and
public recreation; and
(b) Is consistent with ORS 196.600 to 196.905.
(3) In determining whether to issue a permit under subsection (1)
or (2) of this section, the director shall consider all of the following:
(a) The public need for the proposed fill and the social, economic
or other public benefits likely to result from the proposed fill. When
the applicant for a fill permit is a public body, the director may accept
and rely upon the public body’s findings as to local public need and
local public benefit.
(b) The economic cost to the public if the proposed fill is not
accomplished.
(c) The availability of alternatives to the project for which the
fill is proposed.
(d) The availability of alternative sites for the proposed fill.
(e) Whether the proposed fill conforms to sound policies of
conservation and would not interfere with public health and safety.
(f) Whether the proposed fill is in conformance with existing
public uses of the waters and with uses designated for adjacent land in
an acknowledged comprehensive plan and zoning ordinances.
(g) Whether the proposed fill is compatible with the acknowledged
comprehensive plan and land use regulations for the area where the
proposed fill is to take place or can be conditioned on a future local
approval to meet this criterion.
(h) Whether the proposed fill is for streambank protection.
(i) Whether the applicant has provided all practicable mitigation
to reduce the adverse effects of the proposed fill in the manner set
forth in ORS 196.800 (10). If off-site compensatory wetland mitigation is
proposed, the applicant shall document the impracticability of on-site
compensatory wetland mitigation.
(4) The director may issue a permit for a substantial fill in an
estuary for a nonwater dependent use only if the fill is for a public use
and would satisfy a public need that outweighs harm to navigation,
fishery and recreation and if the proposed fill meets all other criteria
contained in ORS 196.600 to 196.905.
(5) 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, 196.830 and subsections (1) and (2) of this section and
to provide mitigation for the reasonably expected adverse impacts from
project development. In formulating such conditions the director may
request comment from the State Geologist, the State Fish and Wildlife
Director, the State Forester, the Director of the Department of
Environmental Quality, the administrative officer of the Soil and Water
Conservation Commission, the Director of Agriculture, the State Parks and
Recreation Director, the State Marine Director, the Director of
Transportation, the Director of the Economic and Community Development
Department, the Water Resources Director and affected local governmental
units. Each permit is valid only for the time specified therein.
Obtaining a lease from the Department of State Lands may not be one of
the conditions to be considered in granting a permit under ORS 196.815.
The Director of the Department of State Lands shall impose, as conditions
to any permit, general authorization or wetland conservation plan,
measures to provide mitigation for the reasonably expected adverse
impacts from project development. Compensatory wetland mitigation shall
be limited to replacement of the functional attributes of the lost
wetland.
(6) Any applicant whose application for a permit has been deemed
incomplete or has been denied, or who objects to any of the conditions
imposed under subsections (1), (2) and (5) of this section by the
director, may, within 21 days of the denial of the permit or the
imposition of any condition, request a hearing from the director.
Thereupon the director shall set the matter down for hearing, which shall
be conducted as a contested case in accordance with ORS 183.415 to
183.430, 183.440 to 183.460 and 183.470. After such hearing, the director
shall enter an order containing findings of fact and conclusions of law.
The order shall rescind, affirm or modify the director’s initial order.
Appeals from the director’s final order may be taken to the Court of
Appeals in the manner provided by ORS 183.482.
(7) Except for a permit issued under the process set forth in ORS
517.952 to 517.989, the director shall:
(a) Determine whether an application is complete within 30 days
from the date the Department of State Lands receives the application. If
the director determines that an application is complete, the director
shall distribute the application for comment pursuant to subsection (5)
of this section. If the director determines that the application is not
complete, the director shall notify the applicant in writing that the
application is deficient and explain, in the same notice, the
deficiencies.
(b) Issue a permit decision involving fill or removal of material
within 90 days after the date the director determines that the
application is complete unless:
(A) An extension of time is granted under subsection (9)(b) of this
section; or
(B) The applicant and the director agree to a longer time period.
(8) Permits issued under this section shall be in lieu of any
permit that might be required for the same operation under ORS 164.775,
164.785, 468.010, 468.030 to 468.045, 468.055, 468.060, 468.075, 468.110,
468.120, 468B.005 to 468B.030 and 468B.048 to 468B.085, so long as:
(a) The operation is that for which the permit is issued; and
(b) The standards for granting such permits are substantially the
same as those established pursuant to ORS 164.775, 164.785, 468.010,
468.035, 468.040, 468.055, 468.110, 468.120, 468B.005 to 468B.030 and
468B.048 to 468B.085 to the extent they affect water quality.
(9)(a) Any agency or other unit of government requested by the
director to comment on an application for a permit under subsection (5)
of this section must submit its comments to the director not more than 30
days after receiving the request for comment. If an agency or other unit
of government fails to comment on the application within 30 days, the
director shall assume the agency or other unit of government has no
objection and shall approve or deny the application.
(b) The Department of Environmental Quality shall provide comments
to the director within 75 days after receiving notice under subsection
(5) of this section if the permit action requires certification under the
Federal Water Pollution Control Act (P.L. 92-500), as amended.
(10) In determining whether to issue a permit, the director may
consider only standards and criteria in effect on the date the director
receives the completed application.
(11) As used in this section:
(a) “Applicant” means a landowner or person authorized by a
landowner to conduct a removal or fill activity.
(b) “Completed application” means a signed permit application form
that contains all necessary information for the director to determine
whether to issue a permit, including:
(A) A map showing the project site with sufficient accuracy to
easily locate the removal or fill site;
(B) A project plan showing the project site and proposed
alterations;
(C) The fee required under ORS 196.815;
(D) Any changes that may be made to the hydraulic characteristics
of waters of this state and a plan to minimize or avoid any adverse
effects of those changes;
(E) If the project may cause substantial adverse effects on aquatic
life or aquatic habitat within this state, documentation of existing
conditions and resources and identification of the potential impact if
the project is completed;
(F) An analysis of alternatives that evaluates practicable methods
to minimize and avoid impacts to waters of this state;
(G) If the project is to fill or remove material from wetlands, a
wetlands mitigation plan; and
(H) Any other information that the director deems pertinent and
necessary to make an informed decision on whether the application
complies with the policy and standards set forth in subsections (1) to
(5) of this section.Note: See second note under 196.800.(1) As
used in this section, “estuarine resource replacement” means the
creation, restoration or enhancement of an estuarine area to maintain the
functional characteristics and processes of the estuary, such as its
natural biological productivity, habitats and species diversity, unique
features and water quality.
(2) Except as provided in subsection (4) of this section, the
Director of the Department of State Lands shall require estuarine
resource replacement as a condition of any permit for filling or removal
of material from an intertidal or tidal marsh area of an estuary.
(3) If the director requires estuarine resource replacement, the
director shall consider:
(a) The identified adverse impacts of the proposed activity;
(b) The availability of areas in which replacement activities could
be performed;
(c) The provisions of land use plans for the area adjacent to or
surrounding the area of the proposed activity;
(d) The recommendations of any interested or affected state or
local agencies; and
(e) The extent of compensating activity inherent in the proposed
activity.
(4) Notwithstanding any provisions of this chapter and ORS chapters
195 and 197 or the statewide planning goals adopted thereunder to the
contrary, the director may:
(a) Waive estuarine resource replacement in part for an activity
for which replacement would otherwise be required if, after consultation
with appropriate state and local agencies the director determines that:
(A) There is no alternative manner in which to accomplish the
purpose of the project;
(B) There is no feasible manner in which estuarine resource
replacement could be accomplished;
(C) The economic and public need for the project and the economic
and public benefits resulting from the project clearly outweigh the
potential degradation of the estuary;
(D) The project is for a public use; and
(E) The project is water dependent or the project is publicly owned
and water related; or
(b) Waive estuarine resource replacement wholly or in part for an
activity for which replacement would otherwise be required if the
activity is:
(A) Filling for repair and maintenance of existing functional dikes
and negligible physical or biological damage to the tidal marsh or
intertidal areas of the estuary will result;
(B) Riprap to allow protection of an existing bankline with clean,
durable erosion resistant material when a need for riprap protection is
demonstrated that cannot be met with natural vegetation and no
appreciable increase in existing upland will occur;
(C) Filling for repair and maintenance of existing roads and
negligible physical or biological damage to the tidal marsh or intertidal
areas of the estuary will result;
(D) Dredging for authorized navigation channels, jetty or
navigational aid installation, repair or maintenance conducted by or
under contract with the Army Corps of Engineers;
(E) Dredging or filling required as part of an estuarine resource
restoration or enhancement project agreed to by local, state and federal
agencies; or
(F) A proposed alteration that would have negligible adverse
physical or biological impact on estuarine resources.
(5) Nothing in this section is intended to limit the authority of
the director to impose conditions on a permit under ORS 196.825.
[Formerly 541.626 and then 196.700; 2005 c.22 §136]Any person aggrieved or adversely
affected by the grant of a permit by the Director of the Department of
State Lands may file a written request for hearing with the director
within 21 days after the date the permit was granted. If the director
finds that the person making the written request has a legally protected
interest which is adversely affected by the grant of the permit, the
director shall set the matter down for hearing within 30 days after
receipt of the request. The hearing shall be conducted as a contested
case in accordance with ORS 183.415 to 183.430, 183.440 to 183.460 and
183.470. The permittee shall be a party to the proceeding. Within 45 days
of the 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 original order. Appeals from the director’s final order
may be taken to the Court of Appeals in the manner provided by ORS
183.482. A permit to fill granted by the director may be suspended by the
director during the pendency of the proceedings before the director and
any appeal. The director shall not suspend the permit unless the person
aggrieved or adversely affected by grant of permit makes a showing before
the director by clear and convincing evidence that commencement or
continuation of the fill would cause irremediable damage and would be
inconsistent with ORS 196.600 to 196.905. [Formerly 541.627 and then
196.705; 2003 c.738 §19] In considering applications for
permits, the Director of the Department of State Lands may cause
investigations or surveys to be made of the location of the work
contemplated to determine whether such removal or filling is consistent
with ORS 196.805 and 196.825. [Formerly 541.635 and then 196.715](1) Notwithstanding ORS 196.810, the Department of State Lands
may, by rule, grant general authorization for removal of material from
the bed or banks or the filling of any waters of the state without a
permit from the department if the department finds that those activities
subject to the general authorization are substantially similar in nature
and would cause only minimal individual and cumulative environmental
impacts, and would not result in long-term harm to water resources of the
state. The department shall condition any such general authorization upon
actions necessary to minimize environmental impacts.
(2) The department shall provide notice of any proposed general
authorization to affected federal and state agencies, local governments
and the public. The notice shall include:
(a) A clear description of the proposal; and
(b) Draft findings and any proposed conditions pursuant to
subsection (1) of this section.
(3) Any person proposing to conduct an action under a general
authorization shall notify the department in writing prior to conducting
such action.
(4) The department shall amend or rescind any general authorization
upon a determination that the activities conducted under the
authorization have resulted in or would result in more than minimal
environmental impacts or long-term harm to the water resources of this
state.
(5) The department shall review each general authorization adopted
pursuant to this section every five years. The review shall include
public notice and opportunity for public hearing. After such review, the
department may either modify, reissue or rescind the general
authorization.
(6) In addition to the grounds for review set forth in ORS 183.400
(4), on judicial review of the validity of a rule adopted under this
section, the rule shall be reviewable for substantial evidence in the
rulemaking record. The record shall include copies of all documents
before the agency relevant to whether the requirement of subsection (1)
Note: Operation of the amendments to 196.850 by section 4, chapter
516, Oregon Laws 2001, is dependent upon further approval by the
Legislative Assembly. See section 11, chapter 516, Oregon Laws 2001. The
text that is operative after that approval, including amendments by
section 12, chapter 253, Oregon Laws 2003, is set forth for the user’s
convenience.
196.850. (1) Notwithstanding ORS 196.810, the Department of State
Lands may, by rule, grant general authorization for removal of material
from the bed or banks or the filling of any waters of the state without a
permit from the department if the department finds that those activities
subject to the general authorization are substantially similar in nature
and would cause only minimal individual and cumulative environmental
impacts, and would not result in long-term harm to water resources of the
state. The department shall condition any such general authorization upon
actions necessary to minimize environmental impacts.
(2) The department shall provide notice of any proposed general
authorization to affected federal and state agencies, local governments
and the public. The notice shall include:
(a) A clear description of the proposal; and
(b) Draft findings and any proposed conditions pursuant to
subsection (1) of this section.
(3) Any person proposing to conduct an action under a general
authorization shall notify the department in writing prior to conducting
the action. The person may not commence the action until the person
receives a letter of authorization from the department.
(4) The requirements of subsection (3) of this section shall be
waived if the Director of the Department of State Lands issues a general
authorization and the authorized activity:
(a) Involves less than 50 cubic yards of material;
(b) Will be conducted during periods that minimize adverse effects
to fish and wildlife in accordance with guidance provided by the State
Department of Fish and Wildlife;
(c) Will not dam or divert a waterway in a manner that obstructs
fish passage or vessel navigation; and
(d) Will not violate water quality standards as established by the
Department of Environmental Quality.
(5) The Department of State Lands shall amend or rescind any
general authorization upon a determination that the activities conducted
under the authorization have resulted in or would result in more than
minimal environmental impacts or long-term harm to the water resources of
this state.
(6) The department shall review each general authorization adopted
pursuant to this section every five years. The review shall include
public notice and opportunity for public hearing. After such review, the
department may either modify, reissue or rescind the general
authorization.
(7) In addition to the grounds for review set forth in ORS 183.400
(4), on judicial review of the validity of a rule adopted under this
section, the rule shall be reviewable for substantial evidence in the
rulemaking record. The record shall include copies of all documents
before the agency relevant to whether the requirement of subsection (1)
of this section has been met.Note: See second note under 196.800.The removal of material from the beds or banks or
filling any of the waters of this state without a permit issued under ORS
196.825, or in a manner contrary to the conditions set out in the permit,
or in a manner contrary to the conditions set out in an order approving a
wetlands conservation plan, is a public nuisance. [Formerly 541.645 and
then 196.720] (1) If the Director of the
Department of State Lands determines that material is being removed from
or filling is occurring in any of the waters of this state without a
permit issued under ORS 196.825, or in a manner contrary to the
conditions set out in the permit, or in a manner contrary to the
conditions set out in an order approving a wetlands conservation plan,
the director may:
(a) Investigate, hold hearings, make orders and take action, as
provided in ORS 196.600 to 196.905, as soon as possible.
(b) For the purpose of investigating conditions relating to such
removal or filling, through the employees or the duly authorized
representatives of the Department of State Lands, enter at reasonable
times upon any private or public property.
(c) Conduct public hearings in accordance with ORS chapter 183.
(d) Publish findings and recommendations as they are developed
relative to public policies and procedures necessary for the correction
of conditions or violations of ORS 196.600 to 196.905.
(e) Give notice of any proposed order relating to a violation by
personal service or by mailing the notice by registered or certified mail
to the person or governmental body affected. Any person aggrieved by a
proposed order of the director may request a hearing within 20 days of
the date of personal service or mailing of the notice. Hearings shall be
conducted under the provisions of ORS chapter 183 applicable to contested
cases, and judicial review of final orders shall be conducted in the
Court of Appeals according to ORS 183.482. If no hearing is requested or
if the party fails to appear, a final order shall be issued upon a prima
facie case on the record of the agency.
(f) Take appropriate action for the enforcement of any rules or
final orders. Any violation of ORS 196.600 to 196.905 or of any rule or
final order of the director under ORS 196.600 to 196.905 may be enjoined
in civil abatement proceedings brought in the name of the State of
Oregon; and in any such proceedings the director may seek and the court
may award a sum of money sufficient to compensate the public for any
destruction or infringement of any public right of navigation, fishery or
recreation resulting from such violation. Proceedings thus brought by the
director shall set forth if applicable the dates of notice and hearing
and the specific rule or order of the director, together with the facts
of noncompliance, the facts giving rise to the public nuisance, and a
statement of the damages to any public right of navigation, fishery or
recreation, if any, resulting from such violation.
(2) In addition to the administrative action the director may take
under subsection (1) of this section, the director may enter an order
requiring any person to cease and desist from any violation if the
director determines that such violation presents an imminent and
substantial risk of injury, loss or damage to water resources.
(a) An order under this subsection:
(A) May be entered without prior notice or hearing.
(B) Shall be served upon the person by personal service or by
registered or certified mail.
(C) Shall state that a hearing will be held on the order if a
written request for hearing is filed by the person subject to the order
within 10 days after receipt of the order.
(D) Shall not be stayed during the pendency of a hearing conducted
under paragraph (b) of this subsection.
(b) If a person subject to an order under this subsection files a
timely demand for hearing, the director shall hold a contested case
hearing according to the applicable provisions of ORS chapter 183. If the
person fails to request a hearing, the order shall be entered as a final
order upon prima facie case made on the record of the agency.
(c) Neither the director nor any duly authorized representative of
the department shall be liable for any damages a person may sustain as a
result of a cease and desist order issued under this subsection.
(d) The state and local police shall cooperate in the enforcement
of any order issued under this subsection and shall require no further
authority or warrant in executing or enforcing such order. If any person
fails to comply with an order issued under this subsection, the circuit
court of the county in which the violation occurred or is threatened
shall compel compliance with the director’s order in the same manner as
with an order of that court.
(3) As used in this section, “violation” means removing material
from or placing fill in, any of the waters of this state without a permit
or in a manner contrary to the conditions set out in a permit issued
under ORS 196.825. [Formerly 541.650 and then 196.725] If the
Director of the Department of State Lands finds that a person or
governmental body holding a permit issued under ORS 196.825 is removing
material from the bed or banks or filling any of the waters of this state
contrary to the conditions set out in the permit, the director may
revoke, suspend or refuse to renew such permit. The director may revoke a
permit only after giving notice and opportunity for a hearing as provided
in ORS 183.415 to 183.430, 183.440 to 183.460 and 183.470. [Formerly
541.655 and then 196.730](1) In addition to any enforcement action taken
under ORS 196.860, civil proceedings to abate alleged public nuisances
under ORS 196.855 may be instituted at law or in equity, in the name of
the State of Oregon, upon relation of the Director of the Department of
State Lands or by any person in the person’s name.
(2) Before beginning any action under subsection (1) of this
section, a person other than the director shall provide 60 days notice to
the director of the intended action. A person other than the director may
not begin an action under subsection (1) of this section if the director
has commenced and is diligently prosecuting civil, criminal or
administrative proceedings in the same matter.
(3) The director may institute an action in the name of the State
of Oregon for a temporary restraining order or preliminary injunction if
a threatened or existing nuisance under ORS 196.855 creates an emergency
that requires immediate action to protect the public health, safety or
welfare. The director shall not be required to furnish a bond in such
proceeding.
(4) The State Land Board, the Director of the Department of State
Lands and the employees or duly authorized representatives of the
Department of State Lands shall not be liable for any damages a defendant
may sustain as a result of an injunction, restraining order or abatement
order issued under this section.
(5) A case filed under this section shall be given preference on
the docket over all other civil cases except those given an equal
preference by statute.
(6) In any action brought under this section, the plaintiff may
seek and the court may award a sum of money sufficient to compensate the
public for any destruction or infringement of any public right of
navigation, fishery or recreation resulting from an existing public
nuisance under ORS 196.855. Any money received by the plaintiff under
this subsection shall be deposited in the Common School Fund. [Formerly
541.660 and then 196.735](1) If any
person or governmental body, through negligence, violates ORS 196.810,
the Director of the Department of State Lands, in a proceeding brought
pursuant to ORS 196.870, may seek and the court may award double a sum of
money sufficient to compensate the public for any destruction or
infringement of any public right of navigation, fishery or recreation
resulting from such violation.
(2) If any person or governmental body intentionally violates ORS
196.810, the director, in a proceeding brought pursuant to ORS 196.870,
may seek and the court may award treble a sum of money sufficient to
compensate the public for any destruction or infringement of any public
right of navigation, fishery or recreation resulting from such violation.
(3) An award made pursuant to this section shall be in addition to
and not in lieu of any criminal penalties imposed for a violation of ORS
196.810.
(4) In any action brought under ORS 196.870, the court shall award
to the prevailing party the costs of suit and reasonable attorney fees at
trial and on appeal. Subject to the provisions of ORS 20.140, any costs
and attorney fees so awarded to the director shall be deposited in the
Common School Fund to offset the director’s expenses of bringing such
action. [Formerly 541.662 and then 196.740]Note: 196.875 [formerly 541.662 and 196.740] was enacted by two
identical provisions, section 10 of chapter 330 and section 13 of chapter
674, Oregon Laws 1973. Both are compiled as a single section.If the Director of the Department of State
Lands issues a permit to fill pursuant to ORS 196.600 to 196.905, it
shall be presumed that such fill does not infringe upon the public rights
of navigation, fishery or recreation, and the public rights to lands
created by the fill shall be considered extinguished. [Formerly 541.665
and then 196.745]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. [Formerly 541.670 and then 196.750] Any person who violates any provision of
ORS 196.600 to 196.905 or any rule, order or permit adopted or issued
under ORS 196.600 to 196.905 shall be subject to a civil penalty in an
amount to be determined by the Director of the Department of State Lands
of not more than $10,000 per day of violation. [Formerly 541.675 and then
196.755] (1) Civil penalties under
ORS 196.890 shall be imposed as provided in ORS 183.745.
(2) The provisions of this section are in addition to and not in
lieu of any other penalty or sanction provided by law. An action taken by
the Director of the Department of State Lands under this section may be
joined by the director with any other action taken against the same
person under ORS 196.860 (1)(f).
(3) Any civil penalty recovered under this section shall be
deposited in the Common School Fund for use by the Department of State
Lands in administration of ORS 196.600 to 196.905, 196.990 and 541.990
and as otherwise required by law. [Formerly 541.680 and then 196.760;
1991 c.734 §12]Note: Operation of the amendments to 196.895 by section 5, chapter
516, Oregon Laws 2001, is dependent upon further approval by the
Legislative Assembly. See section 11, chapter 516, Oregon Laws 2001. The
text that is operative after that approval is set forth for the user’s
convenience.196.895. (1) Except as provided in subsection (4) of this section,
civil penalties under ORS 196.890 shall be imposed as provided in ORS
183.745.
(2) The provisions of this section are in addition to and not in
lieu of any other penalty or sanction provided by law. An action taken by
the Director of the Department of State Lands under this section may be
joined by the director with any other action taken against the same
person under ORS 196.860 (1)(f).
(3) Any civil penalty recovered under this section shall be
deposited in the Common School Fund for use by the Department of State
Lands in administration of ORS 196.600 to 196.905, 196.990 and 541.990
and as otherwise required by law.
(4) Notwithstanding any provision of ORS 183.745, any person having
an interest that is adversely affected or aggrieved by an alleged
violation for which civil penalties are imposed under ORS 196.890 may
intervene in a contested case proceeding pertaining to the imposition of
civil penalties under this section.Note: See second note under 196.800.(1) The Director of the
Department of State Lands shall adopt by rule the amount of civil penalty
that may be imposed for a particular violation.
(2) In imposing a penalty under the schedule adopted under
subsection (1) of this section, the director shall consider the following
factors:
(a) The past history of the person incurring a penalty in taking
all feasible steps or procedures necessary or appropriate to correct any
violation.
(b) Any prior violations of statutes, rules, orders and permits
pertaining to waters of the state.
(c) The impact of the violation on public interests in fishery,
navigation and recreation.
(d) Any other factors determined by the director to be relevant and
consistent with the policy of ORS 196.805.
(3) The penalty imposed under this section may be remitted or
mitigated upon such terms and conditions as the director determines to be
proper and consistent with the policy of ORS 196.805. Upon the request of
the person incurring the penalty, the director shall consider evidence of
the economic and financial condition of the person in determining whether
a penalty shall be remitted or mitigated. [Formerly 541.685 and then
196.765](1) Nothing in ORS 196.600 to 196.905
applies to filling the beds of the waters of this state for the purpose
of constructing, operating and maintaining dams or other diversions for
which permits or certificates have been or shall be issued under ORS
chapter 537 or 539 and for which preliminary permits or licenses have
been or shall be issued under ORS 543.010 to 543.610.
(2) Nothing in ORS 196.600 to 196.905 applies to removal of
materials from the beds or banks or filling of the waters of a
nonnavigable natural waterway, or any portion thereof, in this state, if:
(a) Such waterway or portion is situated within forestland; and
(b) Such removal or filling is directly connected with a forest
management practice conducted in accordance with ORS 527.610 to 527.770,
527.990 and 527.992.
(3) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, on converted wetlands for normal farming and ranching
activities such as plowing, grazing, seeding, cultivating, conventional
crop rotation, 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, for the following activities on exclusive farm use
zoned lands:
(a) Drainage or maintenance of farm or stock ponds;
(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.
(5) The exemption in subsections (3) and (4) of this section shall
not apply to any fill or removal which involves changing an area of
wetlands to a nonfarm use.
(6) 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) 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.
(8) 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. [Formerly 541.695 and then 196.770; 1999 c.610 §1]Note: Operation of the amendments to 196.905 by section 6, chapter
516, Oregon Laws 2001, is dependent upon further approval by the
Legislative Assembly. See section 11, chapter 516, Oregon Laws 2001. The
text that is operative after that approval, including amendments by
section 13, chapter 253, Oregon Laws 2003, is set forth for the user’s
convenience.
196.905. (1) Notwithstanding the exemptions in subsections (3) to
(8) of this section, a permit under ORS 196.600 to 196.905 is required
for any fill or removal of material in or from the waters of this state
when:
(a) The fill or removal is a part of an activity whose purpose is
to bring an area of state waters into a use to which it was not
previously subject; and
(b)(A) The flow or circulation of the waters of this state may be
impaired; or
(B) The reach of the waters may be reduced.
(2) Nothing in ORS 196.600 to 196.905 applies to removal of
materials from the beds or banks or filling of the waters of a
nonnavigable natural waterway, or any portion thereof, in this state, if:
(a) Such waterway or portion is situated within forestland; and
(b) Such removal or filling is directly connected with a forest
management practice conducted in accordance with ORS 527.610 to 527.770,
527.990 and 527.992.
(3) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, on converted wetlands for normal farming and ranching
activities such as plowing, grazing, seeding, cultivating, conventional
crop rotation, 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, for the following activities on exclusive farm use
zoned lands:
(a) Drainage or maintenance of farm or stock ponds;
(b) Subsurface drainage, by deep ripping, tiling or moling, on
converted wetlands;
(c) 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) The exemption in subsections (3) and (4) of this section may
not apply to any fill or removal which involves changing an area of
wetlands or converted wetlands to a nonfarm use.
(6) 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) 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) 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) 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.
(10) 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.
(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.Note: See second note under 196.800.The
Department of State Lands shall:
(1) Monitor removal and fill activities, including but not limited
to prospecting and placer mining, within designated essential indigenous
anadromous salmonid habitat areas to determine the effects of such
activities on salmonid spawning and rearing habitat and compile the
results in an annual report.
(2) Cooperate with the State Department of Fish and Wildlife and
other interested parties to develop and distribute public education and
information materials designed to increase understanding and awareness of
permit requirements and acceptable removal and fill practices related to
prospecting and placer mining.
(3) Report periodically to the Joint Legislative Committee on Land
Use on the progress of the Department of State Lands in implementing ORS
196.810. [1997 c.508 §2; 1999 c.59 §54; 2003 c.253 §14]Note: 196.910 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 196 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.PENALTIESViolation of ORS 196.810 is a misdemeanor. [Formerly subsection (4) of 541.990]Note: Operation of the amendments to 196.990 by section 7, chapter
516, Oregon Laws 2001, is dependent upon further approval by the
Legislative Assembly. See section 11, chapter 516, Oregon Laws 2001. The
text that is operative after that approval is set forth for the user’s
convenience.
196.990. (1) A person commits the offense of unlawful removal from
or filling of waters of this state if the person knowingly violates ORS
196.810 or an order issued thereunder, or any rule or condition of a
permit issued under ORS 196.600 to 196.905.
(2) Notwithstanding ORS 161.515, unlawful removal from or filling
of waters of this state is an offense punishable by a fine of up to
$10,000 per day of violation.Note: See second note under 196.800.
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