As used in ORS
549.020 and 549.030, unless a different meaning appears from the context:
(1) “Federal agency” includes the United States, the President of
the United States, and any agency or instrumentality of the United States
which is designated, granted or authorized to engage in the building,
construction and maintaining of flood control projects on any lakes,
rivers or streams within Oregon.
(2) “Board of commissioners” means the governing body of any county
in the state, whether the same consists of two county commissioners and
the county judge or three commissioners.
(3) “Contract” includes contracts and agreements in the customary
form; also a commitment by a federal agency by which it undertakes to
make or engage in the construction of works for the purpose of
controlling floods, and the terms, conditions and restrictions therein
set forth.
(4) “Flood control project” means any plan, system, manner or means
for the control, diversion, conservation or abatement of floodwaters or
any excessive or unusual accumulation of water in any natural or
artificial stream or body of water, or for protection of life and
property against danger, menace, injury or damage resulting therefrom. Any county
may make contracts with any federal agency containing such terms,
provisions and conditions as, in the discretion of the board of
commissioners, may be necessary, proper or advisable for the purpose of
meeting the conditions necessary in the construction of flood control
projects as provided in any federal flood control Acts wherein the
federal government is entirely financing such projects. If
two or more counties in the state desire jointly or severally to make any
agreement with federal agencies relative to flood control, they may enter
into such agreements with any agency named in ORS 549.010 in accordance
with all the provisions stated in ORS 549.010 and 549.020 that will
facilitate cooperative action between boards of commissioners and federal
agencies to meet conditions of any federal flood control Acts wherein the
federal government is entirely financing such projects.DITCHES TO DRAIN LAND; FLOOD CONTROL MEASURES(1) When any person
owns land which requires draining, or any incorporated city in which
there is any ditch, standing water or surplus water requiring draining
has no means of draining such ditch, standing water or surplus water, and
objection is made by the owners of adjacent land to the construction
thereon or thereover of necessary means of drainage, such person or city
may make application in writing to the county court of the county in
which such land or city is situated, for the right of way or privilege to
cut or dig or construct sufficient means of drainage over the adjacent
land.
(2) Likewise any person or municipal corporation whose land is so
situated that it is injured or liable to be injured by floodwaters from
any natural stream flowing through or near the land may make application
to the county court for the right to enlarge or straighten the bed of
such natural stream, or strengthen or build up the banks so as to protect
such lands from overflow or injury.Thereupon the court shall appoint three disinterested
householders of the county as a commission and shall issue an order
directing them to meet on a day named in the order, after subscribing to
an oath or affirmation to faithfully and impartially discharge the duties
of their appointment. At least three days’ notice of the time and place
of the meeting shall be given to all persons through whose lands the
ditch is to be located or upon whose lands the natural stream is to be
straightened, enlarged, or its banks are to be strengthened or built up. In the absence of an officer
authorized to administer oaths, the commissioners may administer the oath
to each other. The commissioners shall proceed to
locate and mark out the route of the ditch so as to do the least damage
to the lands the ditch passes through, or to designate the location,
character and extent of the work to be done in straightening the bed or
building up the banks of the stream, and shall at the same time assess
the damages sustained by the person owning the land. In assessing
damages, the commissioners shall take into consideration all benefits
which will accrue to the lands from the work contemplated.The
commissioners, or a majority of them, shall make a report to the county
court at the next regular session thereof, stating the location of the
ditch or other work contemplated, the name of the person entitled to
damage, and the amount, if any is assessed. If the county court is
satisfied that the report is just, and after payment by the applicant for
the right of way of all costs of locating such ditch or other work, and
the damages, if any are assessed, the court shall cause the same to be
recorded. The applicant then may proceed to make such ditch, or do such
work of straightening the stream or building up or straightening the
banks thereof, doing as little damage to the land it passes through as
possible. Any
person aggrieved by the assessment of damages may appeal within 20 days
to the circuit court.No person shall tap or bring
additional water into any drainage district or drainage district ditch
already dug without paying a reasonable compensation therefor and
securing the written permission of district officials. The criminal
penalty for violation of this section shall not relieve the defendant
from civil liability for damages.ORS 549.110 to 549.180 shall not be
construed so as to interfere with the rights of companies or individuals
for mining, manufacturing, or watering towns or cities.IMPROVEMENT OF WATERCOURSES OR DRAINS WEST OF CASCADES
Whenever 60 percent or more of the owners of land contiguous to and
crossed by some watercourse or drain desire to have such lands drained or
such natural course or drain straightened, altered, widened or deepened,
they may petition the county court of the county in which the land is
situated for such improvement, describing all property affected thereby
and giving the names of the owners thereof. Upon the filing of the
petition the county court shall ascertain whether 60 percent or more of
the owners of land affected have signed the petition, and if so, shall
make a finding to that effect.The county court
shall direct the county surveyor, or county engineer if the county
employs a registered professional engineer, to make a survey of the work
contemplated to be done and prepare plats, plans, profiles and estimates
of cost of the work to be done, and shall assess the damage sustained by
any person owning any land affected by such improvement, taking into
consideration all benefits which will accrue from the work contemplated
to be done to the land. The county surveyor, or county engineer, shall
file with the county clerk the plats, plans, profiles, estimates of cost,
and assessment of damages. Not less than 30 nor more than 60 days after
the county surveyor, or county engineer, has filed the data with the
county clerk, the county court shall hold a hearing, of which at least 10
days’ notice shall be given to all landowners affected, and to the
authority which maintains any highway and to the owners of any railroad
or tramway through which or under which any conduit is to be constructed,
by publishing the same once a week for two successive weeks in a
newspaper of general circulation in the county. At the hearing the county
court shall hear evidence in support of the petition and in support of
any protest or objection thereto, and after consideration shall determine
whether it is to the interest and benefit of the land affected and
conducive to the public welfare to grant the petition for the
improvement. [Amended by 1965 c.287 §1]If the county court authorizes the
improvement, it shall be done under the direction and supervision of the
county surveyor, or the county engineer, who shall set all necessary
grade stakes and bench marks. The owner of any of the lands through which
or on which any portion of the improvement is to be constructed may, at
the expense of the owner, perform such construction work under the
supervision of the county surveyor, or the county engineer. If the owner
does not elect to do such work, it shall be done by the county under the
direction and supervision of the county surveyor, or the county engineer.
[Amended by 1965 c.287 §2]On the completion of the work by the county, the county
surveyor or the county engineer shall make and file with the county clerk
a report showing in detail the work done on each parcel of land
separately owned, the names of the owners, and the amount of costs to
each such parcel of land. The cost shall be assessed against the owner of
the lands by the county court. Any unpaid assessment may be recorded with
the county clerk in any county of this state. The clerk shall thereupon
record the name of the person incurring the assessment and the amount of
the assessment in the County Clerk Lien Record. [Amended by 1965 c.287
§3; 1991 c.459 §427]The drainage work may be
extended across or under any highway and may also be carried under or
through any railroad or tramway. The authority which maintains the
highway through which the conduit crosses shall construct and maintain
the same in good condition and repair, free from obstruction, at its own
expense. The owner of the railroad or tramway under or through which the
conduit is to be constructed shall construct and maintain the same in
good condition and repair, free from obstruction, at its own expense.At least one member of the county court
in the fall of each year shall inspect the improvements constructed under
the provisions of ORS 549.310 to 549.400, for the purpose of ascertaining
whether or not they have been properly maintained and are in a good and
serviceable condition. If it is found that the works are not properly
maintained or are not in a good and serviceable condition either in whole
or in part, the county court shall give notice in writing to the owner of
land upon which it was found that the works are not properly maintained
or are not in a good and serviceable condition, which notice shall set
forth the necessary work to be done and the time of beginning and
completion of the same. In the event the owner fails to comply with the
conditions set forth in the notice, the county court shall order the
necessary work to be done and assess the cost against the land upon which
the work was done in the manner provided in ORS 549.350.Whenever a
county court finds it necessary, in order to carry out any of the
purposes mentioned in ORS 549.310 to 549.370, to condemn, acquire or
appropriate any land, property or right of any nature, it shall so
declare its intention by resolution spread on the records of the court,
setting out the necessity that exists. If it is unable to agree with the
owner for the purchase of such land, property or right, the district
attorney for the county, upon request of the county court, shall commence
and prosecute in any court of competent jurisdiction, in the name of the
county, any necessary suit, action or proceeding for the condemnation of
such land, property or right, for such public use. The procedure in such
suit, action or proceeding shall be, as far as applicable, the procedure
provided by law for the condemnation of lands or rights of way by public
or quasi-public corporations for public use or for corporate purposes;
provided, nothing in this section shall be construed to require the
county to make or tender compensation prior to the condemnation and
taking possession of such land, property or right.
Any person aggrieved by any order pursuant to the provisions of ORS
549.310 to 549.400 authorizing any construction work or by the assessment
of any damages, may appeal to the circuit court within 20 days from the
date when the county court approved such improvement. From the judgment
of the circuit court an appeal to the Court of Appeals may be taken in
the manner provided for appeals in civil proceedings. [Amended by 1979
c.562 §26]
No person shall throw, dump, place or allow to be thrown, dumped or
placed, any rubbish, refuse or any article or thing in any ditch,
lateral, canal, slough, waterway or conduit constructed, operated or
maintained under the provisions of ORS 549.310 to 549.390, or befoul,
pollute or allow to be befouled or polluted any such ditch, lateral,
canal, slough or conduit.REPAIR OF DIKESWhenever two or more contiguous tracts of land, not in a
diking district, the property of separate owners, have been protected by
a common dike or by separate dikes so constructed as to afford a common
benefit to the lands affected thereby, or upon which the dike has been
constructed, and any portion of the dike has become broken or destroyed
or in such condition of repair that the lands intended to be benefited
and protected by the dike are being injured by reason of its broken,
destroyed or other bad condition, and the owner of the land upon which
the broken or destroyed dike is located refuses to rebuild, repair,
reconstruct or otherwise improve the same so as to afford the proper
protection and benefit to the land, the owners of the other contiguous
tracts may attempt to agree with the owner of the land upon which the
dike in question is located, with reference to its repair, reconstruction
or rebuilding. If the owner refuses to rebuild, reconstruct or repair the
dike, the owners of the other contiguous tracts of land affected by the
dike and upon whose land the dikes are in a good condition of repair, may
reconstruct, rebuild or repair the broken or destroyed dike and shall be
entitled, by action in any court having jurisdiction, to recover from the
delinquent owner the reasonable value of the material furnished and labor
used in rebuilding, reconstructing or repairing the same, together with
the cost and disbursements of such action. The action shall be prosecuted
in the name of the owners and against the delinquent party. Any party to
the action is entitled to a jury trial.If
anyone neglects to repair, rebuild or reconstruct a dike as specified in
ORS 549.510, the owners of the contiguous tracts of land may complain to
the county judge of the county in which the lands or some portion thereof
are situated, who, after due notice, shall examine the premises. If the
county judge determines that the dike is in need of reconstruction,
rebuilding or repair, and that the dike is of sufficient benefit to the
lands affected thereby to warrant its maintenance, and if the county
judge finds that the dikes on the other contiguous tracts owned by the
persons complaining are in a good state of repair, the county judge shall
so signify in writing and shall cause to be served upon the delinquent
owner a copy of such finding and shall direct the owner to rebuild,
reconstruct or repair the dike within such time as the judge determines
to be reasonable.If such dike is not repaired or rebuilt accordingly, the
complainants may repair or rebuild the dike, and for that purpose may go
upon the premises where the destroyed or broken dike is located, doing as
little damage as possible thereto, and may recover the value or cost of
rebuilding, reconstructing or repairing the dike from the delinquent
owner, before any court having jurisdiction. The provisions
of ORS 549.510 to 549.530 shall not apply to dikes constructed under
agreement between the owners of contiguous tracts of land, under which
agreement the maintenance of the dike is provided for.FEDERAL FLOOD CONTROL PROJECTS As used in ORS
549.605 to 549.645, unless the context requires otherwise:
(1) “Commission” means the Water Resources Commission.
(2) “Federal flood control projects” includes all authorized
federal projects located wholly or partially within this state which the
commission determines would be beneficial to this state as flood control
measures.
(3) “Federal government” means the United States, or any agency or
instrumentality of the United States which is designated or authorized to
engage in flood control projects within Oregon. [1957 c.466 §1]The Water Resources Commission is directed to carry out, for and on
behalf of the state, the state’s participation in federal flood control
projects. In discharging this responsibility, the commission, or one or
more of its members or employees designated by the commission to
represent it, may sign agreements with the federal government and other
persons, to integrate, if possible, into the federal project necessary or
desirable state or local features and works, to relocate facilities
displaced by such projects and to perform all other acts connected with
and necessary to such participation. Work to be done by the state may be
carried out by contract or by available state forces or by a combination
of these two methods. If the commission deems it to be in the public
interest, they may agree with public or quasi-public bodies and other
persons affected by such projects to have such bodies or persons perform
the work. The commission shall, in all instances, carry out the powers
and duties imposed upon it by ORS 549.605 to 549.645 in a manner which
will comply with federal flood control legislation and rules and
regulations promulgated pursuant to such legislation. [1957 c.466 §2] The Water Resources Commission and its
agents and employees may enter upon lands to gather information when
necessary for the performance of those duties imposed upon them by ORS
549.605 to 549.645. [1957 c.466 §3] The Water Resources Commission may
acquire property, as defined in ORS 35.550 (1), by purchase, donation or
condemnation in the manner provided in ORS 35.550 to 35.575, when
necessary to carry out the duties assigned it by ORS 549.610. [1957 c.466
§4] As to
any property acquired pursuant to ORS 549.605 to 549.645, the Water
Resources Commission may sell, donate, exchange or lease it or grant
easements thereon, on terms which are beneficial to the state and meet
all federal flood control project requirements; and the commission, or
one or more of its members or employees designated by the commission to
represent it, may execute and deliver, in the name of the State of
Oregon, a lease, deed or other instrument of conveyance of such property.
These leases, deeds and instruments may contain such reservations as the
commission deems necessary to protect the interests of the state in flood
control. [1957 c.466 §5] After the completion
of a flood control project or a portion thereof and, in the case of
projects constructed by the federal government, after such project or a
useful portion thereof has been turned over to the state by the federal
government, such projects may be operated and maintained by the Water
Resources Commission for the primary purpose of flood control; or, when
the commission deems such action to be in the public interest, the
commission may enter into agreements with public or quasi-public bodies
and other persons to operate and maintain such projects. [1957 c.466 §6]The Water Resources Commission may enter into agreements with the federal
government, public and quasi-public bodies, including but not limited to
drainage and irrigation districts organized under the laws of Oregon,
water control districts and subdistricts formed under ORS chapter 553 and
district improvement companies formed under ORS chapter 554, and other
persons for the purpose of participating jointly with such bodies or
persons in federal flood control projects or aiding such bodies or
persons in meeting obligations imposed upon them in connection with
federal flood control project agreements. The commission shall not aid or
agree to aid any public or quasi-public body or person unless such body
or person is meeting satisfactorily or to the best of its ability all
obligations imposed upon it under such agreements. [1957 c.466 §7] Except as
provided in ORS 536.500, all moneys received by the Water Resources
Commission under the provisions of ORS 549.605 to 549.645, including any
allotment of moneys from the federal government to reimburse the state
for expenditures made in connection with a flood control project, shall
be turned over to the State Treasurer to be placed in the State Treasury
to the credit of the General Fund. [1957 c.466 §8] Except upon
contracts providing for arbitration under the provisions of ORS 36.600 to
36.740, a suit or action may be maintained against the State of Oregon
through and in the name of the Water Resources Commission for an injury
to the rights of the plaintiff arising from some act or omission
attributable to the Water Resources Commission acting as authorized by
ORS 549.605 to 549.645. [1957 c.466 §9; 2003 c.598 §46]POWERS OF CERTAIN COUNTIES WITH RESPECT TO WATER CONSERVATION AND FLOOD
CONTROLIn any county having a population
in excess of 50,000, according to the latest federal decennial census,
the county court or board of county commissioners may:
(1) Carry out surveys and plan and engage in projects relating to
water conservation and flood control.
(2) Contract and cooperate with federal and state agencies, with
other counties and with other public corporations in making surveys and
planning and engaging in projects relating to water conservation and
flood control.
(3) Provide lands and rights of way, operate and maintain flood
control projects and do such other things as are necessary for county
participation in federal flood control and water conservation projects.
(4) Remove or destroy drifts and drifting material in rivers and
streams or on land that has been flooded. [1957 c.296 §1]When removing or destroying drifts or drifting material in
rivers or streams or on land that has been flooded the county shall:
(1) Have the right to enter upon any land for purposes of
inspection, removal and destruction of drifts and drifting material.
(2) Give reasonable notice to owners of salvable material that the
county has salvaged their property and that if such property has not been
reclaimed or arrangements made for its removal within a reasonable time
but in no event less than 30 days the county will dispose of the property
by sale and, after deducting the amount necessary to reimburse the county
for removal costs, hold the balance for one year for the owner. If, at
the end of that time, the balance remains unclaimed it shall be placed in
the general fund of the county. The county may hold any salvable material
until the owner has reimbursed the county for removal costs. [1957 c.296
§2]The county court of each county may include in its
budget and appropriate out of moneys in the general fund of the county
not otherwise appropriated, an amount for the purposes of ORS 549.710 to
549.730. Out of the amount so appropriated the county court may set aside
an amount, not to exceed one-half of the annual appropriation, to be
placed in a special fund to be expended for emergency purposes or for
future water conservation and flood control programs. [1957 c.296 §3;
1981 c.416 §11]PENALTIES(1) Subject to ORS 153.022, violation of ORS
549.180 is a Class D violation, and the violator shall be compelled to
restore the drainage to the condition previously existing.
(2) Violation of ORS 549.400 is punishable, upon conviction, by a
fine of not less than $10 nor more than $25, or by imprisonment in the
county jail for not more than 10 days, or both. Justice courts shall have
concurrent jurisdiction with the circuit court over violations of ORS
549.400. [Amended by 1999 c.1051 §197]
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