2007 Oregon Code - Chapter 196 :: Chapter 196 - Columbia River Gorge - Ocean Resource Planning - Wetlands - Removal and Fill
Chapter 196 —
Wetlands;
Removal and Fill
2007 EDITION
MISCELLANEOUS MATTERS
196.105Â Â Â Â Definitions
for ORS 196.105 to 196.125
196.107Â Â Â Â Legislative
findings on management plan; effect of plan on land use decisions;
decertification of plan
196.109Â Â Â Â Effect
of revision of urban area boundaries within scenic area on management plan
196.110Â Â Â Â Land
use regulation in Columbia River Gorge National Scenic Area
196.115Â Â Â Â Appeal
from decision of Columbia River Gorge Commission or county
196.120Â Â Â Â Exercise
of eminent domain; property value
196.125Â Â Â Â Buffer
by regulation around Columbia River Gorge National Scenic Area prohibited
196.150Â Â Â Â Compact
provisions
196.155Â Â Â Â Authority
for state officers and agencies to carry out duties under compact
196.160Â Â Â Â Membership
on
196.165Â Â Â Â Status
of commission employees for purposes of certain benefits
196.175Â Â Â Â Pacific
Ocean Resources Compact ratified
196.180Â Â Â Â Compact
provisions
196.185Â Â Â Â Representation
on compact
196.405Â Â Â Â Definitions
for ORS 196.405 to 196.515
196.407Â Â Â Â Policy
196.408Â Â Â Â Duties
of state agencies
196.410Â Â Â Â Legislative
findings for offshore oil and gas leasing
196.415Â Â Â Â Legislative
findings for ocean resources management
196.420Â Â Â Â Policy
196.425Â Â Â Â
196.435Â Â Â Â Primary
agency for certain federal purposes; restrictions
196.438Â Â Â Â Ocean
Policy Advisory Council; members; term of office; quorum
196.443Â Â Â Â Duties
of council
196.448Â Â Â Â Member
compensation; meetings
196.451Â Â Â Â Technical
advisory committee
196.453Â Â Â Â Project
review panels; guidelines
196.455Â Â Â Â Coordination
with federal programs
196.465Â Â Â Â Compatibility
of acknowledged comprehensive plans
196.471Â Â Â Â Territorial
Sea Plan review requirements
196.485Â Â Â Â State
agency coordination requirements; incorporation of plans
196.515Â Â Â Â Short
title
196.575Â Â Â Â Authorization
to obtain federal oceanographic data; joint liaison program; use of data
196.580Â Â Â Â Liaison
program duties
WETLANDS
(Wetlands Mitigation Banks)
196.600Â Â Â Â Definitions
for ORS 196.600 to 196.655
196.605Â Â Â Â Purpose
196.610Â Â Â Â Wetlands;
acquisition and protection; powers of Director of Department of State Lands;
fees
196.615Â Â Â Â Program
for wetlands mitigation banks; program standards and criteria; rules
196.620Â Â Â Â Resource
values and credits for mitigation banks; use and withdrawal of credits; annual
evaluation of system by director
196.623Â Â Â Â Watershed
enhancement project as mitigation bank; sale of mitigation credit
196.625Â Â Â Â Fill
and removal activities in mitigation banks; reports
196.630Â Â Â Â Rules
196.635Â Â Â Â Director
to consult and cooperate with other agencies and interested parties
196.640Â Â Â Â Oregon
Wetlands Mitigation Bank Revolving Fund Account; rules
196.643Â Â Â Â Payments
to comply with permit condition, authorization or resolution of violation
196.645Â Â Â Â Sources
of account
196.650Â Â Â Â Use
of account
196.655Â Â Â Â Report
on Oregon Wetlands Mitigation Bank Revolving Fund Account; contents
196.660Â Â Â Â Effect
of ORS 196.600 to 196.655
196.665Â Â Â Â Short
title
(Wetland Conservation Plans)
196.668Â Â Â Â Legislative
findings
196.672Â Â Â Â Policy
196.674Â Â Â Â Statewide
Wetlands Inventory; rules
196.676Â Â Â Â Response
to notices from local governments
196.678Â Â Â Â Wetland
conservation plans; contents; procedure for adopting
196.681Â Â Â Â Duties
of department; standards for approval of plan; conditions for approval; order
196.682Â Â Â Â Permits
required for removal or fill; conditions on issuance of permit
196.684Â Â Â Â Amendment
of plans; review of plans by department; review of orders by Land Use Board of
Appeals
196.686Â Â Â Â Acknowledged
estuary management plans; review and approval; hearings; final order
196.687Â Â Â Â Regulation
of alteration or fill of artificially created wetlands
196.688Â Â Â Â Public
information program
196.692Â Â Â Â Rules
REMOVAL OF MATERIAL; FILLING
Note         Provision
relating to fills depending on E.P.A. approval--1989 c.45 §2
196.795Â Â Â Â Streamlining
process for administering state removal or fill permits; application for state
program general permit; periodic reports to legislative committee
196.800Â Â Â Â Definitions
for ORS 196.600 to 196.905
196.805Â Â Â Â Policy
196.810Â Â Â Â Permit
required to remove material from bed or banks of waters; status of permit;
exceptions; rules
196.815Â Â Â Â Application
for permit; fees; disposition of fees
196.817Â Â Â Â Application
for general permit; rules
196.818Â Â Â Â Wetland
delineation reports; review by Department of State Lands; fees
196.820Â Â Â Â Prohibition
against issuance of permits to fill
196.825Â Â Â Â Criteria
for issuance of permit; consultation with public bodies; hearing; appeal
196.830Â Â Â Â Estuarine
resource replacement as condition for fill or removal from estuary;
considerations; other permit conditions
196.835Â Â Â Â Hearing
regarding issuance of permit; procedure; appeals; suspension of permit pending
appeal
196.845Â Â Â Â Investigations
and surveys
196.850Â Â Â Â Waiving
permit requirement in certain cases; rules; notice; review; fees; disposition
of fees
196.855Â Â Â Â Noncomplying
removal of material or filling as public nuisance
196.860Â Â Â Â Enforcement
powers of director
196.865Â Â Â Â Revocation,
suspension or refusal to renew permit
196.870Â Â Â Â Abatement
proceedings; restraining order; injunction; public compensation
196.875Â Â Â Â Double
and treble damages for destruction of public right of navigation, fishery or
recreation; costs and attorney fees
196.880Â Â Â Â Fill
under permit presumed not to affect public rights; public rights extinguished
196.885Â Â Â Â Annual
report of fill and removal activities; contents of report
196.890Â Â Â Â Civil
penalties
196.895Â Â Â Â Imposition
of civil penalties
196.900Â Â Â Â Schedule
of civil penalties; rules; factors to be considered in imposing civil penalties
196.905Â Â Â Â Applicability
196.910Â Â Â Â Monitoring
fill and removal activities; public education and information materials;
periodic reports to legislative committee
PENALTIES
196.990Â Â Â Â Penalties
     Note: Definitions in 197.015 apply to ORS chapter
196.
     196.105
Definitions for ORS 196.105 to 196.125. 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]
     196.107
Legislative findings on management plan; effect of plan on land use decisions;
decertification of plan. (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,
     (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]
     196.109
Effect of revision of urban area boundaries within scenic area on management
plan. 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]
     196.110
Land use regulation in
     (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]
     196.115
Appeal from decision of
     (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 commissionÂ’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 countyÂ’s action shall be filed not later than 21 days after the
commissionÂ’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 courtÂ’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 agencyÂ’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 courtÂ’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]
     196.120
Exercise of eminent domain; property value. 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]
     196.125
Buffer by regulation around
     (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]
     196.150
Compact provisions. The
Legislative Assembly of the State of
______________________________________________________________________________
     A compact is entered into by and between
the states of
ARTICLE I
     a. The States of
     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
commissionÂ’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
     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 II
The Commission Membership
     a. 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 III
Effective Date of Compact and Commission
     This 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 IV
Funding
     a. The States of
     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 V
Severability
     If 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]
     196.155
Authority for state officers and agencies to carry out duties under compact. 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]
     196.160
Membership on
     (2) A member shall serve a period of four
years.
     (3) Members of the commission appointed
from
     196.165
Status of commission employees for purposes of certain benefits. (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
     196.175
     (2) In addition to the States of Alaska,
     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.
     196.180
Compact provisions. The
provisions of the Pacific Ocean Resources Compact are as follows:
______________________________________________________________________________
ARTICLE I
Findings and Purpose
A. The
parties recognize:
     (1) The States of Alaska,
     (a) The fluid, dynamic ocean currents and
atmospheric winds that carry pollutants beyond one partyÂ’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 partyÂ’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
     (7) Citizens of the Pacific states and the
     (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 partiesÂ’
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
partyÂ’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
     (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 partiesÂ’ 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 II
Definitions
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
     (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
ARTICLE III
Operative 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,
     (2) This agreement shall become operative
as to the Province of
ARTICLE IV
     (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 successorÂ’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 V
     (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
     (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
     (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 compactÂ’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 VI
Organization
     The 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 VII
Voting 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 VIII
Support Agencies
     The 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 IX
PartiesÂ’ Powers Under Compact
     Except 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 X
Absence
     Continued 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 XI
Funding
     (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 XII
Withdrawal from Compact
     This 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 monthsÂ’ 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.
     196.185
Representation on compact.
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
     Note: See note under 196.175.
     196.405
Definitions for ORS 196.405 to 196.515. 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
     (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) “
     196.407
Policy. It is the policy of
this state to:
     (1) Work with the States of Washington and
     (2) Work with the States of Washington and
     (3) Cooperate and coordinate with adjacent
states to develop a regional approach to obtaining fisheries information. [1989
c.895 §2; 2003 c.744 §2]
     196.408
Duties of state agencies.
(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
     (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]
     196.410
Legislative findings for offshore oil and gas leasing. The Legislative Assembly finds:
     (1)
     (2)
     (3)
     196.415
Legislative findings for ocean resources management. The Legislative Assembly finds that:
     (1) The
     (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
     (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]
     196.420
Policy. It is the policy of
the State of
     (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]
     196.425
     (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 OregonÂ’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
     196.435
Primary agency for certain federal purposes; restrictions. (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]
     196.438
Ocean Policy Advisory Council; members; term of office; quorum. (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 directorÂ’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
     (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
     (B) Commercial ocean fisheries of the
     (C) Charter, sport or recreation ocean
fisheries of the
     (D) Charter, sport or recreation ocean
fisheries of the
     (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.
     196.443
Duties of council. (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
     (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.
     196.445 [1987 c.576 §8; 1989 c.154 §1; 1989 c.904 §52;
repealed by 1991 c.501 §18]
     196.448
Member compensation; meetings.
(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.
     196.450 [1987 c.576 §9; repealed by 1991 c.501 §18]
     196.451
Technical advisory committee.
(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.
     196.453
Project review panels; guidelines. (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.
     196.455
Coordination with federal programs. 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]
     196.465
Compatibility of acknowledged comprehensive plans. (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
     (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]
     196.470 [1987 c.576 §12; repealed by 1991 c.501 §18]
     196.471
     (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.
     196.475 [1987 c.576 §13; 1991 c.501 §15; repealed by
2003 c.744 §14]
     196.485
State agency coordination requirements; incorporation of plans. (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]
     196.490 [1987 c.576 §18; repealed by 1991 c.501 §18]
     196.495 [1987 c.576 §19; repealed by 1991 c.501 §18]
     196.500 [1987 c.576 §20; repealed by 1991 c.501 §18]
     196.505 [1987 c.576 §21; repealed by 1991 c.501 §18]
     196.515
Short title. ORS 196.405 to
196.485 shall be known as the Oregon Ocean Resources Management Act. [1987
c.576 §2]
     196.575
Authorization to obtain federal oceanographic data; joint liaison program; use
of data. (1) The Department
of Land Conservation and Development is authorized to participate on behalf of
the State of
     (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
     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.
     196.580
Liaison program duties. (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
     Note: See note under 196.575.
WETLANDS
(Wetlands
Mitigation Banks)
     196.600
Definitions for ORS 196.600 to 196.655. 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 bankÂ’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]
     196.605
Purpose. 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]
     196.610
Wetlands; acquisition and protection; powers of Director of Department of State
Lands; fees. 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]
     196.615
Program for wetlands mitigation banks; program standards and criteria; rules. (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]
     196.620
Resource values and credits for mitigation banks; use and withdrawal of
credits; annual evaluation of system by director. (1) For each mitigation bank, the Department
of State Lands shall establish a system of resource values and credits.
     (2) A credit from a mitigation bank may be
withdrawn for a condition imposed on a permit in accordance with ORS 196.825
(4), for any other authorization issued in accordance with ORS 196.800 to
196.905 or to resolve a violation of ORS 196.800 to 196.905. At the request of
a mitigation bank sponsor, the Director of the Department of State Lands may
authorize the withdrawal of mitigation bank credits by a public benefit
corporation as defined in ORS 65.001 or a public body as defined by ORS 174.109
designated by the director for the purpose of reserving credits for future use
in accordance with this subsection. The director shall manage such transactions
to ensure that each credit is used no more than one time to satisfy a use in
accordance with this section.
     (3) Credits from a freshwater mitigation
bank may be used only as described in subsection (2) of this section for
permits, authorizations or resolutions of violations approved within the
service area of the mitigation bank, consistent with the mitigation bank
instrument, unless the Director of the Department of State Lands 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; 2007 c.804 §70; 2007
c.849 §10]
     196.623
Watershed enhancement project as mitigation bank; sale of mitigation credit. (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]
     196.625
Fill and removal activities in mitigation banks; reports. (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]
     196.630
Rules. 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]
     196.635
Director to consult and cooperate with other agencies and interested parties. (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]
     196.640
Oregon Wetlands Mitigation Bank Revolving Fund Account; rules. (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]
     196.643
Payments to comply with permit condition, authorization or resolution of
violation. A person who
provides off-site compensatory wetland mitigation in order to comply with a
condition imposed on a permit in accordance with ORS 196.825 (4), an
authorization issued in accordance with ORS 196.800 to 196.905 or a resolution
of a violation of ORS 196.800 to 196.905 may make a payment for credits to an
approved mitigation bank with available credits, or to the Oregon Wetlands
Mitigation Bank Revolving Fund Account, if credits from a mitigation bank are
not available. If the person is making a payment to the Oregon Wetlands
Mitigation Bank Revolving Fund Account, the payment shall be equal to the
average cost of credits available from all active mitigation banks in the
state. [2003 c.738 §22; 2007 c.849 §11]
     196.645
Sources of account. 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]
     196.650
Use of account. 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]
     196.655
Report on Oregon Wetlands Mitigation Bank Revolving Fund Account; contents. 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]
     196.660
Effect of ORS 196.600 to 196.655. 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]
     196.665
Short title. ORS 196.600 to
196.655 may be cited as the “Oregon Wetlands Mitigation Bank Act of 1987.” [Formerly
541.595]
(Wetland
Conservation Plans)
     196.668
Legislative findings. 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 stateÂ’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
     (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 stateÂ’s concern since benefits and impacts related to wetland resources
can be international, national, regional and statewide in scope. [1989 c.837 §2]
     196.670 [Formerly 541.605; renumbered 196.800 in
1989]
     196.672
Policy. In addition to the
policy described in ORS 196.805, it is the policy of the State of
     (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]
     196.674
Statewide Wetlands Inventory; rules. (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]
     196.675 [Formerly 541.610; renumbered 196.805 in
1989]
     196.676
Response to notices from local governments. 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]
     196.678
Wetland conservation plans; contents; procedure for adopting. (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]
     196.680 [Formerly 541.615; renumbered 196.810 in
1989]
     196.681
Duties of department; standards for approval of plan; conditions for approval;
order. (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]
     196.682
Permits required for removal or fill; conditions on issuance of permit. (1) Except where otherwise provided by the
order approving the plan, individual permit applications shall be required for
removal or fill, or both, in areas subject to an approved wetland conservation
plan. If individual permit applications are to be reviewed under the authority
of the Director of the Department of State Lands, then application fees and
review procedures shall be in accordance with ORS 196.815, 196.825 and 196.835.
In lieu of the substantive standards for permit issuance in ORS 196.825 (2),
the Department of State Lands shall issue a permit if the removal or fill, or
both, is consistent with the wetland conservation plan or can be conditioned to
be consistent with the plan. The department shall condition any such permit as
necessary to ensure that the project:
     (a) Is properly designed or configured to
minimize the need for alterations to waters of this state;
     (b) Is the minimum size necessary to
reasonably provide for the proposed use;
     (c) Complies with applicable provisions of
the acknowledged comprehensive plan and land use regulations for the area;
     (d) Is designed to minimize impacts from
implementing the project; and
     (e) Is conditioned to ensure wetland
creation, restoration or enhancement 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 ensure that the project complies with the conditions of subsection
(1) of this section and clearly delineates the wetland area in which fill or
removal, or both, is to occur. [1989 c.837 §12; 2007 c.849 §12]
     196.684
Amendment of plans; review of plans by department; review of orders by Land Use
Board of Appeals. (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 directorÂ’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 directorÂ’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]
     196.685 [Formerly 541.620; renumbered 196.815 in
1989]
     196.686
Acknowledged estuary management plans; review and approval; hearings; final
order. (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 weeksÂ’ notice, the
department shall hold a public informational hearing on the proposed approval
of the acknowledged estuary management plan as a wetland conservation plan.
     (8) Within 60 days of acceptance of the
request for review, the department shall conduct a preliminary review of the
acknowledged estuary management plan. The department shall consult with the
affected local government prior to finalizing the preliminary review.
     (9) Except as provided in subsection (10)
of this section, the Director of the Department of State Lands shall approve
the acknowledged estuary management plan by order within 60 days of completion
of the preliminary review.
     (10) A contested case hearing shall be
held within 30 days of the completion of the preliminary review or receipt of a
request for hearing if:
     (a) The director determines there is
probable cause to believe that the estuary management plan does not meet the
standards for approving wetland conservation plans or unreasonably interferes
with the use of the estuary for navigation, fisheries or public recreation; or
     (b) A hearing is requested and the
request:
     (A) Is made in writing within 60 days of
the date of mailing of notice of completion of review;
     (B) Clearly states the reasons for
requesting the hearing; and
     (C) Provides sufficient information for
the director to determine that there is probable cause to believe that the
estuary management plan does not meet the standards for approving wetland
conservation plans or unreasonably interferes with the use of the estuary for
navigation, fisheries or public recreation.
     (11) The director shall approve the
acknowledged estuary management plan as a wetland conservation plan by order
unless the director finds by a preponderance of the evidence that the estuary
management plan does not meet the standards for approving wetland conservation
plans or unreasonably interferes with the use of the estuary for navigation,
fisheries or public recreation or that substantial fills proposed in an estuary
management plan for nonwater dependent use are not for a public use and would
not satisfy a public need that outweighs harm to navigation, fisheries or
public recreation.
     (12) The director shall prepare a proposed
order for review by the parties within 30 days of any contested case hearing
held pursuant to subsection (10) of this section.
     (13) A final order from the director that
recommends, pursuant to subsection (8) of this section, denial of an estuary management
plan as a wetland conservation plan shall identify deficient elements and
provisions of the acknowledged estuary management plan and what measures may be
taken to correct those deficiencies.
     (14) Individual permit applications shall
be required for removal or fill, or both, in areas subject to an approved
estuary management plan. Individual permit applications shall be reviewed in
accordance with ORS 196.815, 196.825, 196.830 and 196.835. In lieu of the
substantive standards for permit issuance in ORS 196.825 (2), the department
shall issue a permit if the removal or fill, or both, is determined by the
director to be consistent with the estuary management plan or can be
conditioned to be consistent with the plan. The department shall condition any such
permit as necessary to ensure that the project:
     (a) Is designed or configured to minimize
alterations to waters of this state;
     (b) Is the minimum size necessary to
reasonably provide for the proposed use;
     (c) Is consistent with the resource
capabilities of the area and the purposes of the management unit, unless this
has been previously determined in the approved estuary management plan;
     (d) Is designed to minimize impacts from
implementing the project; and
     (e) Has estuarine resource replacement measures
for creation, restoration or enhancement that replaces impacted resources.
     (15) Judicial review of an order granting
or denying approval of an estuary management plan as provided in this section
shall be as provided in ORS 183.470.
     (16) Following approval by the director of
an estuary management plan, the requirements of ORS 196.684 shall apply to the
approved estuary management plan. [1989 c.837 §14; 2007 c.849 §13]
     196.687
Regulation of alteration or fill of artificially created wetlands. (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.
     196.688
Public information program.
(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
     (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]
     196.690 [Formerly 541.622; renumbered 196.820 in
1989]
     196.692
Rules. (1) The Department of
State Lands shall adopt rules to carry out the provisions of ORS 196.668 to
196.692, 196.800, 196.810, 196.818, 196.825, 196.830, 196.850 to 196.860,
196.885, 196.905, 197.015, 197.279, 215.213, 215.283, 215.284, 215.418 and
227.350.
     (2) Rules adopted pursuant to subsection
(1) of this section shall include rules governing the application for and
issuance of permits to remove material from the beds or banks of any waters of
this state or to fill any waters of this state including, but not limited to,
clear and objective standards and criteria for determining whether to grant or
deny a permit. [1989 c.837 §32; 2001 c.460 §1; 2007 c.850 §4]
     196.695 [Formerly 541.625; renumbered 196.825 in
1989]
     196.700 [Formerly 541.626; renumbered 196.830 in
1989]
     196.705 [Formerly 541.627; renumbered 196.835 in
1989]
     196.710 [Formerly 541.630; renumbered 196.840 in
1989]
     196.715 [Formerly 541.635; renumbered 196.845 in
1989]
     196.718 [Enacted in lieu of 541.640; renumbered
196.850 in 1989]
     196.720 [Formerly 541.645; renumbered 196.855 in
1989]
     196.725 [Formerly 541.650; renumbered 196.860 in
1989]
     196.730 [Formerly 541.655; renumbered 196.865 in
1989]
     196.735 [Formerly 541.660; renumbered 196.870 in
1989]
     196.740 [Formerly 541.662; renumbered 196.875 in
1989]
     196.745 [Formerly 541.665; renumbered 196.880 in
1989]
     196.750 [Formerly 541.670; renumbered 196.885 in
1989]
     196.755 [Formerly 541.675; renumbered 196.890 in
1989]
     196.760 [Formerly 541.680; renumbered 196.895 in
1989]
     196.765 [Formerly 541.685; renumbered 196.900 in
1989]
     196.770 [Formerly 541.695; renumbered 196.905 in
1989]
REMOVAL OF
MATERIAL; FILLING
     Note: 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 [renumbered 196.800 to 196.900 in 1989]:
     (a) As used in ORS 541.605 to 541.685
[renumbered 196.800 to 196.900 in 1989], “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 541.685 [renumbered 196.800 to 196.900 in 1989] 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.
     196.795
Streamlining process for administering state removal or fill permits;
application for state program general permit; periodic reports to legislative
committee. (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 appropriate legislative committee on the progress in
implementing subsection (1) of this section. [1995 c.474 §1; 1997 c.116 §1;
1999 c.59 §53; 2007 c.354 §2]
     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.
     196.800
Definitions for ORS 196.600 to 196.905. As used in ORS 196.600 to 196.905, unless the context requires
otherwise:
     (1) “Channel relocation” means a change in
location of a channel in which a new channel is dug and the flow is diverted
from the old channel into the new channel if more than 50 cubic yards of
material is removed in constructing the new channel or if it would require more
than 50 cubic yards of material to completely fill the old channel.
     (2) “Estuary” means:
     (a) For waters other than the Columbia
River, the body of water from the ocean to the head of tidewater that is
partially enclosed by land and within which salt water is usually diluted by
fresh water from the land, including all associated estuarine waters,
tidelands, tidal marshes and submerged lands; and
     (b) For the Columbia River, all waters
from the mouth of the river up to the western edge of
     (3) “Fill” means the total of deposits by
artificial means equal to or exceeding 50 cubic yards or more of material at
one location in any waters of this state.
     (4) “General authorization” means an
authorization granted under ORS 196.850 for a category of activities involving
removal or fill, or both, without a permit.
     (5) “General permit” means a permit for
removal activities or fill activities that are substantially similar in nature,
are recurring or ongoing, and have predictable effects and outcomes.
     (6) “Intermittent stream” means any stream
which flows during a portion of every year and which provides spawning, rearing
or food-producing areas for food and game fish.
     (7) “Material” means rock, gravel, sand,
silt and other inorganic substances removed from waters of this state and any
materials, organic or inorganic, used to fill waters of this state.
     (8) “Mitigation” means the reduction of
adverse effects of a proposed project by considering, in the following order:
     (a) Avoiding the effect altogether by not
taking a certain action or parts of an action;
     (b) Minimizing the effect by limiting the
degree or magnitude of the action and its implementation;
     (c) Rectifying the effect by repairing,
rehabilitating or restoring the affected environment;
     (d) Reducing or eliminating the effect
over time by preservation and maintenance operations during the life of the
action by monitoring and taking appropriate corrective measures; and
     (e) Compensating for the effect by
replacing or providing comparable substitute wetland or water resources.
     (9) “Person” means a person, a public body
as defined in ORS 174.109, the federal government, when operating in any
capacity other than navigational servitude, or any other legal entity.
     (10) “Practicable” means capable of being
accomplished after taking into consideration the cost, existing technology and
logistics with respect to the overall project purpose.
     (11) “Public use” means a publicly owned
project or a privately owned project that is available for use by the public.
     (12) “Removal” means:
     (a) The taking of more than 50 cubic yards
or the equivalent weight in tons of material in any waters of this state in any
calendar year; or
     (b) The movement by artificial means of an
equivalent amount of material on or within the bed of such waters, including
channel relocation.
     (13) “Water resources” includes not only
water itself but also aquatic life and habitats therein and all other natural
resources in and under the waters of this state.
     (14) “Waters of this state” means all
natural waterways, tidal and nontidal bays, intermittent streams, constantly
flowing streams, lakes, wetlands, that portion of the Pacific Ocean that is in
the boundaries of this state, all other navigable and nonnavigable bodies of
water in this state and those portions of the ocean shore, as defined in ORS
390.605, where removal or fill activities are regulated under a state-assumed
permit program as provided in 33 U.S.C. 1344(g) of the Federal Water Pollution
Control Act, as amended.
     (15) “Wetland conservation plan” means a
written plan providing for wetland management containing a detailed and
comprehensive statement of policies, standards and criteria to guide public and
private uses and protection of wetlands, waters and related adjacent uplands
and which has specific implementing measures and which apply to designated geographic
areas of the State of Oregon.
     (16) “Wetlands” means those areas that are
inundated or saturated by surface or ground water at a frequency and duration
sufficient to support, and that under normal circumstances do support, a
prevalence of vegetation typically adapted for life in saturated soil
conditions. [Formerly 541.605 and then 196.670; 1999 c.373 §1; 2003 c.253 §7;
2003 c.738 §14; 2007 c.849 §2]
     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, section 15, chapter 738, Oregon Laws 2003, and
section 3, chapter 849, Oregon Laws 2007, is set forth for the userÂ’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) “Estuary” means:
     (a) For waters other than the Columbia
River, the body of water from the ocean to the head of tidewater that is
partially enclosed by land and within which salt water is usually diluted by
fresh water from the land, including all associated estuarine waters,
tidelands, tidal marshes and submerged lands; and
     (b) For the Columbia River, all waters
from the mouth of the river up to the western edge of
     (3) “Fill” means the deposit by artificial
means of material at one location in any waters of this state.
     (4) “General authorization” means an
authorization granted under ORS 196.850 for a category of activities involving
removal or fill, or both, without a permit.
     (5) “General permit” means a permit for
removal activities or fill activities that are substantially similar in nature,
are recurring or ongoing, and have predictable effects and outcomes.
     (6) “Intermittent stream” means any stream
which flows during a portion of every year and which provides spawning, rearing
or food-producing areas for food and game fish.
     (7) “Material” means rock, gravel, sand,
silt and other inorganic substances removed from waters of this state and any
materials, organic or inorganic, used to fill waters of this state.
     (8) “Mitigation” means the reduction of
adverse effects of a proposed project by considering, in the following order:
     (a) Avoiding the effect altogether by not
taking a certain action or parts of an action;
     (b) Minimizing the effect by limiting the
degree or magnitude of the action and its implementation;
     (c) Rectifying the effect by repairing,
rehabilitating or restoring the affected environment;
     (d) Reducing or eliminating the effect
over time by preservation and maintenance operations during the life of the
action by monitoring and taking appropriate corrective measures; and
     (e) Compensating for the effect by
replacing or providing comparable substitute wetland or water resources.
     (9) “Person” means a person, a public
body, as defined in ORS 174.109, the federal government, when operating in any
capacity other than navigational servitude, or any other legal entity.
     (10) “Practicable” means capable of being
accomplished after taking into consideration the cost, existing technology and
logistics with respect to the overall project purpose.
     (11) “Public use” means a publicly owned
project or a privately owned project that is available for use by the public.
     (12) “Removal” means:
     (a) The taking of material in any waters
of this state; or
     (b) The movement by artificial means of
material within the bed of such waters, including channel relocation.
     (13) “Water resources” includes not only
water itself but also aquatic life and habitats therein and all other natural
resources in and under the waters of this state.
     (14) “Waters of this state” means all
natural waterways, tidal and nontidal bays, intermittent streams, constantly
flowing streams, lakes, wetlands, that portion of the Pacific Ocean that is in
the boundaries of this state, all other navigable and nonnavigable bodies of
water in this state and those portions of the ocean shore, as defined in ORS
390.605, where removal or fill activities are regulated under a state-assumed
permit program as provided in 33 U.S.C. 1344(g) of the Federal Water Pollution
Control Act, as amended.
     (15) “Wetland conservation plan” means a
written plan providing for wetland management containing a detailed and
comprehensive statement of policies, standards and criteria to guide public and
private uses and protection of wetlands, waters and related adjacent uplands
and which has specific implementing measures and which apply to designated
geographic areas of the State of Oregon.
     (16) “Wetlands” means those areas that are
inundated or saturated by surface or ground water at a frequency and duration
sufficient to support, and that under normal circumstances do support, a prevalence
of vegetation typically adapted for life in saturated soil conditions.
     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. [2001 c.516 §13]
     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]
     196.805
Policy. (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]
     196.810
Permit required to remove material from bed or banks of waters; status of permit;
exceptions; rules. (1)(a)
Except as otherwise specifically permitted under ORS 196.600 to 196.905, a
person may not remove any material from the beds or banks of any waters of this
state 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 wetland conservation plan.
     (b) Notwithstanding the permit
requirements of this section and notwithstanding the provisions of ORS 196.800
(3) and (12), 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) A person is not 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) A permit is not 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 498.306, 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) A public body, as defined in ORS
174.109, 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
public body, as defined in ORS 174.109, 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 to a person 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.
     (d) Does not relieve the person from
payment of a fee calculated in the manner provided in ORS 196.815. [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; 2007 c.71 §63; 2007
c.625 §4; 2007 c.849 §14]
     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, section 64, chapter 71, Oregon Laws 2007, section
5, chapter 625, Oregon Laws 2007, and section 15, chapter 849, Oregon Laws
2007, is set forth for the userÂ’s convenience.
     196.810. (1)(a) Except as otherwise specifically
permitted under ORS 196.600 to 196.905, a person may not remove any material
from the beds or banks of any waters of this state 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 wetland 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 498.306, 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 public body, as defined in ORS
174.109, 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
public body, as defined in ORS 174.109, 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 to a person 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.
     (d) Does not relieve the person from
payment of a fee calculated in the manner provided in ORS 196.815.
     (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.
     196.815
Application for permit; fees; disposition of fees. (1) A person who is required to have a
permit to remove material from the bed or banks or fill any waters of this
state shall file a written application with the Director of the Department of
State Lands for each individual project before performing any removal or fill.
     (2)(a) Each application under subsection
(1) of this section must be accompanied by a base fee in accordance with the
following schedule:
     (A) For a removal by a private operator,
or a person contracting to perform services for a private operator, $85.
     (B) For a removal by a public body, $250.
     (C) For a removal by a commercial
operator, $250.
     (D) For a fill by a private operator, or a
person contracting to perform services for a private operator, $250.
     (E) For a fill by a public body, $620.
     (F) For a fill by a commercial operator,
$620.
     (G) For erosion-flood repair, including
riprap, no fee.
     (b) In addition to the base fee for
removal established under paragraph (a) of this subsection, each applicant
shall also pay as part of the application fee the following fee based on the
volume of removal material:
     (A) Less than 500 cubic yards, no volume
fee.
     (B) 500 to less than 5,000 cubic yards,
$125.
     (C) 5,000 to less than or equal to 50,000
cubic yards, $250.
     (D) Over 50,000 cubic yards, $375.
     (c) In addition to the base fee for fill
established under paragraph (a) of this subsection, each applicant shall also
pay as part of the application fee the following fee based on the volume of
fill material:
     (A) Less than 500 cubic yards, no volume
fee.
     (B) 500 to less than 3,000 cubic yards,
$125.
     (C) 3,000 to less than or equal to 10,000
cubic yards, $250.
     (D) Over 10,000 cubic yards, $375.
     (d) For the purposes of this subsection:
     (A) “Private operator” means any person
undertaking a project for exclusively a nonincome-producing and nonprofit
purpose;
     (B) “Public body” means federal, state,
and local governmental bodies, unless specifically exempted by law, engaged in
projects for the purpose of providing free public services;
     (C) “Commercial operator” means any person
undertaking a project having financial profit as a goal;
     (D) “Riprap” means the facing of a
streambank with rock or similar substance to control erosion in accordance with
regulations promulgated by the Department of State Lands; and
     (E) “Erosion-flood repair” means riprap or
any other work necessary to preserve existing facilities and land from flood
and high streamflows, in accordance with regulations promulgated by the
department.
     (3) For each application that involves
both removal and filling, the application fee assessed shall be either for
removal or filling, whichever is higher according to the fee schedule in
subsection (2) of this section.
     (4) The department may waive the fees
specified in subsection (2) of this section for a permit that will be used to
perform a voluntary habitat restoration project.
     (5) A person who receives an emergency
authorization under ORS 196.810 to remove material from the beds or banks of
any waters of this state or to fill any waters of this state shall, within 45
days after receiving the authorization, submit a fee to the department
calculated in the manner provided under this section for permit applications.
     (6) Prior to or on the anniversary date of
the permit, each holder of a material removal or fill permit shall pay a fee
during the term of the permit in accordance with the schedule set forth in
subsection (2) of this section, except that the applicant shall pay only the
base fee. The permit shall be suspended during any period of delinquency of
payment as though no permit was applied for. Notwithstanding this subsection
the director may, before granting a renewal of the permit, require the
permittee to show that the continued exercise of the permit is consistent with
the protection, conservation and best use of the water resources of this state.
     (7) Fees received under this section shall
be credited to the Common School Fund for use by the department in
administration of ORS 196.600 to 196.905.
     (8) The director shall issue an order
revising the fees specified in this section on January 1 of each year,
beginning in 2009, based on changes in the Portland-Salem, OR-WA Consumer Price
Index for All Urban Consumers for All Items as published by the Bureau of Labor
Statistics of the United States Department of Labor. The director shall round
the amount of each fee to the nearest dollar. The revised fees shall take
effect January 1 and apply for that calendar year. [Formerly 541.620 and then
196.685; 2007 c.849 §1]
     196.817
Application for general permit; rules. (1)(a) Notwithstanding ORS 196.810, the Department of State Lands may
establish by rule a removal or fill general permit:
     (A) For processing applications on a
statewide or geographic basis; or
     (B) For an applicant or group of
applicants to cover activities that are substantially similar in nature, are
recurring or ongoing, and have predictable effects and outcomes.
     (b) The department must find that the
project is in compliance with the review standards set forth in ORS 196.600 to
196.905 and would not result in long-term harm to water resources of this
state.
     (c) The department shall condition any
such general permit upon actions necessary to minimize environmental effects.
     (2) Any person proposing to conduct an
action under a general permit shall apply to the department in accordance with
procedures set forth by the department by rule.
     (3) The department shall amend or rescind
any general permit upon a determination that the activities conducted under the
permit have resulted in or would result in unacceptable individual or
cumulative environmental effects or long-term harm to the water resources of
this state.
     (4) Any person proposing to conduct an
action under a general permit shall pay the applicable fee required under ORS
196.815 for individual permit applications. [2007 c.849 §9]
     196.818
Wetland delineation reports; review by Department of State Lands; fees. (1) A person or governmental body must pay
to the Department of State Lands a nonrefundable fee of $350 when submitting a
wetland delineation report to the department for a determination of:
     (a) Whether waters of this state are
present on a specific land parcel;
     (b) Where the boundaries of waters of this
state are located on a land parcel; or
     (c) Whether the waters of this state or a
proposed activity in the waters of this state is subject to permit
requirements.
     (2) The department shall review the
wetland delineation report submitted under subsection (1) of this section
within 120 days after submission of the wetland delineation report to the
department.
     (3) The fee described in subsection (1) of
this section is in addition to any permit application fee required under ORS
196.815. A person or governmental body submitting a revised report to replace a
previously rejected report must pay an additional nonrefundable fee of $100.
     (4) The Director of the Department of
State Lands shall issue an order revising the fee specified in subsection (1)
of this section on January 1 of each year, based on changes in the Portland-Salem,
OR-WA Consumer Price Index for All Urban Consumers for All Items as published
by the Bureau of Labor Statistics of the United States Department of Labor. The
director shall round the amount to the nearest dollar. The revised fee shall
take effect January 1 and apply for that calendar year.
     (5) 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. [2007 c.850 §2]
     Note: Section 3, chapter 850, Oregon Laws 2007,
provides:
     Sec.
3. The Department of State
Lands shall make the first increase in fees under section 2 (4) of this 2007
Act [196.818 (4)] on January 1, 2009. [2007 c.850 §3]
     Note: Sections 1 and 2, chapter 507, Oregon Laws
2007, provide:
     Sec.
1. (1) The Department of
State Lands shall investigate the feasibility of establishing an
     (a) The feasibility of a certification
program for professional wetland scientists;
     (b) The existence and validity of
professional wetland scientist certification programs;
     (c) The professional methods and
procedures about which a professional wetland scientist should be
knowledgeable;
     (d) The scope of an initial examination
for certification and any continuing education requirements that should be
imposed;
     (e) A recommendation of an appropriate
entity to administer the certification program; and
     (f) Recommended fees for certification as
necessary to cover the expenses of operating a certification program.
     (2) Not later than November 1, 2008, the
department shall submit a report of the findings of the study conducted under
this section, and shall include recommendations for legislation, to the interim
legislative committees on environment and natural resources. [2007 c.507 §1]
     Sec.
2. Section 1 of this 2007
Act is repealed on the date of the convening of the next regular biennial
legislative session [January 12, 2009]. [2007 c.507 §2]
     196.820
Prohibition against issuance of permits to fill
     (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]
     196.825
Criteria for issuance of permit; consultation with public bodies; hearing; appeal. (1) The Director of the Department of State
Lands shall issue a permit applied for under ORS 196.815 if the director
determines that the project described in the application:
     (a) Is consistent with the protection,
conservation and best use of the water resources of this state as specified in
ORS 196.600 to 196.905; and
     (b) Would not unreasonably interfere with
the paramount policy of this state to preserve the use of its waters for
navigation, fishing and public recreation.
     (2) In determining whether to issue a
permit, the director shall consider all of the following:
     (a) The public need for the proposed fill
or removal and the social, economic or other public benefits likely to result
from the proposed fill or removal. When the applicant for a permit is a public
body, the director may accept and rely upon the public bodyÂ’s findings as to
local public need and local public benefit.
     (b) The economic cost to the public if the
proposed fill or removal is not accomplished.
     (c) The availability of alternatives to
the project for which the fill or removal is proposed.
     (d) The availability of alternative sites
for the proposed fill or removal.
     (e) Whether the proposed fill or removal
conforms to sound policies of conservation and would not interfere with public
health and safety.
     (f) Whether the proposed fill or removal
is in conformance with existing public uses of the waters and with uses
designated for adjacent land in an acknowledged comprehensive plan and land use
regulations.
     (g) Whether the proposed fill or removal
is compatible with the acknowledged comprehensive plan and land use regulations
for the area where the proposed fill or removal is to take place or can be
conditioned on a future local approval to meet this criterion.
     (h) Whether the proposed fill or removal
is for streambank protection.
     (i) Whether the applicant has provided all
practicable mitigation to reduce the adverse effects of the proposed fill or
removal in the manner set forth in ORS 196.800. If off-site compensatory
wetland mitigation is proposed, the applicant shall document the
impracticability of on-site compensatory wetland mitigation.
     (3) The director may issue a permit for a
project that results in a substantial fill in an estuary for a nonwater
dependent use only if the project is for a public use and would satisfy a
public need that outweighs harm to navigation, fishery and recreation and if
the proposed fill meets all other criteria contained in ORS 196.600 to 196.905.
     (4) If the director issues a permit, the
director may impose such conditions as the director considers necessary to
carry out the purposes of ORS 196.805 and 196.830 and subsection (1) of this
section and to provide mitigation for the reasonably expected adverse effects
of project development. In formulating such conditions the director may request
comment from public bodies, as defined in ORS 174.109, federal agencies and
tribal governments affected by the permit. Each permit is valid only for the
time specified therein. The director shall impose, as conditions to any permit,
general authorization or wetland conservation plan, measures to provide
mitigation for the reasonably expected adverse effects of project development.
Compensatory wetland mitigation shall be limited to replacement of the
functional attributes of the lost wetland.
     (5) The director may request comment from
interested parties and adjacent property owners on any application for a
permit. The director shall furnish to any person, upon written request and at
the expense of the person who requests the copy, a copy of any application for
a permit or authorization under this section or ORS 196.850.
     (6) Any applicant whose application for a
permit or authorization has been deemed incomplete or has been denied, or who
objects to any of the conditions imposed under this section by the director,
may, within 21 days of the denial of the permit or authorization or the
imposition of any condition, request a hearing from the director. Thereupon the
director shall set the matter down for hearing, which shall be conducted as a
contested case in accordance with ORS 183.415 to 183.430, 183.440 to 183.460
and 183.470. After such hearing, the director shall enter an order containing
findings of fact and conclusions of law. The order shall rescind, affirm or
modify the directorÂ’s initial order. Appeals from the directorÂ’s final order
may be taken to the Court of Appeals in the manner provided by ORS 183.482.
     (7) Except for a permit issued under the
process set forth in ORS 517.952 to 517.989, the director shall:
     (a) Determine whether an application is
complete within 30 days from the date the Department of State Lands receives
the application. If the director determines that an application is complete,
the director shall distribute the application for comment pursuant to
subsection (4) of this section. If the director determines that the application
is not complete, the director shall notify the applicant in writing that the
application is deficient and explain, in the same notice, the deficiencies.
     (b) Issue a permit decision within 90 days
after the date the director determines that the application is complete unless:
     (A) An extension of time is granted under
subsection (9)(b) of this section; or
     (B) The applicant and the director agree
to a longer time period.
     (8) Permits issued under this section
shall be in lieu of any permit or authorization that might be required for the
same operation under ORS 164.775, 164.785, 468.020, 468.035, 468.045, 468.055,
468.060, 468.110, 468.120, 468B.005 to 468B.030 and 468B.048 to 468B.085, so
long as:
     (a) The operation is that for which the
permit or authorization is issued; and
     (b) The standards for granting the permit
or authorization are substantially the same as those established pursuant to
ORS 164.775, 164.785, 468.020, 468.035, 468.045, 468.055, 468.110, 468.120,
468B.005 to 468B.030 and 468B.048 to 468B.085 to the extent they affect water
quality.
     (9)(a) Any public body, as defined in ORS
174.109, federal agency or tribal government requested by the director to
comment on an application for a permit must submit its comments to the director
not more than 30 days after receiving the request for comment. If a public
body, federal agency or tribal government fails to comment on the application
within 30 days, the director shall assume that the public body, federal agency
or tribal government has no objection.
     (b) The Department of Environmental
Quality shall provide comments to the director within 75 days after receiving
notice under subsection (4) of this section if the permit action requires
certification under the Federal Water Pollution Control Act (P.L. 92-500), as
amended.
     (10) In determining whether to issue a
permit, the director may consider only standards and criteria in effect on the
date the director receives the completed application.
     (11) As used in this section:
     (a) “Applicant” means a landowner or
person authorized by a landowner to conduct a removal or fill activity.
     (b) “Completed application” means a signed
permit application form that contains all necessary information for the
director to determine whether to issue a permit, including:
     (A) A map showing the project site with
sufficient accuracy to easily locate the removal or fill site;
     (B) A project plan showing the project
site and proposed alterations;
     (C) The fee required under ORS 196.815;
     (D) Any changes that may be made to the
hydraulic characteristics of waters of this state and a plan to minimize or
avoid any adverse effects of those changes;
     (E) If the project may cause substantial
adverse effects on aquatic life or aquatic habitat within this state,
documentation of existing conditions and resources and identification of the
potential impact if the project is completed;
     (F) An analysis of alternatives that
evaluates practicable methods to minimize and avoid impacts to waters of this
state;
     (G) If the project is to fill or remove
material from wetlands, a wetlands mitigation plan; and
     (H) Any other information that the
director deems pertinent and necessary to make an informed decision on whether
the application complies with the policy and standards set forth in this
section. [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; 2001 c.516 §3; 2003 c.253 §§9,10;
2003 c.738 §§17a,18a; 2007 c.849 §§4,5]
     Note: See second note under 196.800. Amendments to
196.825 by sections 4 and 5, chapter 849, Oregon Laws 2007, incorporated the
provisions of section 3, chapter 516, Oregon Laws 2001, section 10, chapter
253, Oregon Laws 2003, and section 18a, chapter 738, Oregon Laws 2003,
eliminating the need for a separate version of 196.825. Section 11, chapter
516, Oregon Laws 2001, was not amended to reflect the revisions.
     196.830
Estuarine resource replacement as condition for fill or removal from estuary;
considerations; other permit conditions. (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]
     196.835
Hearing regarding issuance of permit; procedure; appeals; suspension of permit
pending appeal. 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 directorÂ’s original order. Appeals from the
directorÂ’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]
     196.840 [Formerly 541.630 and then 196.710; repealed
by 2005 c.729 §1]
     196.845
Investigations and surveys.
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]
     196.850
Waiving permit requirement in certain cases; rules; notice; review; fees; disposition
of fees. (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 of any waters of
this state or the filling of any waters of this state without a permit from the
department if the department finds that the activities subject to the general
authorization:
     (a) Are substantially similar in nature;
     (b) Would cause only minimal individual
and cumulative environmental impacts; and
     (c) Would not result in long-term harm to
water resources of the state.
     (2) A general authorization may be granted
on a statewide or other geographic basis.
     (3) The department shall condition any
general authorization upon actions necessary to minimize environmental impacts.
     (4) The department shall provide notice of
any proposed general authorization to affected federal and state agencies,
local governments, tribal 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 this section.
     (5) Any person proposing to conduct an
action under a general authorization shall:
     (a) Notify the department in writing prior
to conducting the action.
     (b) Pay the applicable fee to the
department as determined under subsection (9) of this section.
     (6) 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.
     (7) 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
the review, the department may either modify, reissue or rescind the general
authorization.
     (8) 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 the findings required by subsection (1)
of this section.
     (9) If the rule adopting a general
authorization under this section is:
     (a) For actions that result in moving less
than 50 cubic yards of material, the department may not charge a fee for the
general authorization.
     (b) For actions that result in moving 50
or more cubic yards of material, the department may establish a fee for the
general authorization. The fee may not exceed $250 and shall be based on the
cost of processing the general authorization.
     (10) The department shall credit any fee
collected under this section to the Common School Fund for use by the
department in administration of ORS 196.600 to 196.905. [1989 c.837 §9 (enacted
in lieu of 541.640); renumbered 196.850 in 1989; 2003 c.253 §11; 2007 c.849 §6]
     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, and section 7, chapter 849, Oregon Laws 2007, is
set forth for the userÂ’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 of any waters of this state or the filling of
any waters of this state without a permit from the department if the department
finds that the activities subject to the general authorization:
     (a) Are substantially similar in nature;
     (b) Would cause only minimal individual
and cumulative environmental impacts; and
     (c) Would not result in long-term harm to
water resources of the state.
     (2) A general authorization may be granted
on a statewide or other geographic basis.
     (3) The department shall condition any
general authorization upon actions necessary to minimize environmental impacts.
     (4) The department shall provide notice of
any proposed general authorization to affected federal and state agencies,
local governments, tribal 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 this section.
     (5) Any person proposing to conduct an
action under a general authorization shall:
     (a) 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.
     (b) Pay the applicable fee to the
department as determined under subsection (10) of this section.
     (6) The Director of the Department of
State Lands shall waive the requirements of subsection (5) of this section if
the director 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.
     (7) 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.
     (8) 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
the review, the department may either modify, reissue or rescind the general
authorization.
     (9) 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 the findings required by subsection (1)
of this section.
     (10) If the rule adopting a general
authorization under this section is:
     (a) For actions that result in moving less
than 50 cubic yards of material, the department may not charge a fee for the
general authorization.
     (b) For actions that result in moving 50
or more cubic yards of material, the department may establish a fee for the general
authorization. The fee may not exceed $250 and shall be based on the cost of
processing the general authorization.
     (11) The department shall credit any fee
collected under this section to the Common School Fund for use by the
department in administration of ORS 196.600 to 196.905.
     Note: See second note under 196.800.
     196.855
Noncomplying removal of material or filling as public nuisance. 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
wetland conservation plan, is a public nuisance. [Formerly 541.645 and then
196.720; 2007 c.71 §65]
     196.860
Enforcement powers of director.
(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 wetland 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 the 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 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
     (2)(a) 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 the violation presents an imminent and substantial
risk of injury, loss or damage to water resources.
     (b) 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) May not be stayed during the pendency
of a hearing conducted under paragraph (c) of this subsection.
     (c) 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.
     (d) 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.
     (e) 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 the
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 directorÂ’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; 2007 c.71 §66;
2007 c.849 §16]
     196.865
Revocation, suspension or refusal to renew permit. If the Director of the Department of State
Lands finds that a person 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;
2007 c.849 §17]
     196.870
Abatement proceedings; restraining order; injunction; public compensation. (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
     (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
     (4) The
     (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]
     196.875
Double and treble damages for destruction of public right of navigation,
fishery or recreation; costs and attorney fees. (1) If any person, 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 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 directorÂ’s expenses of
bringing such action. [Formerly 541.662 and then 196.740; 2007 c.849 §18]
     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.
     196.880
Fill under permit presumed not to affect public rights; public rights
extinguished. 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]
     196.885
Annual report of fill and removal activities; contents of report. 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]
     196.890
Civil penalties. 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]
     196.895
Imposition of civil penalties.
(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 userÂ’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.
     196.900
Schedule of civil penalties; rules; factors to be considered in imposing civil
penalties. (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]
     196.905
Applicability. (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 userÂ’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.
     196.910
Monitoring fill and removal activities; public education and information
materials; periodic reports to legislative committee. 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 appropriate
legislative committee 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; 2007
c.354 §3]
     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.
PENALTIES
     196.990
Penalties. Violation 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 userÂ’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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