2005 Oregon Code - Chapter 549 :: Chapter 549 - Drainage and Flood Control Generally
Chapter 549 — Drainage and Flood Control Generally
2005 EDITION
DRAINAGE AND FLOOD CONTROL GENERALLY
WATER LAWS
CONTRACTS WITH FEDERAL AGENCIES AS TO FLOOD CONTROL
549.010Â Â Â Â Definitions for ORS 549.020 and 549.030
549.020Â Â Â Â Contracts between counties and federal agencies
549.030Â Â Â Â Agreement by two or more counties with federal agency
DITCHES TO DRAIN LAND; FLOOD CONTROL MEASURES
549.110Â Â Â Â Application to county court for authority to build drainage ditch or levee, or to widen or straighten a stream
549.120Â Â Â Â Procedure; appointment of commissioners; order to commissioners
549.130Â Â Â Â CommissionerÂ’s oath
549.140Â Â Â Â Duties of commissioners
549.150Â Â Â Â Considering benefits in assessing damages
549.160Â Â Â Â Report of commissioners to county court; payment to landowner; recording report; construction of improvement
549.170Â Â Â Â Appeal to circuit court from assessment of damages
549.180Â Â Â Â Bringing additional water into ditch without payment of compensation prohibited; civil liability
549.190Â Â Â Â Other rights protected
IMPROVEMENT OF WATERCOURSES OR DRAINS WEST OF CASCADES
549.310Â Â Â Â Application of ORS 549.320 to 549.400
549.320Â Â Â Â Petition by landowners to drain lands or improve drains
549.330Â Â Â Â Survey of work; plats, plans; estimates of cost; assessment of damages; hearing and determination by county court
549.340Â Â Â Â Construction; functions of county surveyor or county engineer; performance by landowner
549.350Â Â Â Â Report as to work done; assessment of costs; unpaid assessments
549.360Â Â Â Â Extension of work across or under highway or railroad; duty as to construction and maintenance; cost
549.370Â Â Â Â Maintenance of work; inspection; notice to landowners; when work ordered; assessment of cost
549.380Â Â Â Â Acquisition of property necessary to improvement; condemnation; prior payment of compensation unnecessary
549.390Â Â Â Â Appeal from order authorizing work or assessing damages
549.400Â Â Â Â Obstruction, befoulment or pollution of ditch prohibited
REPAIR OF DIKES
549.510Â Â Â Â Repair of dikes protecting contiguous tracts of different owners; refusal of one owner to repair; reconstruction by other; recovery of expense
549.520Â Â Â Â Complaint to county judge of neglect to repair; notice; examination; findings; direction to delinquent owner to repair dike
549.530Â Â Â Â Entry on land by complainant to repair dike; recovery of cost of repair
549.540Â Â Â Â Dikes constructed under agreement excepted
FEDERAL FLOOD CONTROL PROJECTS
549.605Â Â Â Â Definitions for ORS 549.605 to 549.645
549.610Â Â Â Â Water Resources Commission to participate on behalf of state in federal flood control projects; powers and duties of commission
549.615Â Â Â Â Entering upon land
549.620Â Â Â Â Acquisition of property
549.625Â Â Â Â Powers of commission with respect to its property
549.630Â Â Â Â Operation and maintenance of projects
549.635Â Â Â Â Agreements by commission with federal government, public and quasi-public bodies or other persons for joint participation or aid
549.640Â Â Â Â Disposition of moneys received by commission
549.645Â Â Â Â Waiver of stateÂ’s immunity to suit or action
POWERS OF CERTAIN COUNTIES WITH RESPECT TO WATER CONSERVATION AND FLOOD CONTROL
549.710Â Â Â Â Powers of counties over 50,000 population with respect to water conservation and flood control
549.720Â Â Â Â Procedure for removing or destroying drifts and drifting materials
549.730Â Â Â Â Budgeting and appropriating money for water conservation and flood control
PENALTIES
549.990Â Â Â Â Penalties
CONTRACTS WITH FEDERAL AGENCIES AS TO FLOOD CONTROL
     549.010
Definitions for ORS 549.020 and 549.030. As used in ORS 549.020 and
549.030, unless a different meaning appears from the context:
     (1) “Federal agency” includes the United States, the President of the United States, and any agency or instrumentality of the United States which is designated, granted or authorized to engage in the building, construction and maintaining of flood control projects on any lakes, rivers or streams within Oregon.
     (2) “Board of commissioners” means the governing body of any county in the state, whether the same consists of two county commissioners and the county judge or three commissioners.
     (3) “Contract” includes contracts and agreements in the customary form; also a commitment by a federal agency by which it undertakes to make or engage in the construction of works for the purpose of controlling floods, and the terms, conditions and restrictions therein set forth.
     (4) “Flood control project” means any plan, system, manner or means for the control, diversion, conservation or abatement of floodwaters or any excessive or unusual accumulation of water in any natural or artificial stream or body of water, or for protection of life and property against danger, menace, injury or damage resulting therefrom.
     549.020
Contracts between counties and federal agencies. Any county may make
contracts with any federal agency containing such terms, provisions and
conditions as, in the discretion of the board of commissioners, may be
necessary, proper or advisable for the purpose of meeting the conditions
necessary in the construction of flood control projects as provided in any
federal flood control Acts wherein the federal government is entirely financing
such projects.
     549.030
Agreement by two or more counties with federal agency. If two or more
counties in the state desire jointly or severally to make any agreement with
federal agencies relative to flood control, they may enter into such agreements
with any agency named in ORS 549.010 in accordance with all the provisions
stated in ORS 549.010 and 549.020 that will facilitate cooperative action
between boards of commissioners and federal agencies to meet conditions of any
federal flood control Acts wherein the federal government is entirely financing
such projects.
DITCHES TO DRAIN LAND; FLOOD CONTROL MEASURES
     549.110
Application to county court for authority to build drainage ditch or levee, or
to widen or straighten a stream. (1) When any person owns land which
requires draining, or any incorporated city in which there is any ditch,
standing water or surplus water requiring draining has no means of draining
such ditch, standing water or surplus water, and objection is made by the
owners of adjacent land to the construction thereon or thereover of necessary
means of drainage, such person or city may make application in writing to the
county court of the county in which such land or city is situated, for the
right of way or privilege to cut or dig or construct sufficient means of
drainage over the adjacent land.
     (2) Likewise any person or municipal corporation whose land is so situated that it is injured or liable to be injured by floodwaters from any natural stream flowing through or near the land may make application to the county court for the right to enlarge or straighten the bed of such natural stream, or strengthen or build up the banks so as to protect such lands from overflow or injury.
     549.120
Procedure; appointment of commissioners; order to commissioners. Thereupon
the court shall appoint three disinterested householders of the county as a
commission and shall issue an order directing them to meet on a day named in
the order, after subscribing to an oath or affirmation to faithfully and
impartially discharge the duties of their appointment. At least three daysÂ’
notice of the time and place of the meeting shall be given to all persons
through whose lands the ditch is to be located or upon whose lands the natural
stream is to be straightened, enlarged, or its banks are to be strengthened or
built up.
     549.130
CommissionerÂ’s oath. In the absence of an officer authorized to administer
oaths, the commissioners may administer the oath to each other.
     549.140
Duties of commissioners. The commissioners shall proceed to locate and mark
out the route of the ditch so as to do the least damage to the lands the ditch
passes through, or to designate the location, character and extent of the work
to be done in straightening the bed or building up the banks of the stream, and
shall at the same time assess the damages sustained by the person owning the
land.
     549.150
Considering benefits in assessing damages. In assessing damages, the
commissioners shall take into consideration all benefits which will accrue to
the lands from the work contemplated.
     549.160
Report of commissioners to county court; payment to landowner; recording
report; construction of improvement. The commissioners, or a majority of
them, shall make a report to the county court at the next regular session
thereof, stating the location of the ditch or other work contemplated, the name
of the person entitled to damage, and the amount, if any is assessed. If the
county court is satisfied that the report is just, and after payment by the
applicant for the right of way of all costs of locating such ditch or other
work, and the damages, if any are assessed, the court shall cause the same to
be recorded. The applicant then may proceed to make such ditch, or do such work
of straightening the stream or building up or straightening the banks thereof,
doing as little damage to the land it passes through as possible.
     549.170
Appeal to circuit court from assessment of damages. Any person aggrieved by
the assessment of damages may appeal within 20 days to the circuit court.
     549.180
Bringing additional water into ditch without payment of compensation
prohibited; civil liability. No person shall tap or bring additional water
into any drainage district or drainage district ditch already dug without paying
a reasonable compensation therefor and securing the written permission of
district officials. The criminal penalty for violation of this section shall
not relieve the defendant from civil liability for damages.
     549.190
Other rights protected. ORS 549.110 to 549.180 shall not be construed so as
to interfere with the rights of companies or individuals for mining,
manufacturing, or watering towns or cities.
IMPROVEMENT OF WATERCOURSES OR DRAINS WEST OF CASCADES
     549.310
Application of ORS 549.320 to 549.400. ORS 549.320 to 549.400 shall not be
construed to interfere with or to prevent the right or power to construct
drainage ditches under any other statute of this state, and shall apply only to
that portion of the state lying west of the Cascade Mountains.
     549.320
Petition by landowners to drain lands or improve drains. Whenever 60
percent or more of the owners of land contiguous to and crossed by some
watercourse or drain desire to have such lands drained or such natural course
or drain straightened, altered, widened or deepened, they may petition the
county court of the county in which the land is situated for such improvement,
describing all property affected thereby and giving the names of the owners
thereof. Upon the filing of the petition the county court shall ascertain
whether 60 percent or more of the owners of land affected have signed the
petition, and if so, shall make a finding to that effect.
     549.330
Survey of work; plats, plans; estimates of cost; assessment of damages; hearing
and determination by county court. The county court shall direct the county
surveyor, or county engineer if the county employs a registered professional
engineer, to make a survey of the work contemplated to be done and prepare
plats, plans, profiles and estimates of cost of the work to be done, and shall
assess the damage sustained by any person owning any land affected by such
improvement, taking into consideration all benefits which will accrue from the
work contemplated to be done to the land. The county surveyor, or county
engineer, shall file with the county clerk the plats, plans, profiles,
estimates of cost, and assessment of damages. Not less than 30 nor more than 60
days after the county surveyor, or county engineer, has filed the data with the
county clerk, the county court shall hold a hearing, of which at least 10 daysÂ’
notice shall be given to all landowners affected, and to the authority which
maintains any highway and to the owners of any railroad or tramway through
which or under which any conduit is to be constructed, by publishing the same
once a week for two successive weeks in a newspaper of general circulation in
the county. At the hearing the county court shall hear evidence in support of
the petition and in support of any protest or objection thereto, and after
consideration shall determine whether it is to the interest and benefit of the
land affected and conducive to the public welfare to grant the petition for the
improvement. [Amended by 1965 c.287 §1]
     549.340
Construction; functions of county surveyor or county engineer; performance by
landowner. If the county court authorizes the improvement, it shall be done
under the direction and supervision of the county surveyor, or the county
engineer, who shall set all necessary grade stakes and bench marks. The owner
of any of the lands through which or on which any portion of the improvement is
to be constructed may, at the expense of the owner, perform such construction
work under the supervision of the county surveyor, or the county engineer. If
the owner does not elect to do such work, it shall be done by the county under
the direction and supervision of the county surveyor, or the county engineer.
[Amended by 1965 c.287 §2]
     549.350
Report as to work done; assessment of costs; unpaid assessments. On the
completion of the work by the county, the county surveyor or the county
engineer shall make and file with the county clerk a report showing in detail
the work done on each parcel of land separately owned, the names of the owners,
and the amount of costs to each such parcel of land. The cost shall be assessed
against the owner of the lands by the county court. Any unpaid assessment may
be recorded with the county clerk in any county of this state. The clerk shall
thereupon record the name of the person incurring the assessment and the amount
of the assessment in the County Clerk Lien Record. [Amended by 1965 c.287 §3;
1991 c.459 §427]
     549.360
Extension of work across or under highway or railroad; duty as to construction
and maintenance; cost. The drainage work may be extended across or under
any highway and may also be carried under or through any railroad or tramway.
The authority which maintains the highway through which the conduit crosses
shall construct and maintain the same in good condition and repair, free from
obstruction, at its own expense. The owner of the railroad or tramway under or
through which the conduit is to be constructed shall construct and maintain the
same in good condition and repair, free from obstruction, at its own expense.
     549.370
Maintenance of work; inspection; notice to landowners; when work ordered;
assessment of cost. At least one member of the county court in the fall of
each year shall inspect the improvements constructed under the provisions of
ORS 549.310 to 549.400, for the purpose of ascertaining whether or not they
have been properly maintained and are in a good and serviceable condition. If
it is found that the works are not properly maintained or are not in a good and
serviceable condition either in whole or in part, the county court shall give
notice in writing to the owner of land upon which it was found that the works
are not properly maintained or are not in a good and serviceable condition,
which notice shall set forth the necessary work to be done and the time of
beginning and completion of the same. In the event the owner fails to comply
with the conditions set forth in the notice, the county court shall order the
necessary work to be done and assess the cost against the land upon which the
work was done in the manner provided in ORS 549.350.
     549.380
Acquisition of property necessary to improvement; condemnation; prior payment
of compensation unnecessary. Whenever a county court finds it necessary, in
order to carry out any of the purposes mentioned in ORS 549.310 to 549.370, to
condemn, acquire or appropriate any land, property or right of any nature, it
shall so declare its intention by resolution spread on the records of the
court, setting out the necessity that exists. If it is unable to agree with the
owner for the purchase of such land, property or right, the district attorney
for the county, upon request of the county court, shall commence and prosecute
in any court of competent jurisdiction, in the name of the county, any
necessary suit, action or proceeding for the condemnation of such land,
property or right, for such public use. The procedure in such suit, action or
proceeding shall be, as far as applicable, the procedure provided by law for
the condemnation of lands or rights of way by public or quasi-public
corporations for public use or for corporate purposes; provided, nothing in
this section shall be construed to require the county to make or tender
compensation prior to the condemnation and taking possession of such land,
property or right.
     549.390
Appeal from order authorizing work or assessing damages. Any person
aggrieved by any order pursuant to the provisions of ORS 549.310 to 549.400
authorizing any construction work or by the assessment of any damages, may
appeal to the circuit court within 20 days from the date when the county court
approved such improvement. From the judgment of the circuit court an appeal to
the Court of Appeals may be taken in the manner provided for appeals in civil
proceedings. [Amended by 1979 c.562 §26]
     549.400
Obstruction, befoulment or pollution of ditch prohibited. No person shall
throw, dump, place or allow to be thrown, dumped or placed, any rubbish, refuse
or any article or thing in any ditch, lateral, canal, slough, waterway or
conduit constructed, operated or maintained under the provisions of ORS 549.310
to 549.390, or befoul, pollute or allow to be befouled or polluted any such
ditch, lateral, canal, slough or conduit.
REPAIR OF DIKES
     549.510
Repair of dikes protecting contiguous tracts of different owners; refusal of
one owner to repair; reconstruction by other; recovery of expense. Whenever
two or more contiguous tracts of land, not in a diking district, the property
of separate owners, have been protected by a common dike or by separate dikes
so constructed as to afford a common benefit to the lands affected thereby, or
upon which the dike has been constructed, and any portion of the dike has
become broken or destroyed or in such condition of repair that the lands
intended to be benefited and protected by the dike are being injured by reason
of its broken, destroyed or other bad condition, and the owner of the land upon
which the broken or destroyed dike is located refuses to rebuild, repair,
reconstruct or otherwise improve the same so as to afford the proper protection
and benefit to the land, the owners of the other contiguous tracts may attempt
to agree with the owner of the land upon which the dike in question is located,
with reference to its repair, reconstruction or rebuilding. If the owner
refuses to rebuild, reconstruct or repair the dike, the owners of the other
contiguous tracts of land affected by the dike and upon whose land the dikes
are in a good condition of repair, may reconstruct, rebuild or repair the
broken or destroyed dike and shall be entitled, by action in any court having
jurisdiction, to recover from the delinquent owner the reasonable value of the
material furnished and labor used in rebuilding, reconstructing or repairing
the same, together with the cost and disbursements of such action. The action
shall be prosecuted in the name of the owners and against the delinquent party.
Any party to the action is entitled to a jury trial.
     549.520
Complaint to county judge of neglect to repair; notice; examination; findings;
direction to delinquent owner to repair dike. If anyone neglects to repair,
rebuild or reconstruct a dike as specified in ORS 549.510, the owners of the
contiguous tracts of land may complain to the county judge of the county in
which the lands or some portion thereof are situated, who, after due notice,
shall examine the premises. If the county judge determines that the dike is in
need of reconstruction, rebuilding or repair, and that the dike is of
sufficient benefit to the lands affected thereby to warrant its maintenance,
and if the county judge finds that the dikes on the other contiguous tracts
owned by the persons complaining are in a good state of repair, the county
judge shall so signify in writing and shall cause to be served upon the
delinquent owner a copy of such finding and shall direct the owner to rebuild,
reconstruct or repair the dike within such time as the judge determines to be
reasonable.
     549.530
Entry on land by complainant to repair dike; recovery of cost of repair. If
such dike is not repaired or rebuilt accordingly, the complainants may repair
or rebuild the dike, and for that purpose may go upon the premises where the
destroyed or broken dike is located, doing as little damage as possible
thereto, and may recover the value or cost of rebuilding, reconstructing or
repairing the dike from the delinquent owner, before any court having
jurisdiction.
     549.540
Dikes constructed under agreement excepted. The provisions of ORS 549.510
to 549.530 shall not apply to dikes constructed under agreement between the
owners of contiguous tracts of land, under which agreement the maintenance of
the dike is provided for.
FEDERAL FLOOD CONTROL PROJECTS
     549.605
Definitions for ORS 549.605 to 549.645. As used in ORS 549.605 to 549.645,
unless the context requires otherwise:
     (1) “Commission” means the Water Resources Commission.
     (2) “Federal flood control projects” includes all authorized federal projects located wholly or partially within this state which the commission determines would be beneficial to this state as flood control measures.
     (3) “Federal government” means the United States, or any agency or instrumentality of the United States which is designated or authorized to engage in flood control projects within Oregon. [1957 c.466 §1]
     549.610
Water Resources Commission to participate on behalf of state in federal flood
control projects; powers and duties of commission. The Water Resources
Commission is directed to carry out, for and on behalf of the state, the
stateÂ’s participation in federal flood control projects. In discharging this
responsibility, the commission, or one or more of its members or employees
designated by the commission to represent it, may sign agreements with the
federal government and other persons, to integrate, if possible, into the
federal project necessary or desirable state or local features and works, to
relocate facilities displaced by such projects and to perform all other acts
connected with and necessary to such participation. Work to be done by the
state may be carried out by contract or by available state forces or by a
combination of these two methods. If the commission deems it to be in the
public interest, they may agree with public or quasi-public bodies and other
persons affected by such projects to have such bodies or persons perform the
work. The commission shall, in all instances, carry out the powers and duties
imposed upon it by ORS 549.605 to 549.645 in a manner which will comply with
federal flood control legislation and rules and regulations promulgated
pursuant to such legislation. [1957 c.466 §2]
     549.615
Entering upon land. The Water Resources Commission and its agents and
employees may enter upon lands to gather information when necessary for the
performance of those duties imposed upon them by ORS 549.605 to 549.645. [1957
c.466 §3]
     549.620
Acquisition of property. The Water Resources Commission may acquire
property, as defined in ORS 35.550 (1), by purchase, donation or condemnation
in the manner provided in ORS 35.550 to 35.575, when necessary to carry out the
duties assigned it by ORS 549.610. [1957 c.466 §4]
     549.625
Powers of commission with respect to its property. As to any property
acquired pursuant to ORS 549.605 to 549.645, the Water Resources Commission may
sell, donate, exchange or lease it or grant easements thereon, on terms which
are beneficial to the state and meet all federal flood control project requirements;
and the commission, or one or more of its members or employees designated by
the commission to represent it, may execute and deliver, in the name of the
State of Oregon, a lease, deed or other instrument of conveyance of such
property. These leases, deeds and instruments may contain such reservations as
the commission deems necessary to protect the interests of the state in flood
control. [1957 c.466 §5]
     549.630
Operation and maintenance of projects. After the completion of a flood
control project or a portion thereof and, in the case of projects constructed
by the federal government, after such project or a useful portion thereof has
been turned over to the state by the federal government, such projects may be
operated and maintained by the Water Resources Commission for the primary
purpose of flood control; or, when the commission deems such action to be in
the public interest, the commission may enter into agreements with public or
quasi-public bodies and other persons to operate and maintain such projects.
[1957 c.466 §6]
     549.635
Agreements by commission with federal government, public and quasi-public
bodies or other persons for joint participation or aid. The Water Resources
Commission may enter into agreements with the federal government, public and
quasi-public bodies, including but not limited to drainage and irrigation
districts organized under the laws of Oregon, water control districts and
subdistricts formed under ORS chapter 553 and district improvement companies
formed under ORS chapter 554, and other persons for the purpose of
participating jointly with such bodies or persons in federal flood control
projects or aiding such bodies or persons in meeting obligations imposed upon
them in connection with federal flood control project agreements. The
commission shall not aid or agree to aid any public or quasi-public body or
person unless such body or person is meeting satisfactorily or to the best of
its ability all obligations imposed upon it under such agreements. [1957 c.466
§7]
     549.640
Disposition of moneys received by commission. Except as provided in ORS
536.500, all moneys received by the Water Resources Commission under the
provisions of ORS 549.605 to 549.645, including any allotment of moneys from
the federal government to reimburse the state for expenditures made in
connection with a flood control project, shall be turned over to the State
Treasurer to be placed in the State Treasury to the credit of the General Fund.
[1957 c.466 §8]
     549.645
Waiver of stateÂ’s immunity to suit or action. Except upon contracts
providing for arbitration under the provisions of ORS 36.600 to 36.740, a suit
or action may be maintained against the State of Oregon through and in the name
of the Water Resources Commission for an injury to the rights of the plaintiff
arising from some act or omission attributable to the Water Resources
Commission acting as authorized by ORS 549.605 to 549.645. [1957 c.466 §9; 2003
c.598 §46]
POWERS OF CERTAIN COUNTIES WITH RESPECT TO WATER CONSERVATION AND FLOOD CONTROL
     549.710
Powers of counties over 50,000 population with respect to water conservation
and flood control. In any county having a population in excess of 50,000,
according to the latest federal decennial census, the county court or board of
county commissioners may:
     (1) Carry out surveys and plan and engage in projects relating to water conservation and flood control.
     (2) Contract and cooperate with federal and state agencies, with other counties and with other public corporations in making surveys and planning and engaging in projects relating to water conservation and flood control.
     (3) Provide lands and rights of way, operate and maintain flood control projects and do such other things as are necessary for county participation in federal flood control and water conservation projects.
     (4) Remove or destroy drifts and drifting material in rivers and streams or on land that has been flooded. [1957 c.296 §1]
     549.720
Procedure for removing or destroying drifts and drifting materials. When
removing or destroying drifts or drifting material in rivers or streams or on
land that has been flooded the county shall:
     (1) Have the right to enter upon any land for purposes of inspection, removal and destruction of drifts and drifting material.
     (2) Give reasonable notice to owners of salvable material that the county has salvaged their property and that if such property has not been reclaimed or arrangements made for its removal within a reasonable time but in no event less than 30 days the county will dispose of the property by sale and, after deducting the amount necessary to reimburse the county for removal costs, hold the balance for one year for the owner. If, at the end of that time, the balance remains unclaimed it shall be placed in the general fund of the county. The county may hold any salvable material until the owner has reimbursed the county for removal costs. [1957 c.296 §2]
     549.730
Budgeting and appropriating money for water conservation and flood control.
The county court of each county may include in its budget and appropriate out
of moneys in the general fund of the county not otherwise appropriated, an
amount for the purposes of ORS 549.710 to 549.730. Out of the amount so
appropriated the county court may set aside an amount, not to exceed one-half
of the annual appropriation, to be placed in a special fund to be expended for
emergency purposes or for future water conservation and flood control programs.
[1957 c.296 §3; 1981 c.416 §11]
PENALTIES
     549.990
Penalties. (1) Subject to ORS 153.022, violation of ORS 549.180 is a Class
D violation, and the violator shall be compelled to restore the drainage to the
condition previously existing.
     (2) Violation of ORS 549.400 is punishable, upon conviction, by a fine of not less than $10 nor more than $25, or by imprisonment in the county jail for not more than 10 days, or both. Justice courts shall have concurrent jurisdiction with the circuit court over violations of ORS 549.400. [Amended by 1999 c.1051 §197]
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