Bill Text: OR HB2189 | 2011 | Regular Session | Enrolled
Bill Title: Relating to removal-fill permitting program.
Sponsorship: Unknown
Status: (Passed) 2011-04-12 - Chapter 16, (2011 Laws): Effective date January 1, 2012. [HB2189 Detail]
Download: Oregon-2011-HB2189-Enrolled.html
76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session
Enrolled
House Bill 2189
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of House Interim Committee on
Environment and Water)
CHAPTER ................
AN ACT
Relating to removal-fill permitting program; creating new
provisions; and amending ORS 196.905.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 196.905 is amended to read:
196.905. (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, planting,
cultivating, conventional crop rotation or harvesting.
(4) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, on lands zoned for exclusive farm use as
described in ORS 215.203 for the following activities:
(a) Drainage or maintenance of farm or stock ponds; or
(b) Maintenance of farm roads in such a manner as to not
significantly adversely affect wetlands or any other waters of
this state.
(5) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, for subsurface drainage by deep ripping, tiling
or moling on converted wetlands that are zoned for exclusive farm
use pursuant to ORS 215.203.
(6) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, for any activity defined as a farm use in ORS
215.203, on lands zoned for exclusive farm use pursuant to ORS
215.203, if the lands are converted wetlands that are also
certified as prior converted cropland by the Natural Resources
Conservation Service of the United States Department of
Enrolled House Bill 2189 (HB 2189-INTRO) Page 1
Agriculture, or its successor agency, so long as commercial
agricultural production on the land has not been abandoned for
five or more years.
(7) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, for the reestablishment of crops under federal
conservation reserve program provisions set forth in 16 U.S.C.
3831 as in effect on January 1, 2010.
(8) The exemptions in subsections (3) to (7) of this section do
not apply to any fill or removal that involves changing an area
of wetlands to a nonfarm use.
(9) 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.
(10) 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.
(11) The Department of State Lands may adopt a rule that
exempts from the requirement to obtain a permit under ORS 196.800
to 196.900 voluntary habitat restoration projects that have only
minimal adverse impact on waters of this state.
{ + (12) Nothing in ORS 196.800 to 196.900 applies to removal
or filling, or both, for a change in the point of diversion to
withdraw surface water for beneficial use if the change in the
point of diversion is necessitated by a change in the location of
the surface water and authorized by the Water Resources
Department. + }
{ - (12) - } { + (13) + } As used in this section:
(a) 'Converted wetlands' means agriculturally managed wetlands
that, on or before June 30, 1989, were brought into commercial
agricultural production by diking, draining, leveling, filling or
any similar hydrologic manipulation and by removal or
manipulation of natural vegetation, and that are managed for
commercial agricultural purposes.
(b) 'Converted wetlands' does not include any stream, slough,
ditched creek, spring, lake or any other waters of this state
that are located within or adjacent to a converted wetland area.
SECTION 2. ORS 196.905, as amended by section 6, chapter 516,
Oregon Laws 2001, section 13, chapter 253, Oregon Laws 2003, and
section 4, chapter 342, Oregon Laws 2009, is amended to read:
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
Enrolled House Bill 2189 (HB 2189-INTRO) Page 2
(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, planting,
cultivating, conventional crop rotation or harvesting.
(4) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, on lands zoned for exclusive farm use as
described in ORS 215.203 for the following activities:
(a) Drainage or maintenance of farm or stock ponds; or
(b) 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.
(5) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, for any activity defined as a farm use in ORS
215.203, on lands zoned for exclusive farm use pursuant to ORS
215.203, if the lands are converted wetlands that are also
certified as prior converted cropland by the Natural Resources
Conservation Service of the United States Department of
Agriculture, or its successor agency, so long as commercial
agricultural production on the land has not been abandoned for
five or more years.
(6) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, for the reestablishment of crops under federal
conservation reserve program provisions set forth in 16 U.S.C.
3831 as in effect on January 1, 2010.
(7) The exemptions in subsections (3) to (6) of this section do
not apply to any fill or removal that involves changing an area
of wetlands or converted wetlands to a nonfarm use.
(8) 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.
(9) 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:
Enrolled House Bill 2189 (HB 2189-INTRO) Page 3
(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.
(10) 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.
(11) 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.
(12) The department may adopt a rule that exempts from the
requirement to obtain a permit under ORS 196.800 to 196.900
voluntary habitat restoration projects that have only minimal
adverse impact on waters of this state.
{ + (13) Nothing in ORS 196.800 to 196.900 applies to removal
or filling, or both, for a change in the point of diversion to
withdraw surface water for beneficial use if the change in the
point of diversion is necessitated by a change in the location of
the surface water and authorized by the Water Resources
Department. + }
{ - (13) - } { + (14) + } As used in this section:
(a)(A) 'Converted wetlands' means agriculturally managed
wetlands that, on or before June 30, 1989, were brought into
commercial agricultural production by diking, draining, leveling,
filling or any similar hydrologic manipulation and by removal or
manipulation of natural vegetation, and that are managed for
commercial agricultural purposes.
(B) 'Converted wetlands' does not include any stream, slough,
ditched creek, spring, lake or any other waters of this state
that are located within or adjacent to a converted wetland area.
(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.
Enrolled House Bill 2189 (HB 2189-INTRO) Page 4
(d) 'Seeding' means the sowing of seed or placement of
seedlings to produce crops or other agricultural products.
SECTION 3. { + The amendments to ORS 196.905 by sections 1 and
2 of this 2011 Act apply only to permits first applied for or
permits renewed on or after the effective date of this 2011
Act. + }
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Passed by House February 16, 2011
.............................................................
Ramona Kenady Line, Chief Clerk of House
.............................................................
Bruce Hanna, Speaker of House
.............................................................
Arnie Roblan, Speaker of House
Passed by Senate March 31, 2011
.............................................................
Peter Courtney, President of Senate
Enrolled House Bill 2189 (HB 2189-INTRO) Page 5
Received by Governor:
......M.,............., 2011
Approved:
......M.,............., 2011
.............................................................
John Kitzhaber, Governor
Filed in Office of Secretary of State:
......M.,............., 2011
.............................................................
Kate Brown, Secretary of State
Enrolled House Bill 2189 (HB 2189-INTRO) Page 6
