Bill Text: OR HB2206 | 2011 | Regular Session | Introduced

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Bill Title: Relating to removal-fill permitting program; declaring an emergency.

Spectrum: Unknown

Status: (Failed) 2011-06-30 - In committee upon adjournment. [HB2206 Detail]

Download: Oregon-2011-HB2206-Introduced.html

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     76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session

NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .

LC 1889

                         House Bill 2206

Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
  Presession filed (at the request of House Interim Committee on
  Sustainability and Economic Development)

                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.

  Expands definition of 'applicant' for purposes of removal-fill
permitting program. Specifies procedures by which applicant that
proposes removal or fill activity for construction of linear
facility may receive and use removal-fill permit.
  Declares emergency, effective on passage.

                        A BILL FOR AN ACT
Relating to removal-fill permitting program; creating new
  provisions; amending ORS 196.620, 196.643, 196.682, 196.686 and
  196.825; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 196.825 is amended to read:
  196.825. (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) If the director issues a permit applied for under ORS
196.815 to a person that proposes a removal or fill activity for
construction of a linear facility, and if that person is not a
landowner or a person authorized by a landowner to conduct the
proposed removal or fill activity on a property, then the person
may not conduct removal or fill activity on that property until
the person obtains:
  (a) The landowner's consent;
  (b) A right, title or interest with respect to the property
that is sufficient to undertake the removal or fill activity; or
  (c) A court order or judgment authorizing the use of the
property. + }
    { - (2) - }   { + (3) + } 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
body'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. In determining
whether the applicant has provided all practicable mitigation,
the director shall consider the findings regarding wetlands set
forth in ORS 196.668 and whether the proposed mitigation advances
the policy objectives for the protection of wetlands set forth in
ORS 196.672.
    { - (3) - }   { + (4) + } 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) - }   { + (5) + } If the director issues a permit,
the director may impose such conditions as the director considers
necessary to carry out the purposes of ORS 196.805 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 mitigation shall be limited to replacement of the
functions and values of the impacted water resources of this
state.
    { - (5) - }   { + (6)(a) + } The director may request comment
from interested parties and adjacent property owners on any
application for a permit.
   { +  (b) + } 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.
   { +  (c) For permit applications for a removal or fill
activity for construction of a linear facility that are deemed
complete by the director, the director shall notify by
first-class mail, electronic mail or electronic facsimile
transmission all landowners whose land is identified in the
permit application and all landowners whose land is adjacent to
the property of a landowner whose land is identified in the
permit application. + }

    { - (6) - }   { + (7)(a) + } 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
director's initial order.  Appeals from the director's final
order may be taken to the Court of Appeals in the manner provided
by ORS 183.482.
   { +  (b) If the director issues a permit for a removal or fill
activity for construction of a linear facility, any person
aggrieved or adversely affected by the issuance of the permit
may, within 21 days of the issuance of the permit, request a
hearing from the director in accordance with ORS 196.835. + }
    { - (7) - }   { + (8) + } 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) - }   { + (5) + } of
this section.  { + If the owners of 10 or more properties
affected by an application for a permit for a removal or fill
activity for construction of a linear facility make a written
request to the director for a public hearing, the director shall
conduct a public hearing to gather additional information
regarding the application. + } 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) - }  { + (10)(b) + } of this section; or
  (B) The applicant and the director agree to a longer time
period.
    { - (8) - }   { + (9) + } 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) - }   { + (10)(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) - }   { + (5) + } of this section if

the permit action requires certification under the Federal Water
Pollution Control Act (P.L. 92-500), as amended.
    { - (10) - }   { + (11) + } 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) - }   { + (12) + } As used in this section:
  (a) 'Applicant' means a landowner { + , a + }   { - or - }
person authorized by a landowner to conduct a removal or fill
activity  { + or a person that proposes a removal or fill
activity for construction of a linear facility + }.
  (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.
   { +  (c) 'Linear facility' includes any railway, highway,
road, pipeline, communication line, power line or similar
facility used for the transportation of people, goods or
substances or the transmission of energy. + }
  SECTION 2. ORS 196.620 is amended to read:
  196.620. (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) - }  { +  (5) + }, for any other authorization issued in
accordance with ORS 196.800 to 196.905 or to resolve a violation
of ORS 196.800 to 196.905. 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 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 determines 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 unless the director determines
that it is environmentally preferable to exceed this limitation.
  (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, enhancement or
preservation actions to establish other 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 functions and values of the
mitigation bank site are equal to or greater than the functions
and values of the area to be impacted or that the functions and
values of the mitigation bank compensate for unavoidable adverse
effects on the waters of this state due to the activities
otherwise allowed under ORS 196.600 to 196.905.
  (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 functions and values created within each
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;
  (b) The mitigation bank site for which credits are proposed to
be withdrawn is not sufficiently similar in functions and values
to the area to be impacted; or
  (c) The functions and values of the mitigation bank do not
compensate for unavoidable adverse effects on the waters of this
state due to the activities otherwise allowed under ORS 196.600
to 196.905.
  SECTION 3. ORS 196.643 is amended to read:
  196.643. A person who provides off-site compensatory mitigation
in order to comply with a condition imposed on a permit in
accordance with ORS 196.825   { - (4) - }  { +  (5) + }, an
authorization issued in accordance with ORS 196.800 to 196.905 or
a resolution of a violation of ORS 196.800 to 196.905 may make a
payment for credits to an approved mitigation bank with available
credits, or to the Oregon Removal-Fill Mitigation Fund, if
credits from a mitigation bank are not available. If the person
is making a payment to the Oregon Removal-Fill Mitigation Fund,
the payment shall be equal to the average cost of credits
available from all active mitigation banks in the state.
  SECTION 4. ORS 196.682 is amended to read:
  196.682. (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) - }  { +  (3) + }, the
Department of State Lands shall issue a permit if the removal or
fill, or both, is consistent with the wetland conservation plan
or can be conditioned to be consistent with the plan. The
department shall condition any such permit as necessary to 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,
enhancement or preservation measures are implemented to fully
replace impacted resources.
  (2) In any order approving a plan that 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.
  SECTION 5. ORS 196.686 is amended to read:
  196.686. (1) For the purposes of this section, an acknowledged
estuary management plan includes the comprehensive plan and land
use regulations adopted by cities and counties to satisfy the
requirement of statewide planning goals related to estuarine
resources including shoreland portions of estuarine sites
designated for development as those plans and regulations existed
on January 1, 1989.
  (2) Any city or county may submit an acknowledged estuary
management plan for review and approval by the Department of
State Lands pursuant to the provisions of this section. The plan
shall be submitted with a written request for review.
  (3) To allow timely and effective review of acknowledged
estuary management plans, the department may limit acceptance for
review to two plans but not more than one plan for a deep draft
development estuary at any one time.
  (4) With the consent of the city or county submitting an
estuary management plan for review and approval, the department
may extend any or all of the deadlines set forth in this section.
  (5) Acknowledged estuary management plans shall be presumed to
comply with requirements for approval of wetland conservation
plans specified in ORS 196.681.
  (6) Within 10 days of acceptance of a request for review, the
department shall provide notice to affected state agencies, local
governments, federal agencies and the public of receipt of the
acknowledged estuary management plan and of the request for
review and approval of the acknowledged estuary management plan
as a wetland conservation plan.
  (7) Within 30 days of acceptance of a request for review and
upon provision of at least two weeks' notice, the department
shall hold a public informational hearing on the proposed
approval of the acknowledged estuary management plan as a wetland
conservation plan.
  (8) Within 60 days of acceptance of the request for review, the
department shall conduct a preliminary review of the acknowledged
estuary management plan. The department shall consult with the
affected local government prior to finalizing the preliminary
review.
  (9) Except as provided in subsection (10) of this section, the
Director of the Department of State Lands shall approve the
acknowledged estuary management plan by order within 60 days of
completion of the preliminary review.

  (10) A contested case hearing shall be held within 30 days of
the completion of the preliminary review or receipt of a request
for hearing if:
  (a) The director determines there is probable cause to believe
that the estuary management plan does not meet the standards for
approving wetland conservation plans or unreasonably interferes
with the use of the estuary for navigation, fisheries or public
recreation; or
  (b) A hearing is requested and the request:
  (A) Is made in writing within 60 days of the date of mailing of
notice of completion of review;
  (B) Clearly states the reasons for requesting the hearing; and
  (C) Provides sufficient information for the director to
determine that there is probable cause to believe that the
estuary management plan does not meet the standards for approving
wetland conservation plans or unreasonably interferes with the
use of the estuary for navigation, fisheries or public
recreation.
  (11) The director shall approve the acknowledged estuary
management plan as a wetland conservation plan by order unless
the director finds by a preponderance of the evidence that the
estuary management plan does not meet the standards for approving
wetland conservation plans or unreasonably interferes with the
use of the estuary for navigation, fisheries or public recreation
or that substantial fills proposed in an estuary management plan
for nonwater dependent use are not for a public use and would not
satisfy a public need that outweighs harm to navigation,
fisheries or public recreation.
  (12) The director shall prepare a proposed order for review by
the parties within 30 days of any contested case hearing held
pursuant to subsection (10) of this section.
  (13) A final order from the director that recommends, pursuant
to subsection (8) of this section, denial of an estuary
management plan as a wetland conservation plan shall identify
deficient elements and provisions of the acknowledged estuary
management plan and what measures may be taken to correct those
deficiencies.
  (14) Individual permit applications shall be required for
removal or fill, or both, in areas subject to an approved estuary
management plan. Individual permit applications shall be reviewed
in accordance with ORS 196.815, 196.825, 196.830 and 196.835. In
lieu of the substantive standards for permit issuance in ORS
196.825   { - (2) - }  { +  (3) + }, the department shall issue a
permit if the removal or fill, or both, is determined by the
director to be consistent with the estuary management plan or can
be conditioned to be consistent with the plan. The department
shall condition any such permit as necessary to 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, enhancement or preservation 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.
  SECTION 6.  { + The amendments to ORS 196.620, 196.643,
196.682, 196.686 and 196.825 by sections 1 to 5 of this 2011 Act
apply to applications for permits filed with the Director of the
Department of State Lands under ORS 196.815 on or after the
effective date of this 2011 Act. + }
  SECTION 7.  { + This 2011 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2011 Act takes effect on its
passage. + }
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