Bill Text: OR HB2396 | 2013 | Regular Session | Enrolled
Bill Title: Relating to large woody debris.
Sponsorship: Partisan Bill (Democrat 6)
Status: (Passed) 2013-05-22 - Chapter 198, (2013 Laws): Effective date January 1, 2014. [HB2396 Detail]
Download: Oregon-2013-HB2396-Enrolled.html
77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session
Enrolled
House Bill 2396
Sponsored by Representative WITT; Representatives BUCKLEY, CLEM,
DOHERTY, FREDERICK, MATTHEWS (Presession filed.)
CHAPTER ................
AN ACT
Relating to large woody debris; creating new provisions; and
amending ORS 196.800 and 196.810.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 196.800 is amended to read:
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 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 Puget Island, including all
associated estuarine waters, tidelands, tidal marshes and
submerged lands.
(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) 'Large woody debris' means any naturally downed wood
that captures gravel, provides stream stability or provides fish
habitat, or any wood placed into waters of this state as part of
a habitat improvement or conservation project. + }
{ - (7) - } { + (8) + } 'Material' means rock, gravel,
sand, silt and other inorganic substances { + , and large woody
Enrolled House Bill 2396 (HB 2396-B) Page 1
debris, + } removed from waters of this state and any materials,
organic or inorganic, used to fill waters of this state.
{ - (8) - } { + (9) + } '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 creating, restoring,
enhancing or preserving substitute functions and values for the
waters of this state.
{ - (9) - } { + (10) + } '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) - } { + (11) + } 'Practicable' means capable of
being accomplished after taking into consideration the cost,
existing technology and logistics with respect to the overall
project purpose.
{ - (11) - } { + (12) + } 'Public use' means a publicly
owned project or a privately owned project that is available for
use by the public.
{ - (12) - } { + (13) + } '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) - } { + (14) + } '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) - } { + (15) + } '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) - } { + (16) + } '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) - } { + (17) + } '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
Enrolled House Bill 2396 (HB 2396-B) Page 2
normal circumstances do support, a prevalence of vegetation
typically adapted for life in saturated soil conditions.
SECTION 2. ORS 196.800, as amended by section 1, chapter 516,
Oregon Laws 2001, section 8, chapter 253, Oregon Laws 2003,
section 15, chapter 738, Oregon Laws 2003, section 3, chapter
849, Oregon Laws 2007, and section 19, chapter 343, Oregon Laws
2009, is amended to read:
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 Puget Island, including all
associated estuarine waters, tidelands, tidal marshes and
submerged lands.
(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) 'Large woody debris' means any naturally downed wood
that captures gravel, provides stream stability or provides fish
habitat, or any wood placed into waters of this state as part of
a habitat improvement or conservation project. + }
{ - (7) - } { + (8) + } 'Material' means rock, gravel,
sand, silt and other inorganic substances { + , and large woody
debris, + } removed from waters of this state and any materials,
organic or inorganic, used to fill waters of this state.
{ - (8) - } { + (9) + } '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 creating, restoring,
enhancing or preserving substitute functions and values for the
waters of this state.
{ - (9) - } { + (10) + } 'Person' means a person, a public
body, as defined in ORS 174.109, the federal government, when
Enrolled House Bill 2396 (HB 2396-B) Page 3
operating in any capacity other than navigational servitude, or
any other legal entity.
{ - (10) - } { + (11) + } 'Practicable' means capable of
being accomplished after taking into consideration the cost,
existing technology and logistics with respect to the overall
project purpose.
{ - (11) - } { + (12) + } 'Public use' means a publicly
owned project or a privately owned project that is available for
use by the public.
{ - (12) - } { + (13) + } '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) - } { + (14) + } '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) - } { + (15) + } '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) - } { + (16) + } '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) - } { + (17) + } '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.
SECTION 3. ORS 196.810 is amended to read:
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) Notwithstanding the permit requirements of this section and
notwithstanding the provisions of ORS 196.800 (3) and
{ - (12) - } { + (13) + }, 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
Enrolled House Bill 2396 (HB 2396-B) Page 4
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.
Enrolled House Bill 2396 (HB 2396-B) Page 5
(d) Does not relieve the person from payment of a fee
calculated in the manner provided in ORS 196.815.
SECTION 4. { + Section 5 of this 2013 Act is added to and made
a part of ORS 196.600 to 196.905. + }
SECTION 5. { + The provisions of ORS 196.600 to 196.905 do not
affect the removal of large woody debris if the large woody
debris:
(1) Poses a direct and demonstrable danger to livestock, human
life or real property;
(2) Poses a risk of harm to transportation facilities
including, but not limited to, culverts, bridges and roads
located near or within the beds or banks of any waters of this
state;
(3) Prevents or obstructs navigation within the beds or banks
of any waters of this state; or
(4) Meets conditions for the removal of large woody debris as
specified in rules of the Director of the Department of State
Lands. + }
SECTION 6. { + Sections 4 and 5 of this 2013 Act and the
amendments to ORS 196.800 and 196.810 by sections 1 to 3 of this
2013 Act apply to permits for which applications are filed or
renewals are requested on or after the effective date of this
2013 Act. + }
----------
Passed by House March 20, 2013
Repassed by House May 15, 2013
.............................................................
Ramona J. Line, Chief Clerk of House
.............................................................
Tina Kotek, Speaker of House
Passed by Senate May 13, 2013
.............................................................
Peter Courtney, President of Senate
Enrolled House Bill 2396 (HB 2396-B) Page 6
Received by Governor:
......M.,............., 2013
Approved:
......M.,............., 2013
.............................................................
John Kitzhaber, Governor
Filed in Office of Secretary of State:
......M.,............., 2013
.............................................................
Kate Brown, Secretary of State
Enrolled House Bill 2396 (HB 2396-B) Page 7
