Bill Text: OR HB3601 | 2011 | Regular Session | Enrolled
Bill Title: Relating to mining.
Sponsorship: Partisan Bill (Democrat 1)
Status: (Passed) 2011-06-17 - Chapter 406, (2011 Laws): Effective date January 1, 2012. [HB3601 Detail]
Download: Oregon-2011-HB3601-Enrolled.html
76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session
Enrolled
House Bill 3601
Sponsored by Representative SCHAUFLER (at the request of Oregon
Concrete and Aggregate Producers Association)
CHAPTER ................
AN ACT
Relating to mining; creating new provisions; and amending ORS
196.905 and 517.750.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + (1) As used in this section, 'surface mining '
has the meaning given that term in ORS 517.750 and 'waters of
this state' has the meaning given that term in ORS 196.800.
(2) The Department of State Lands and the State Department of
Geology and Mineral Industries may enter into a memorandum of
agreement concerning surface mining as described in subsection
(3) of this section.
(3) The memorandum described in subsection (2) of this section
may assign sole responsibility for permitting to the State
Department of Geology and Mineral Industries when the surface
mining would otherwise be under the permitting jurisdiction of
both the Department of State Lands and the State Department of
Geology and Mineral Industries because:
(a) Part of the surface mining is located within the beds or
banks of any waters of this state; and
(b) Part of the surface mining is located upland from the beds
or banks of any waters of this state.
(4) Prior to any permitting pursuant to the provisions of
subsection (3) of this section, the State Department of Geology
and Mineral Industries shall consult with the Department of State
Lands regarding any conditions necessary to protect the waters of
this state. + }
SECTION 2. ORS 517.750 is amended to read:
517.750. As used in ORS 517.702 to 517.989, unless the context
requires otherwise:
(1) 'Board' means the governing board of the State Department
of Geology and Mineral Industries.
(2) 'Completion' means termination of surface mining activities
including reclamation of the surface-mined land in accordance
with the approved reclamation plan and operating permit.
(3) 'Department' means the State Department of Geology and
Mineral Industries.
(4) 'Exploration' means all activities conducted on or beneath
the surface of the earth for the purpose of determining presence,
location, extent, grade or economic viability of a deposit.
'Exploration' does not include prospecting or chemical processing
of minerals.
Enrolled House Bill 3601 (HB 3601-INTRO) Page 1
(5) 'Explorer' means, notwithstanding the provisions of ORS
517.810 (2), any individual, public or private corporation,
political subdivision, agency, board or department of this state,
any municipality, partnership, association, firm, trust, estate
or any other legal entity whatsoever that is engaged in
exploration.
(6) 'Landowner' means:
(a) The person possessing fee title to the natural mineral
deposit being surface mined or explored; and
(b) The owner of an equitable interest in land that is subject
to a deed of trust.
(7) 'Minerals' includes soil, coal, clay, stone, sand, gravel,
metallic ore and any other solid material or substance excavated
for commercial, industrial or construction use from natural
deposits situated within or upon lands in this state.
(8) 'Operator' means any individual, public or private
corporation, political subdivision, agency, board or department
of this state, any municipality, partnership, association, firm,
trust, estate or any other legal entity whatsoever that is
engaged in surface mining operations.
(9) 'Overburden' means the soil, rock and similar materials
that lie above natural deposits of minerals.
(10) 'Person' means any person, any federal agency or any
public body, as defined in ORS 174.109.
(11) 'Processing' includes, but is not limited to, crushing,
washing, milling and screening as well as the batching and
blending of mineral aggregate into asphalt and portland cement
concrete located within the operating permit area.
(12) 'Reclamation' means the employment in a surface mining
operation or exploration of procedures reasonably designed to:
(a) Minimize, as much as practicable, the adverse effects of
the surface mining operation or exploration on land, air and
water resources; and
(b) Provide for the rehabilitation of surface resources
adversely affected by the surface mining operations or
exploration through the rehabilitation of plant cover, soil
stability and water resources and through other measures that
contribute to the subsequent beneficial use of the explored,
mined or reclaimed lands.
(13) 'Reclamation plan' means a written proposal, submitted to
the department as required by ORS 517.702 to 517.989 and
subsequently approved by the department as provided in ORS
517.702 to 517.989, for the reclamation of the land area
adversely affected by a surface mining operation or exploration
and including, but not limited to the following information:
(a) Proposed measures to be undertaken by the operator in
protecting the natural resources of adjacent lands.
(b) Proposed measures for the rehabilitation of the explored or
surface-mined lands and the procedures to be applied.
(c) The procedures to be applied in the surface mining
operation or exploration to control the discharge of contaminants
and the disposal of surface mining refuse.
(d) The procedures to be applied in the surface mining
operation or exploration in the rehabilitation of affected stream
channels and stream banks to a condition minimizing erosion,
sedimentation and other factors of pollution.
(e) The map required by ORS 517.790 (1)(e) and such other maps
and supporting documents as may be requested by the department.
(f) A proposed time schedule for the completion of reclamation
operations.
Enrolled House Bill 3601 (HB 3601-INTRO) Page 2
(g) Requirements of the exploration permit.
(14) 'Surface impacts of underground mining' means all waste
materials produced by underground mining and placed upon the
surface including, but not limited to, waste dumps, mill
tailings, washing plant fines and all surface subsidence related
to underground mining.
(15)(a) 'Surface mining' includes { + :
(A) + } All or any part of the process of mining minerals by
the removal of overburden and the extraction of natural mineral
deposits thereby exposed by any method by which more than 5,000
cubic yards of minerals are extracted or by which at least one
acre of land is affected within a period of 12 consecutive
calendar months, including open-pit mining operations, auger
mining operations, processing, surface impacts of underground
mining, production of surface mining refuse and the construction
of adjacent or off-site borrow pits (except those constructed for
use as access roads).
{ + (B) Removal or filling, or both, within the beds or banks
of any waters of this state that is the subject of a memorandum
of agreement between the Department of State Lands and the State
Department of Geology and Mineral Industries in which the State
Department of Geology and Mineral Industries is assigned sole
responsibility for permitting as described in section 1 of this
2011 Act. + }
(b) 'Surface mining' does not include:
(A) Excavations of sand, gravel, clay, rock or other similar
materials conducted by the landowner or tenant for the primary
purpose of construction, reconstruction or maintenance of access
roads on the same parcel or on an adjacent parcel that is under
the same ownership as the parcel that is being excavated;
(B) Excavation or grading operations, reasonably necessary for
farming;
(C) Nonsurface effects of underground mining;
(D) Removal of rock, gravel, sand, silt or other similar
substances removed from the beds or banks of any waters of this
state pursuant to a permit issued under ORS 196.800 to 196.900;
or
(E) Excavations or reprocessing of aggregate material, or
grading operations, within the highway right of way reasonably
necessary for the construction, reconstruction or maintenance of
a highway as defined in ORS 801.305.
(16) 'Surface mining refuse' means all waste materials, soil,
rock, mineral, liquid, vegetation and other materials resulting
from or displaced by surface mining operations within the
operating permit area, including all waste materials deposited in
or upon lands within the operating permit area.
(17) 'Underground mining' means all human-made excavations
below the surface of the ground through shafts or adits for the
purpose of exploring for, developing or producing valuable
minerals.
SECTION 3. 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
Enrolled House Bill 3601 (HB 3601-INTRO) Page 3
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
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) Nothing in ORS 196.600 to 196.905 applies to removal
or filling, or both, within the beds or banks of any waters of
this state conducted as part of a surface mining operation, that
is the subject of a memorandum of agreement between the
Department of State Lands and the State Department of Geology and
Enrolled House Bill 3601 (HB 3601-INTRO) Page 4
Mineral Industries in which the State Department of Geology and
Mineral Industries is assigned sole responsibility for permitting
as described in section 1 of this 2011 Act. + }
{ - (11) - } { + (12) + } 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) - } { + (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 4. 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
(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
Enrolled House Bill 3601 (HB 3601-INTRO) Page 5
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:
(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) Nothing in ORS 196.600 to 196.905 applies to removal
or filling, or both, within the beds or banks of any waters of
this state conducted as part of a surface mining operation that
is the subject of a memorandum of agreement between the
Department of State Lands and the State Department of Geology and
Mineral Industries in which the State Department of Geology and
Enrolled House Bill 3601 (HB 3601-INTRO) Page 6
Mineral Industries is assigned sole responsibility for permitting
as described in section 1 of this 2011 Act. + }
{ - (12) - } { + (13) + } 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) - } { + (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.
(d) 'Seeding' means the sowing of seed or placement of
seedlings to produce crops or other agricultural products.
SECTION 5. { + Section 1 of this 2011 Act and the amendments
to ORS 196.905 and 517.750 by sections 2 to 4 of this 2011 Act
apply to permits first applied for under ORS 517.790, or renewed,
on or after the effective date of this 2011 Act. + }
----------
Passed by House April 25, 2011
.............................................................
Ramona Kenady Line, Chief Clerk of House
.............................................................
Bruce Hanna, Speaker of House
.............................................................
Arnie Roblan, Speaker of House
Passed by Senate June 2, 2011
.............................................................
Peter Courtney, President of Senate
Enrolled House Bill 3601 (HB 3601-INTRO) Page 7
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 3601 (HB 3601-INTRO) Page 8
