Bill Text: OR SB521 | 2011 | Regular Session | Introduced
Bill Title: Relating to the Oregon Department of Natural Resources; appropriating money; declaring an emergency.
Sponsorship: Partisan Bill (Republican 1)
Status: (Failed) 2011-06-30 - In committee upon adjournment. [SB521 Detail]
Download: Oregon-2011-SB521-Introduced.html
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 1575
Senate Bill 521
Sponsored by Senator STARR (Presession filed.)
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.
Establishes Oregon Department of Natural Resources and Oregon
Natural Resources Commission. Directs Governor to appoint
Director of Oregon Department of Natural Resources and members of
commission. Establishes Oregon Natural Resources Fund.
Continuously appropriates moneys in fund to department for
purpose of carrying out its duties, functions and powers.
Abolishes State Department of Fish and Wildlife, State Fish and
Wildlife Commission, State Parks and Recreation Department, State
Parks and Recreation Commission, Department of State Lands,
Department of Land Conservation and Development, Land
Conservation and Development Commission, Land Use Board of
Appeals, State Department of Geology and Mineral Industries,
Water Resources Department, Water Resources Commission, Oregon
Watershed Enhancement Board, State Forestry Department, State
Board of Forestry and Oregon Forest Resources Institute.
Transfers duties, functions and powers from abolished
departments, commissions and boards to Oregon Department of
Natural Resources.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to the Oregon Department of Natural Resources; creating
new provisions; amending ORS 30.942, 30.943, 34.102, 35.550,
60.674, 62.720, 63.674, 65.674, 90.425, 93.230, 93.270, 93.690,
93.710, 94.508, 94.538, 97.774, 97.776, 97.780, 97.784, 98.050,
98.302, 98.329, 98.348, 98.352, 98.353, 98.354, 98.356, 98.362,
98.366, 98.372, 98.376, 98.382, 98.384, 98.386, 98.388, 98.392,
98.396, 98.402, 98.412, 98.416, 98.424, 98.991, 98.992,
105.699, 105.810, 112.055, 113.045, 113.085, 113.105, 113.235,
113.238, 113.242, 114.505, 114.520, 116.193, 116.203, 116.243,
116.253, 137.138, 146.125, 164.814, 166.220, 166.291, 166.660,
181.637, 181.715, 181.725, 182.415, 182.535, 183.457, 183.530,
183.635, 183.700, 184.668, 186.130, 192.502, 195.020, 195.025,
195.034, 195.040, 195.085, 195.120, 195.141, 195.145, 195.225,
195.250, 195.260, 195.300, 195.312, 195.314, 195.316, 195.326,
195.336, 196.107, 196.115, 196.408, 196.435, 196.438, 196.443,
196.465, 196.471, 196.485, 196.540, 196.545, 196.550, 196.555,
196.575, 196.600, 196.610, 196.615, 196.620, 196.623, 196.625,
196.630, 196.635, 196.640, 196.645, 196.650, 196.655, 196.674,
196.676, 196.678, 196.681, 196.682, 196.684, 196.686, 196.687,
196.688, 196.692, 196.795, 196.805, 196.810, 196.815, 196.817,
196.818, 196.820, 196.825, 196.830, 196.835, 196.845, 196.850,
196.860, 196.865, 196.870, 196.875, 196.880, 196.885, 196.890,
196.895, 196.900, 196.905, 196.910, 197.015, 197.040, 197.045,
197.047, 197.050, 197.060, 197.065, 197.070, 197.090, 197.158,
197.160, 197.165, 197.173, 197.175, 197.178, 197.180, 197.195,
197.225, 197.230, 197.235, 197.240, 197.245, 197.250, 197.251,
197.253, 197.254, 197.265, 197.270, 197.274, 197.277, 197.279,
197.283, 197.296, 197.299, 197.301, 197.302, 197.319, 197.320,
197.324, 197.328, 197.335, 197.340, 197.350, 197.375, 197.390,
197.395, 197.405, 197.416, 197.430, 197.445, 197.455, 197.505,
197.520, 197.530, 197.540, 197.610, 197.615, 197.620, 197.625,
197.626, 197.628, 197.629, 197.631, 197.633, 197.636, 197.637,
197.638, 197.639, 197.644, 197.646, 197.649, 197.650, 197.651,
197.652, 197.654, 197.656, 197.658, 197.659, 197.712, 197.717,
197.732, 197.736, 197.747, 197.763, 197.768, 197.770, 197.796,
197.820, 197.825, 197.828, 197.829, 197.830, 197.831, 197.835,
197.840, 197.845, 197.850, 197.860, 215.203, 215.209, 215.213,
215.263, 215.275, 215.278, 215.282, 215.283, 215.304, 215.416,
215.418, 215.427, 215.435, 215.457, 215.459, 215.503, 215.730,
215.740, 215.780, 215.788, 215.794, 221.034, 223.317, 225.300,
227.175, 227.178, 227.181, 227.186, 227.350, 238.005, 238A.005,
244.050, 261.330, 270.100, 270.110, 271.445, 272.050, 273.006,
273.020, 273.041, 273.045, 273.051, 273.055, 273.061, 273.065,
273.075, 273.081, 273.085, 273.091, 273.099, 273.101, 273.105,
273.115, 273.119, 273.121, 273.125, 273.131, 273.135, 273.141,
273.145, 273.151, 273.155, 273.185, 273.196, 273.197, 273.199,
273.225, 273.235, 273.241, 273.245, 273.247, 273.261, 273.265,
273.275, 273.281, 273.285, 273.290, 273.295, 273.300, 273.306,
273.311, 273.316, 273.321, 273.326, 273.331, 273.340, 273.345,
273.350, 273.360, 273.370, 273.375, 273.388, 273.413, 273.431,
273.447, 273.511, 273.523, 273.525, 273.531, 273.541, 273.551,
273.553, 273.554, 273.571, 273.586, 273.715, 273.751, 273.755,
273.761, 273.780, 273.785, 273.787, 273.790, 273.805, 273.815,
273.820, 273.825, 273.870, 273.902, 273.903, 273.992, 273.994,
274.005, 274.040, 274.043, 274.210, 274.220, 274.230, 274.240,
274.250, 274.280, 274.290, 274.404, 274.450, 274.460, 274.470,
274.490, 274.500, 274.510, 274.525, 274.530, 274.550, 274.560,
274.590, 274.610, 274.710, 274.720, 274.725, 274.735, 274.740,
274.745, 274.755, 274.760, 274.765, 274.770, 274.780, 274.785,
274.790, 274.795, 274.800, 274.805, 274.810, 274.815, 274.840,
274.845, 274.850, 274.855, 274.860, 274.867, 274.885, 274.890,
274.895, 274.915, 274.925, 274.929, 274.932, 274.937, 274.940,
274.963, 274.965, 274.967, 274.970, 274.983, 274.992, 274.994,
275.080, 276.003, 276.053, 276.058, 276.096, 276.412, 279A.025,
279A.050, 279B.020, 279B.235, 284.555, 284.577, 284.585,
285A.615, 285B.560, 285B.563, 285C.500, 287A.474, 291.055,
291.224, 291.445, 293.450, 293.455, 293.460, 293.701, 307.110,
308.270, 308A.056, 308A.065, 308A.350, 308A.356, 308A.359,
308A.360, 308A.362, 308A.365, 308A.368, 308A.374, 308A.380,
308A.383, 308A.406, 308A.409, 308A.412, 308A.415, 308A.418,
308A.421, 308A.424, 308A.430, 308A.700, 308A.709, 308A.743,
311.804, 314.840, 315.104, 315.106, 315.138, 316.045, 317.063,
319.320, 319.831, 321.005, 321.017, 321.152, 321.213, 321.257,
321.367, 321.550, 321.684, 321.716, 321.733, 321.805, 324.340,
327.405, 327.410, 327.425, 327.430, 327.435, 327.440, 327.445,
327.450, 327.455, 327.465, 327.470, 327.475, 327.480, 327.484,
336.015, 348.050, 348.070, 348.090, 348.095, 351.155, 352.520,
352.530, 352.570, 352.580, 358.487, 358.570, 358.575, 358.583,
358.585, 358.640, 358.645, 358.650, 358.680, 358.683, 358.685,
358.687, 358.690, 366.155, 366.512, 366.552, 366.553, 366.744,
367.173, 367.605, 367.850, 376.185, 376.620, 383.017, 390.010,
390.050, 390.065, 390.067, 390.111, 390.112, 390.121, 390.122,
390.124, 390.134, 390.137, 390.139, 390.140, 390.143, 390.144,
390.150, 390.153, 390.155, 390.180, 390.190, 390.195, 390.230,
390.235, 390.240, 390.245, 390.250, 390.255, 390.280, 390.285,
390.290, 390.300, 390.314, 390.318, 390.322, 390.330, 390.332,
390.334, 390.338, 390.340, 390.350, 390.360, 390.368, 390.555,
390.560, 390.565, 390.570, 390.575, 390.580, 390.585, 390.590,
390.605, 390.620, 390.630, 390.632, 390.635, 390.650, 390.655,
390.659, 390.660, 390.663, 390.666, 390.669, 390.672, 390.674,
390.676, 390.678, 390.715, 390.725, 390.729, 390.755, 390.805,
390.835, 390.845, 390.848, 390.855, 390.875, 390.885, 390.895,
390.910, 390.925, 390.930, 390.934, 390.936, 390.940, 390.959,
390.962, 390.965, 390.968, 390.971, 390.974, 390.977, 390.980,
390.986, 390.989, 390.992, 401.054, 401.904, 401.910, 401.915,
401.922, 401.950, 401.952, 401.955, 403.450, 406.090, 418.688,
419A.260, 421.298, 421.455, 421.465, 421.470, 421.628, 426.508,
431.120, 450.695, 450.700, 452.140, 452.245, 455.446, 455.447,
456.571, 456.585, 458.710, 459.047, 459A.615, 466.135, 466.280,
466.385, 468.035, 468A.215, 468A.220, 468A.363, 468B.040,
468B.045, 468B.048, 468B.060, 468B.090, 468B.105, 468B.190,
468B.365, 468B.400, 468B.450, 469.320, 469.350, 469.373,
469.470, 469.501, 469.503, 469.504, 469.571, 469.634, 469.652,
469.840, 476.090, 476.210, 476.220, 476.310, 476.320, 476.710,
476.990, 477.001, 477.005, 477.009, 477.013, 477.023, 477.027,
477.029, 477.052, 477.054, 477.057, 477.059, 477.060, 477.062,
477.066, 477.068, 477.085, 477.100, 477.120, 477.125, 477.180,
477.190, 477.210, 477.220, 477.225, 477.230, 477.232, 477.235,
477.240, 477.245, 477.250, 477.255, 477.260, 477.265, 477.270,
477.277, 477.295, 477.300, 477.305, 477.317, 477.320, 477.325,
477.355, 477.360, 477.365, 477.406, 477.412, 477.440, 477.455,
477.505, 477.510, 477.515, 477.520, 477.535, 477.540, 477.545,
477.554, 477.556, 477.558, 477.560, 477.562, 477.565, 477.580,
477.610, 477.615, 477.625, 477.630, 477.635, 477.640, 477.645,
477.650, 477.655, 477.660, 477.665, 477.670, 477.695, 477.745,
477.747, 477.760, 477.775, 477.777, 477.880, 477.960, 477.980,
477.985, 478.150, 478.665, 496.004, 496.012, 496.018, 496.085,
496.118, 496.124, 496.128, 496.138, 496.141, 496.146, 496.151,
496.154, 496.156, 496.162, 496.164, 496.166, 496.172, 496.176,
496.182, 496.201, 496.206, 496.211, 496.228, 496.232, 496.236,
496.242, 496.270, 496.275, 496.283, 496.286, 496.289, 496.291,
496.303, 496.340, 496.375, 496.390, 496.440, 496.445, 496.450,
496.455, 496.458, 496.460, 496.470, 496.480, 496.490, 496.510,
496.525, 496.550, 496.555, 496.562, 496.566, 496.605, 496.610,
496.615, 496.620, 496.630, 496.665, 496.680, 496.700, 496.705,
496.820, 496.825, 496.830, 496.835, 497.002, 497.006, 497.014,
497.016, 497.022, 497.026, 497.032, 497.036, 497.071, 497.075,
497.079, 497.102, 497.112, 497.121, 497.123, 497.132, 497.134,
497.136, 497.139, 497.142, 497.146, 497.151, 497.153, 497.156,
497.158, 497.162, 497.170, 497.218, 497.228, 497.238, 497.248,
497.249, 497.252, 497.258, 497.298, 497.308, 497.312, 497.318,
497.325, 497.327, 497.360, 497.400, 497.415, 498.006, 498.012,
498.016, 498.019, 498.022, 498.029, 498.036, 498.042, 498.052,
498.106, 498.126, 498.136, 498.142, 498.152, 498.158, 498.164,
498.166, 498.170, 498.180, 498.182, 498.208, 498.216, 498.222,
498.234, 498.242, 498.247, 498.279, 498.286, 498.301, 498.306,
498.316, 498.321, 498.326, 498.341, 498.346, 498.406, 498.418,
498.424, 498.432, 498.438, 498.444, 498.452, 498.458, 498.464,
501.005, 501.015, 501.025, 501.035, 501.045, 501.505, 506.006,
506.011, 506.036, 506.050, 506.119, 506.124, 506.129, 506.136,
506.142, 506.154, 506.201, 506.211, 506.213, 506.215, 506.220,
506.226, 506.231, 506.241, 506.306, 506.316, 506.321, 506.405,
506.450, 506.460, 506.462, 506.465, 506.501, 506.506, 506.516,
506.518, 506.521, 506.526, 506.535, 506.540, 506.620, 506.690,
506.695, 506.720, 506.755, 506.991, 506.995, 507.030, 507.050,
508.025, 508.030, 508.035, 508.106, 508.111, 508.116, 508.121,
508.235, 508.260, 508.306, 508.316, 508.406, 508.410, 508.415,
508.445, 508.450, 508.470, 508.485, 508.490, 508.495, 508.500,
508.505, 508.515, 508.520, 508.525, 508.530, 508.535, 508.540,
508.550, 508.700, 508.705, 508.710, 508.715, 508.718, 508.720,
508.725, 508.730, 508.735, 508.745, 508.755, 508.760, 508.762,
508.765, 508.781, 508.784, 508.790, 508.792, 508.793, 508.796,
508.807, 508.808, 508.810, 508.816, 508.819, 508.822, 508.825,
508.828, 508.852, 508.861, 508.867, 508.883, 508.892, 508.895,
508.901, 508.904, 508.910, 508.915, 508.921, 508.931, 508.936,
508.941, 508.945, 508.947, 508.949, 508.951, 508.953, 508.955,
508.960, 509.015, 509.031, 509.040, 509.075, 509.110, 509.115,
509.120, 509.140, 509.150, 509.216, 509.230, 509.240, 509.245,
509.580, 509.585, 509.590, 509.595, 509.600, 509.610, 509.620,
509.625, 509.630, 509.635, 509.645, 509.910, 511.070, 513.020,
513.030, 513.040, 516.010, 516.030, 516.035, 516.070, 516.100,
516.135, 517.430, 517.705, 517.710, 517.725, 517.730, 517.740,
517.750, 517.755, 517.770, 517.775, 517.780, 517.790, 517.795,
517.800, 517.810, 517.815, 517.820, 517.830, 517.831, 517.832,
517.833, 517.834, 517.835, 517.836, 517.837, 517.840, 517.850,
517.860, 517.862, 517.865, 517.870, 517.880, 517.890, 517.901,
517.910, 517.915, 517.920, 517.925, 517.930, 517.940, 517.950,
517.952, 517.956, 517.957, 517.959, 517.961, 517.963, 517.965,
517.967, 517.969, 517.971, 517.973, 517.975, 517.977, 517.978,
517.979, 517.980, 517.981, 517.982, 517.983, 517.984, 517.985,
517.986, 517.987, 517.988, 517.989, 517.990, 517.992, 520.005,
520.017, 520.025, 520.027, 520.045, 520.055, 520.095, 520.097,
520.125, 520.145, 520.175, 520.210, 520.220, 520.230, 520.240,
520.260, 520.280, 520.290, 520.300, 520.310, 520.330, 520.350,
520.991, 522.005, 522.015, 522.019, 522.025, 522.045, 522.055,
522.065, 522.075, 522.080, 522.085, 522.115, 522.125, 522.135,
522.145, 522.155, 522.175, 522.195, 522.205, 522.215, 522.225,
522.245, 522.255, 522.305, 522.315, 522.325, 522.355, 522.365,
522.405, 522.415, 522.425, 522.435, 522.445, 522.455, 522.465,
522.475, 522.495, 522.505, 522.515, 522.525, 522.535, 522.545,
522.810, 522.815, 522.910, 522.990, 526.005, 526.036, 526.041,
526.046, 526.052, 526.060, 526.065, 526.090, 526.095, 526.105,
526.111, 526.121, 526.125, 526.131, 526.135, 526.142, 526.144,
526.146, 526.148, 526.152, 526.156, 526.162, 526.164, 526.166,
526.168, 526.178, 526.192, 526.194, 526.233, 526.235, 526.237,
526.255, 526.265, 526.271, 526.274, 526.280, 526.310, 526.328,
526.332, 526.335, 526.340, 526.350, 526.360, 526.370, 526.425,
526.455, 526.470, 526.472, 526.475, 526.490, 526.510, 526.515,
526.605, 526.640, 526.645, 526.655, 526.665, 526.675, 526.695,
526.700, 526.703, 526.705, 526.710, 526.720, 526.725, 526.745,
526.765, 526.770, 526.775, 526.780, 526.783, 526.786, 526.789,
526.900, 526.905, 526.992, 527.260, 527.310, 527.321, 527.335,
527.346, 527.360, 527.370, 527.620, 527.630, 527.640, 527.650,
527.660, 527.670, 527.674, 527.676, 527.680, 527.683, 527.685,
527.687, 527.690, 527.700, 527.710, 527.714, 527.715, 527.721,
527.722, 527.736, 527.740, 527.745, 527.750, 527.755, 527.760,
527.765, 527.770, 527.992, 530.005, 530.010, 530.020, 530.025,
530.030, 530.040, 530.050, 530.055, 530.059, 530.065, 530.075,
530.110, 530.115, 530.120, 530.130, 530.140, 530.147, 530.170,
530.175, 530.230, 530.240, 530.250, 530.255, 530.280, 530.460,
530.470, 530.480, 530.490, 530.500, 530.510, 530.520, 530.990,
532.010, 532.020, 532.030, 532.040, 532.050, 532.060, 532.070,
532.080, 532.090, 532.100, 532.110, 532.120, 536.007, 536.009,
536.015, 536.017, 536.021, 536.028, 536.031, 536.040, 536.050,
536.055, 536.075, 536.090, 536.220, 536.235, 536.295, 536.300,
536.310, 536.315, 536.320, 536.330, 536.340, 536.350, 536.360,
536.370, 536.380, 536.390, 536.400, 536.410, 536.420, 536.430,
536.440, 536.450, 536.460, 536.470, 536.480, 536.490, 536.500,
536.520, 536.540, 536.570, 536.595, 536.700, 536.720, 536.730,
536.750, 536.770, 536.780, 536.900, 536.910, 536.915, 536.920,
536.930, 536.935, 537.040, 537.090, 537.095, 537.097, 537.099,
537.130, 537.132, 537.135, 537.139, 537.140, 537.141, 537.142,
537.143, 537.144, 537.145, 537.147, 537.150, 537.153, 537.160,
537.170, 537.173, 537.175, 537.190, 537.211, 537.220, 537.230,
537.240, 537.248, 537.250, 537.252, 537.260, 537.283, 537.285,
537.287, 537.289, 537.292, 537.295, 537.297, 537.299, 537.310,
537.330, 537.332, 537.336, 537.338, 537.341, 537.343, 537.346,
537.348, 537.349, 537.350, 537.352, 537.356, 537.358, 537.360,
537.385, 537.400, 537.405, 537.407, 537.409, 537.410, 537.420,
537.440, 537.445, 537.450, 537.465, 537.470, 537.480, 537.485,
537.525, 537.532, 537.534, 537.535, 537.545, 537.595, 537.605,
537.610, 537.615, 537.620, 537.621, 537.622, 537.625, 537.626,
537.627, 537.628, 537.629, 537.630, 537.635, 537.665, 537.670,
537.675, 537.685, 537.690, 537.695, 537.700, 537.720, 537.730,
537.735, 537.740, 537.742, 537.745, 537.746, 537.747, 537.750,
537.753, 537.762, 537.763, 537.765, 537.769, 537.772, 537.775,
537.777, 537.780, 537.783, 537.785, 537.787, 537.789, 537.791,
537.796, 537.797, 537.798, 537.799, 537.805, 537.809, 537.835,
537.840, 537.855, 537.880, 537.885, 537.890, 537.992, 538.010,
538.125, 538.150, 538.170, 538.210, 538.220, 538.251, 538.410,
538.430, 538.450, 539.005, 539.010, 539.015, 539.021, 539.030,
539.040, 539.070, 539.081, 539.090, 539.100, 539.110, 539.120,
539.130, 539.140, 539.150, 539.160, 539.170, 539.180, 539.190,
539.200, 539.210, 539.220, 539.230, 539.240, 539.310, 539.320,
539.330, 539.340, 539.350, 540.010, 540.020, 540.030, 540.045,
540.050, 540.075, 540.080, 540.130, 540.135, 540.145, 540.210,
540.220, 540.310, 540.320, 540.330, 540.340, 540.350, 540.360,
540.370, 540.380, 540.390, 540.410, 540.435, 540.505, 540.510,
540.520, 540.523, 540.524, 540.525, 540.530, 540.531, 540.532,
540.533, 540.535, 540.537, 540.541, 540.550, 540.560, 540.570,
540.572, 540.574, 540.576, 540.578, 540.580, 540.585, 540.587,
540.610, 540.621, 540.631, 540.641, 540.650, 540.660, 540.670,
540.740, 541.220, 541.230, 541.310, 541.320, 541.327, 541.329,
541.331, 541.333, 541.351, 541.365, 541.368, 541.370, 541.371,
541.372, 541.375, 541.376, 541.377, 541.378, 541.379, 541.381,
541.384, 541.388, 541.390, 541.392, 541.395, 541.396, 541.397,
541.401, 541.405, 541.420, 541.423, 541.425, 541.426, 541.510,
541.515, 541.520, 541.525, 541.530, 541.535, 541.540, 541.545,
541.561, 541.576, 541.581, 541.606, 541.611, 541.616, 541.621,
541.631, 541.636, 541.641, 541.646, 541.700, 541.703, 541.705,
541.710, 541.720, 541.725, 541.730, 541.735, 541.740, 541.741,
541.745, 541.750, 541.765, 541.770, 541.780, 541.830, 541.835,
541.840, 541.845, 541.850, 541.855, 541.875, 542.010, 542.030,
542.040, 542.050, 542.060, 542.075, 542.080, 542.100, 542.110,
542.520, 542.620, 542.630, 542.750, 543.010, 543.015, 543.017,
543.050, 543.055, 543.060, 543.078, 543.080, 543.082, 543.085,
543.088, 543.090, 543.092, 543.150, 543.175, 543.210, 543.220,
543.225, 543.230, 543.250, 543.255, 543.260, 543.265, 543.270,
543.280, 543.290, 543.300, 543.410, 543.420, 543.430, 543.440,
543.530, 543.540, 543.550, 543.560, 543.610, 543.662, 543.664,
543.710, 543.720, 543.730, 543.765, 543.990, 543A.005,
543A.020, 543A.025, 543A.030, 543A.035, 543A.040, 543A.045,
543A.055, 543A.060, 543A.065, 543A.071, 543A.075, 543A.080,
543A.095, 543A.115, 543A.120, 543A.125, 543A.130, 543A.135,
543A.140, 543A.145, 543A.150, 543A.300, 543A.305, 543A.400,
543A.405, 543A.410, 543A.415, 545.643, 548.940, 548.955,
549.605, 549.610, 549.615, 549.620, 549.625, 549.630, 549.635,
549.640, 549.645, 552.403, 555.020, 555.030, 555.040, 555.050,
555.060, 555.070, 555.090, 555.100, 555.110, 555.120, 555.130,
555.140, 555.150, 555.160, 555.180, 555.190, 555.310, 555.320,
555.330, 555.340, 555.350, 555.360, 555.370, 555.390, 555.400,
555.410, 561.020, 561.191, 561.362, 561.400, 564.105, 565.021,
565.030, 565.040, 565.050, 565.060, 565.080, 565.090, 565.095,
565.103, 565.107, 565.109, 565.114, 565.116, 565.120, 565.130,
565.140, 565.150, 565.160, 565.170, 565.610, 565.620, 565.630,
565.640, 566.320, 566.330, 566.340, 566.360, 568.552, 570.770,
570.780, 570.850, 570.855, 570.860, 570.865, 576.215, 609.345,
610.002, 610.003, 610.020, 619.095, 619.105, 622.220, 624.165,
634.322, 634.550, 634.660, 646.515, 652.405, 652.710, 653.256,
653.370, 659A.855, 672.615, 686.040, 701.010, 708A.430,
708A.655, 711.225, 711.230, 711.235, 711.590, 716.905, 716.910,
723.466, 723.844, 725.910, 757.266, 772.305, 772.310, 777.095,
777.100, 777.347, 783.400, 802.125, 803.030, 803.305, 803.601,
805.256, 811.560, 814.516, 821.170, 821.260, 821.291, 825.017,
830.175, 830.185, 830.560, 830.909, 835.114, 835.200, 836.608,
836.610, 836.616, 836.619, 836.623, 836.630 and 836.642 and
section 2, chapter 45, Oregon Laws 1989, section 19, chapter
659, Oregon Laws 1993, section 2, chapter 460, Oregon Laws
1995, section 6, chapter 1059, Oregon Laws 1999, sections 2 and
4, chapter 496, Oregon Laws 2001, sections 11, 12 and 14,
chapter 516, Oregon Laws 2001, section 1, chapter 461, Oregon
Laws 2003, sections 23 and 24, chapter 705, Oregon Laws 2003,
sections 4 and 5, chapter 669, Oregon Laws 2005, sections 6, 7,
8 and 10, chapter 424, Oregon Laws 2007, sections 5 and 6,
chapter 13, Oregon Laws 2008, section 4, chapter 504, Oregon
Laws 2009, sections 3, 5, 6, 7, 8, 9 and 10, chapter 636,
Oregon Laws 2009, sections 2, 3, 4, 5, 6, 8, 9, 17, 18, 20 and
21, chapter 855, Oregon Laws 2009, sections 37, 38 and 38a,
chapter 865, Oregon Laws 2009, section 1, chapter 871, Oregon
Laws 2009, sections 17, 20, 25, 26, 29 and 33, chapter 907,
Oregon Laws 2009, section 11, chapter 913, Oregon Laws 2009,
sections 2, 4, 6 and 7, chapter 8, Oregon Laws 2010, section 1,
chapter 11, Oregon Laws 2010, section 28, chapter 23, Oregon
Laws 2010, sections 1 and 2, chapter 44, Oregon Laws 2010,
section 1, chapter 63, Oregon Laws 2010, sections 2 and 3,
chapter 68, Oregon Laws 2010, section 5, chapter 84, Oregon
Laws 2010, and sections 3, 4, 5, 6 and 9, chapter 85, Oregon
Laws 2010; repealing ORS 197.030, 197.035, 197.075, 197.085,
197.095, 197.810, 197.815, 197.832, 273.071, 273.161, 273.165,
273.171, 273.175, 273.183, 390.005, 390.114, 390.117, 390.127,
390.131, 390.200, 390.231, 390.295, 496.080, 496.090, 496.108,
496.112, 496.116, 496.121, 496.300, 496.306, 496.311, 496.815,
508.326, 516.020, 516.080, 516.090, 516.120, 516.130, 516.133,
517.735, 522.275, 526.008, 526.009, 526.016, 526.031, 526.054,
526.600, 526.610, 526.615, 526.620, 526.625, 526.632, 526.650,
526.660, 526.670, 526.730, 536.022, 536.025, 536.026, 536.027,
536.032, 536.037, 536.039, 537.249, 537.895, 541.360, 541.362
and 541.363; appropriating money; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
{ +
OREGON DEPARTMENT OF NATURAL RESOURCES + }
{ +
(Establishment, Duties and Powers) + }
SECTION 1. { + The Oregon Department of Natural Resources is
established. The department shall:
(1) Administer the wildlife laws of this state and issue
licenses and permits under ORS chapter 497;
(2) Administer the commercial fishing laws of this state and
issue licenses and permits under ORS chapter 508;
(3) Manage, control and utilize all state parks, waysides, and
scenic, historic and state recreation areas;
(4) Administer programs relating to lost, unclaimed or
abandoned property;
(5) Manage and control, under the direction of the State Land
Board, land belonging to this state;
(6) Regulate removal and fill activities and issue permits
under ORS 196.600 to 196.905;
(7) Establish statewide land use goals and guidelines for local
governments and special districts and review land use decisions,
limited land use decisions and expedited land divisions;
(8) Administer programs related to geology, mines, minerals,
mineral industries and geologic hazards;
(9) Administer programs related to water resources and laws
pertaining to the appropriation of water rights, the development
of water resources and the protection and enhancement of
watersheds;
(10) Administer programs related to the protection of forests
from fire; and
(11) Manage and control the forestland of this state. + }
{ +
(Appointment of Director) + }
SECTION 2. { + (1) The Oregon Department of Natural Resources
is under the supervision and control of a director, who is
responsible for the performance of the duties, functions and
powers of the department.
(2) The Governor shall appoint the Director of the Oregon
Department of Natural Resources, who holds office at the pleasure
of the Governor.
(3) The director shall be paid a salary as provided by law or,
if not so provided, as prescribed by the Governor.
(4) For purposes of administration, subject to the approval of
the Governor, the director may organize and reorganize the
department as the director considers necessary to properly
conduct the work of the department.
(5) The director may divide the functions of the department
into administrative divisions. Subject to the approval of the
Governor, the director may appoint an individual to administer
each division. The administrator of each division serves at the
pleasure of the director and is not subject to the provisions of
ORS chapter 240. Each individual appointed under this subsection
must be well-qualified by technical training and experience in
the functions to be performed by the individual. + }
SECTION 3. { + The Director of the Oregon Department of
Natural Resources may be appointed before the operative date of
sections 1 to 17 of this 2011 Act and may take any action before
that date that is necessary to enable the director to exercise,
on and after the operative date of sections 1 to 17 of this 2011
Act, the duties, functions and powers of the director pursuant to
sections 1 to 17 of this 2011 Act. + }
SECTION 4. { + The appointment of the Director of the Oregon
Department of Natural Resources is subject to confirmation by the
Senate in the manner prescribed in ORS 171.562 and 171.565. + }
{ +
(Duties and Powers of Director) + }
SECTION 5. { + (1) The Director of the Oregon Department of
Natural Resources shall administer and enforce all of the
following:
(a) The wildlife laws of this state.
(b) The commercial fishing laws of this state.
(c) The laws of this state that pertain to the administration
of state parks and other real property or a right to or interest
in real property acquired by this state under ORS chapter 390.
(d) The laws of this state that pertain to the water resources
of this state. As used in this paragraph, 'water resources of
this state' has the meaning given that term in ORS 536.007.
(e) The laws of this state that pertain to forestland. As used
in this paragraph, 'forestland' has the meaning given that term
in ORS 526.005.
(f) The laws of this state that pertain to land use decisions,
limited land use decisions and expedited land divisions. As used
in this paragraph, 'land use decision' and ' limited land use
decision' have the meanings given those terms in ORS 197.015 and
'expedited land division' has the meaning given that term in ORS
197.360.
(g) The laws of this state that pertain to state land. As used
in this paragraph, 'state land' has the meaning given that term
in ORS 273.006.
(2) In administrating and enforcing the laws of this state
under subsection (1)(a) to (f) of this section, the director
shall establish the administrative policies of the Oregon
Department of Natural Resources in accordance with the rules and
policies of the Oregon Natural Resources Commission established
in section 11 of this 2011 Act.
(3) In administering and enforcing the laws of this state under
subsection (1)(g) of this section, the director shall establish
the administrative polices of the department in accordance with
the rules and policies of the State Land Board established under
section 5, Article VIII of the Oregon Constitution and ORS
273.031.
(4) In addition to the duties imposed by subsection (1) of this
section, the director shall:
(a) Administer and enforce the laws of this state that pertain
to geology, mines, minerals, mineral industries and geologic
hazards. As used in this paragraph, 'geology, ' ' mine,'
'minerals,' 'mineral industries' and 'geologic hazard' have the
meanings given those terms in ORS 516.010.
(b) Administer a watershed enhancement program under ORS
541.351 to 541.415 and coordinate the activities of the
department that are related to watershed enhancement projects
approved by the department under ORS 541.375 with the activities
of other cooperating state and federal agencies that are
participating in the projects.
(c) Adopt rules that govern the review of land use decisions
and limited land use decisions under ORS 197.830 to 197.845.
(5) The director may:
(a) Participate in any proceeding before any public officer,
commission or body of the United States or any state for the
purpose of representing the interests of Oregon residents in
proceedings that concern the duties imposed on the director by
this section.
(b) Enter private property to perform duties that are
statutorily imposed on the director.
(c) Retain, manage, sell, lease, exchange or otherwise convey
real property or a right to or interest in real property under
the jurisdiction of the department. + }
{ +
(Authority of Director to Adopt Rules) + }
SECTION 6. { + In accordance with applicable provisions of ORS
chapter 183, the Director of the Oregon Department of Natural
Resources may adopt rules necessary for the administration of the
laws that the Oregon Department of Natural Resources is charged
with administering except for those laws over which the Oregon
Natural Resources Commission has rulemaking authority. Rules
necessary for the administration of laws over which the
commission has rulemaking authority may be adopted only in the
manner prescribed by section 16 of this 2011 Act. + }
{ +
(Employees) + }
SECTION 7. { + (1) The Director of the Oregon Department of
Natural Resources shall, by written order filed with the
Secretary of State, appoint a deputy director who serves the
pleasure of the director, has authority to act for the director
in the absence of the director, and is subject to the control of
the director at all times.
(2) Subject to any applicable provisions of ORS chapter 240,
the director:
(a) Shall appoint, prescribe the duties for and fix the
compensation of:
(A) A panel of no fewer than three officers to review appeals
of land use decisions or limited land use decisions under ORS
197.830 to 197.845. Officers appointed under this subparagraph
may not participate in the enforcement of an order issued under
ORS 197.830 to 197.845.
(B) An officer who is qualified to perform and direct the
technical and executive work of the Oregon Department of Natural
Resources related to geology, mines, minerals, mineral industries
and geologic hazards. The officer appointed under this
subparagraph must be a geologist, engineer or other technical
specialist with a broad background of practical experience
related to geology, mines, minerals, mineral industries and
geologic hazards. As used in this paragraph, 'geology,' 'mine, '
' minerals,' 'mineral industries' and 'geologic hazard' have the
meanings given those terms in ORS 516.010.
(C) An officer who is qualified to direct and administer
programs under ORS chapters 477 and 526 and other programs that
are related to the prevention and combating of forest fires.
(b) May appoint, prescribe the duties for and fix the
compensation of any other officers and employees whom the
director deems necessary to carry out the duties, functions and
powers of the Oregon Department of Natural Resources. + }
{ +
(Oaths, Witnesses and Subpoenas) + }
SECTION 8. { + The Director of the Oregon Department of
Natural Resources, the deputy director and authorized
representatives of the director may administer oaths, take
depositions and issue subpoenas to compel the attendance of
witnesses and the production of documents or other written
information necessary to carry out the provisions of sections 1
to 17 of this 2011 Act. If any person fails to comply with a
subpoena issued under this section, or refuses to testify on
matters on which the person lawfully may be interrogated, the
procedure set out in ORS 183.440 must be followed to compel
obedience. + }
{ +
(Authority of Department to Require Fingerprints) + }
SECTION 9. { + For the purpose of requesting a state or
nationwide criminal records check under ORS 181.534, the Oregon
Department of Natural Resources may require the fingerprints of a
person who:
(1)(a) Is employed or applying for employment by the
department;
(b) Provides services or seeks to provide services to the
department as a contractor, vendor or volunteer; or
(c) Is a licensee of the department or who is applying for a
license, or for a renewal of a license, that is issued by the
department.
(2) Is, or will be, working or providing services in a
position:
(a) In which the person has direct access to persons under 18
years of age, elderly persons or persons with disabilities;
(b) That has personnel or human resources functions as one of
the position's primary responsibilities;
(c) In which the person is providing information technology
services and has control over, or access to, information
technology systems that would allow the person to harm the
information technology systems or the information contained in
the systems;
(d) That involves the use, possession, issuance, transport,
purchase, sale or forfeiture of firearms or munitions, access to
firearms or munitions, or the training of others in the use or
handling of firearms;
(e) In which the person resides on property managed by the
department;
(f) In which the person provides security, design or
construction services for government buildings, grounds or
facilities;
(g) In which the person has key access to buildings and grounds
that contain private property belonging or entrusted to
exhibitors, promoters, licensees or event coordinators;
(h) In which the person has access to information, the
disclosure of which is prohibited by state or federal laws, rules
or regulations or information that is defined as confidential
under state or federal laws, rules or regulations;
(i) That has payroll functions or in which the person has
responsibility for receiving, receipting or depositing money or
negotiable instruments, for billing, collections or other
financial transactions or for purchasing or selling property, or
in which the person has access to property held in trust or to
private property in the temporary custody of the state;
(j) That has mailroom duties as a primary duty or job function;
(k) In which the person has responsibility for auditing the
department;
(L) In which the person has access to Social Security numbers,
dates of birth or criminal background information of employees or
members of the public;
(m) In which the person has access to tax or financial
information about individuals or business entities;
(n) In which the person may issue citations under ORS 390.050;
or
(o) In which the person investigates or fights wildland fires
and the criminal records check is requested to search for crimes
associated with arson. + }
{ +
(Oregon Natural Resources Fund) + }
SECTION 10. { + The Oregon Natural Resources Fund is
established in the State Treasury, separate and distinct from the
General Fund. Interest earned by the Oregon Natural Resources
Fund shall be credited to the fund. Moneys in the fund are
continuously appropriated to the Oregon Department of Natural
Resources for the purpose of carrying out the duties, functions
and powers of the department pursuant to sections 1 to 17 of this
2011 Act. + }
{ +
OREGON NATURAL RESOURCES COMMISSION + }
{ +
(Establishment, Initial Appointments) + }
SECTION 11. { + (1) There is established within the Oregon
Department of Natural Resources the Oregon Natural Resources
Commission, consisting of nine members appointed by the Governor.
(2) The term of office of each member is four years, but a
member serves at the pleasure of the Governor. Before the
expiration of the term of a member, the Governor shall appoint a
successor whose term begins on January 1 next following. A member
is eligible for reappointment. If there is a vacancy for any
cause, the Governor shall make an appointment to become
immediately effective for the unexpired term.
(3) The appointment of a member of the commission is subject to
confirmation by the Senate in the manner prescribed in ORS
171.562 and 171.565.
(4) A member of the commission is entitled to compensation and
expenses as provided in ORS 292.495. + }
SECTION 12. { + Notwithstanding the term of office specified
by section 11 of this 2011 Act, of the members first appointed to
the Oregon Natural Resources Commission:
(1) Three shall serve for a term ending December 31, 2013.
(2) Two shall serve for a term ending December 31, 2014.
(3) Two shall serve for a term ending December 31, 2015.
(4) Two shall serve for terms ending December 31, 2016. + }
SECTION 13. { + The members of the Oregon Natural Resources
Commission may be appointed before the operative date of sections
1 to 17 of this 2011 Act and may take any action before that date
that is necessary to enable the commission to exercise, on and
after the operative date of sections 1 to 17 of this 2011 Act,
the duties, functions and powers of the commission pursuant to
sections 1 to 17 of this 2011 Act. + }
{ +
(Qualifications of Commission Members) + }
SECTION 14. { + (1) The members of the Oregon Natural
Resources Commission must be residents of this state and
well-informed on the laws of this state that pertain to land use
decisions, limited land use decisions and expedited land
divisions. As used in this subsection, 'land use decision' and
'limited land use decision' have the meanings given those terms
in ORS 197.015 and ' expedited land division' has the meaning
given that term in ORS 197.360.
(2) The commission must have:
(a) At least one member who is well-informed on the wildlife
laws of this state.
(b) At least one member who is well-informed on the commercial
fishing laws of this state.
(c) At least one member who is well-informed on the policy of
this state toward outdoor recreation resources, as described in
ORS 390.010.
(d) At least one member who is well-informed on the laws of
this state that pertain to the administration of state land. As
used in this paragraph, 'state land' has the meaning given that
term in ORS 273.006.
(e) At least one member who is well-informed on the laws of
this state that pertain to geology, mines, minerals, mineral
industries and geologic hazards. As used in this paragraph, '
geology,' 'mine,' 'minerals,' 'mineral industries' and ' geologic
hazard' have the meanings given those terms in ORS 516.010.
(f) At least one member who is well-informed on the laws of
this state that pertain to the administration of the water
resources of this state. As used in this paragraph, 'water
resources of this state' has the meaning given that term in ORS
536.007.
(g) At least one member who is well-informed on the laws of
this state that pertain to the administration of forestland. As
used in this paragraph, 'forestland' has the meaning given that
term in ORS 526.005.
(h) At least one member who represents the interests of persons
that grow, harvest, or produce timber or timber products.
(3) In addition to the requirements of subsection (2) of this
section, the commission must have:
(a) At least one member representing Clatsop, Columbia, Coos,
Curry, Lincoln and Tillamook Counties and the portions of Douglas
and Lane Counties lying west of the summit of the Coast Range.
(b) At least one member representing Clackamas, Multnomah and
Washington Counties.
(c) At least one member representing Benton, Linn, Marion, Polk
and Yamhill Counties and the portion of Lane County lying east of
the summit of the Coast Range.
(d) At least one member representing Jackson and Josephine
Counties and the portion of Douglas County lying east of the
summit of the Coast Range.
(e) At least one member representing Baker, Crook, Deschutes,
Gilliam, Grant, Harney, Hood River, Jefferson, Klamath, Lake,
Malheur, Morrow, Sherman, Umatilla, Union, Wallowa, Wasco and
Wheeler Counties.
(f) At least one member who is, or has been, an elected city or
county official in this state.
(4) The member who meets the qualifications of subsection
(2)(h) of this section may not receive compensation directly from
persons or organizations that are subject to regulation under ORS
527.610 to 527.770, 527.990 (1) or 527.992 or ORS chapter 520 or
522. + }
{ +
(Officers, Quorum and Meetings) + }
SECTION 15. { + (1) The Oregon Natural Resources Commission
shall select one of its members as chairperson and another as
vice chairperson, for such terms and with duties and powers
necessary for the performance of the functions of such offices as
the commission determines.
(2) A majority of the members of the commission constitutes a
quorum for the transaction of business.
(3) The commission shall meet at least once every month at a
place, day and hour determined by the commission. The commission
may also meet at other times and places specified by the call of
the chairperson or of a majority of the members of the
commission. + }
{ +
(Authority of Commission to Adopt Rules) + }
SECTION 16. { + (1) In accordance with applicable provisions
of ORS chapter 183, the Oregon Natural Resources Commission may
adopt rules necessary for the administration of the laws that the
commission is charged with administering.
(2) The commission may delegate to the Director of the Oregon
Department of Natural Resources any of the functions, duties or
powers granted to or imposed upon the commission by law.
(3) Notwithstanding subsection (2) of this section, the
commission may not delegate to the director the power to adopt
and amend goals and guidelines pursuant to ORS 197.225 and
197.230. As used in this subsection, 'goals' and 'guidelines'
have the meanings given those terms in ORS 197.015. + }
{ +
(Advisory and Technical Committees) + }
SECTION 17. { + (1) The Oregon Natural Resources Commission
may establish such advisory and technical committees as the
commission considers necessary to aid and advise the commission
in the performance of its functions. These committees may be
continuing or temporary committees. The commission shall
determine the representation, membership, terms and organization
of the committees and shall appoint their members.
(2) Members of the committees are not entitled to compensation,
but at the discretion of the commission may be reimbursed from
funds available to the commission for actual and necessary travel
and other expenses incurred by them in the performance of their
official duties, in the manner and amount provided in ORS
292.495. + } { + + }
{ +
STATE DEPARTMENT OF FISH AND WILDLIFE + }
{ +
(Abolishment and Transfer of + }
{ +
Duties, Functions and Powers) + }
SECTION 18. { + (1) The State Department of Fish and Wildlife
and the State Fish and Wildlife Commission are abolished. On the
operative date of this section, the tenure of office of the
members of the State Fish and Wildlife Commission and of the
State Fish and Wildlife Director ceases.
(2)(a) All the duties, functions and powers of the State
Department of Fish and Wildlife are imposed upon, transferred to
and vested in the Oregon Department of Natural Resources.
(b) Where the law imposed the duty or function upon or vested
the power in the State Fish and Wildlife Director, the duty,
function or power is imposed upon, transferred to or vested in
the Director of the Oregon Department of Natural Resources.
(c) Where the law imposed the duty or function upon or vested
the power in the State Fish and Wildlife Commission, the duty,
function or power is imposed upon, transferred to and vested in
the Oregon Natural Resources Commission. + }
{ +
(Transfer of Records, Property and Employees) + }
SECTION 19. { + (1) The State Fish and Wildlife Director and
the State Fish and Wildlife Commission shall:
(a) Deliver to the Oregon Department of Natural Resources all
records and property within the jurisdiction of the director or
the commission that relate to the duties, functions and powers
transferred by section 18 of this 2011 Act; and
(b) Transfer to the Oregon Department of Natural Resources
those employees engaged primarily in the exercise of the duties,
functions and powers transferred by section 18 of this 2011 Act.
(2) The Director of the Oregon Department of Natural Resources
and the Oregon Natural Resources Commission shall take possession
of the records and property, and shall take charge of the
employees and employ them in the exercise of the duties,
functions and powers transferred by section 18 of this 2011 Act,
without reduction of compensation but subject to change or
termination of employment or compensation as provided by law.
(3) The Governor shall resolve any dispute between the State
Department of Fish and Wildlife and the Oregon Department of
Natural Resources, or the State Fish and Wildlife Commission and
the Oregon Natural Resources Commission, relating to transfers of
records, property and employees under this section, and the
Governor's decision is final. + }
{ +
(Transfer of Unexpended Revenues) + }
SECTION 20. { + (1) The unexpended balances of amounts
authorized to be expended by the State Department of Fish and
Wildlife for the biennium beginning July 1, 2011, from revenues
dedicated, continuously appropriated, appropriated or otherwise
made available for the purpose of administering and enforcing the
duties, functions and powers transferred by section 18 of this
2011 Act are transferred to and are available for expenditure by
the Oregon Department of Natural Resources for the biennium
beginning July 1, 2011, for the purpose of administering and
enforcing the duties, functions and powers transferred by section
18 of this 2011 Act.
(2) The expenditure classifications, if any, established by
Acts authorizing or limiting expenditures by the State Department
of Fish and Wildlife remain applicable to expenditures by the
Oregon Department of Natural Resources under this section.
(3) The unexpended balances of amounts authorized to be
expended by the State Fish and Wildlife Commission for the
biennium beginning July 1, 2011, from revenues dedicated,
continuously appropriated, appropriated or otherwise made
available for the purpose of administering and enforcing the
duties, functions and powers transferred by section 18 of this
2011 Act are transferred to and are available for expenditure by
the Oregon Natural Resources Commission for the biennium
beginning July 1, 2011, for the purpose of administering and
enforcing the duties, functions and powers transferred by section
18 of this 2011 Act.
(4) The expenditure classifications, if any, established by
Acts authorizing or limiting expenditures by the State Fish and
Wildlife Commission remain applicable to expenditures by the
Oregon Natural Resources Commission under this section. + }
{ +
(Action, Proceeding and Prosecution) + }
SECTION 21. { + The transfer of duties, functions and powers
to the Oregon Department of Natural Resources by section 18 of
this 2011 Act does not affect any action, proceeding or
prosecution involving or with respect to such duties, functions
and powers begun before and pending at the time of the transfer,
except that:
(1) The Oregon Department of Natural Resources is substituted
for the State Department of Fish and Wildlife where the State
Department of Fish and Wildlife is involved in the action,
proceeding or prosecution; or
(2) The Oregon Natural Resources Commission is substituted for
the State Fish and Wildlife Commission where the State Fish and
Wildlife Commission is involved in the action, proceeding or
prosecution. + }
{ +
(Liability, Duty and Obligation) + }
SECTION 22. { + (1) Nothing in sections 18 to 24 of this 2011
Act, the amendments to statutes by sections 28 to 411, 422 to
576, 585 to 901, 912 to 1090, 1099 to 1112, 1122 to 1257, 1269 to
1749k, 1758 to 1780, 1791 to 2081 and 2091 to 2160 of this 2011
Act or the repeal of ORS 496.080, 496.090, 496.108, 496.112,
496.116, 496.121, 496.300, 496.306, 496.311, 496.815 or 508.326
by section 2161 of this 2011 Act relieves a person of a
liability, duty or obligation accruing under or with respect to
the duties, functions and powers transferred by section 18 of
this 2011 Act. The Oregon Department of Natural Resources may
undertake the collection or enforcement of any such liability,
duty or obligation.
(2) The rights and obligations of the State Department of Fish
and Wildlife, or of the State Fish and Wildlife Commission,
legally incurred under contracts, leases and business
transactions executed, entered into or begun before the operative
date of section 18 of this 2011 Act are transferred to the Oregon
Department of Natural Resources or the Oregon Natural Resources
Commission. For the purpose of succession to these rights and
obligations:
(a) The Oregon Department of Natural Resources is a
continuation of the State Department of Fish and Wildlife where
the right or obligation was incurred by the State Department of
Fish and Wildlife; or
(b) The Oregon Natural Resources Commission is a continuation
of the State Fish and Wildlife Commission where the right or
obligation was incurred by the State Fish and Wildlife
Commission. + }
{ +
(Rules) + }
SECTION 23. { + (1) Notwithstanding the transfer of duties,
functions and powers by section 18 of this 2011 Act, the rules of
the State Department of Fish and Wildlife, or of the State Fish
and Wildlife Commission, in effect on the operative date of
section 18 of this 2011 Act continue in effect until superseded
or repealed by rules of the Oregon Department of Natural
Resources or the Oregon Natural Resources Commission.
(2) References in rules of the State Department of Fish and
Wildlife to the State Department of Fish and Wildlife, or to an
officer or employee of the State Department of Fish and Wildlife,
are considered to be references to the Oregon Department of
Natural Resources or to an officer or employee of the Oregon
Department of Natural Resources.
(3) References in rules of the State Fish and Wildlife
Commission to the State Fish and Wildlife Commission, or to an
officer or employee of the State Fish and Wildlife Commission,
are considered to be references to the Oregon Natural Resources
Commission or to an officer or employee of the Oregon Natural
Resources Commission. + }
{ +
(References) + }
SECTION 24. { + (1) Whenever, in any uncodified law or
resolution of the Legislative Assembly or in any rule, document,
record or proceeding authorized by the Legislative Assembly,
reference is made to the State Department of Fish and Wildlife,
or to an officer or employee of the State Department of Fish and
Wildlife, the reference is considered to be a reference to the
Oregon Department of Natural Resources or to an officer or
employee of the Oregon Department of Natural Resources.
(2) Whenever, in any uncodified law or resolution of the
Legislative Assembly or in any rule, document, record or
proceeding authorized by the Legislative Assembly, reference is
made to the State Fish and Wildlife Commission, or to an officer
or employee of the State Fish and Wildlife Commission, the
reference is considered to be a reference to the Oregon Natural
Resources Commission or to an officer or employee of the Oregon
Natural Resources Commission. + }
{ +
(Agency Name Change) + }
SECTION 25. { + (1) For the purpose of harmonizing and
clarifying statutory law, the Legislative Counsel may substitute
for words designating the 'State Department of Fish and Wildlife,
' wherever they occur in statutory law, words designating the '
Oregon Department of Natural Resources. '
(2) For the purpose of harmonizing and clarifying statutory
law, the Legislative Counsel may substitute for words designating
the 'State Fish and Wildlife Director,' wherever they occur in
statutory law, words designating the 'Director of the Oregon
Department of Natural Resources.' + }
{ +
(Fund and Account Name Changes) + }
SECTION 26. { + For the purpose of harmonizing and clarifying
statutory law, the Legislative Counsel may substitute for words
designating the 'State Wildlife Fund,' 'Commercial Fisheries
Fund' or 'Fish and Wildlife Account,' wherever they occur in
statutory law, words designating the 'Oregon Natural Resources
Fund.' + }
{ +
(Commission Name Change) + }
SECTION 27. { + For the purpose of harmonizing and clarifying
statutory law, the Legislative Counsel may substitute for words
designating the 'State Fish and Wildlife Commission,' wherever
they occur in statutory law, words designating the 'Oregon
Natural Resources Commission.' + }
{ +
(Conforming Amendments) + }
SECTION 28. ORS 137.138 is amended to read:
137.138. (1) In addition to and not in lieu of any other
sentence it may impose, a court shall require a defendant
convicted under ORS 164.365, 166.663, 167.315, 498.056 or 498.146
or other state, county or municipal laws, for an act involving or
connected with injuring, damaging, mistreating or killing a
livestock animal, to forfeit any rights in weapons used in
connection with the act underlying the conviction.
(2) In addition to and not in lieu of any other sentence it may
impose, a court shall revoke any hunting license possessed by a
defendant convicted as described in subsection (1) of this
section.
(3) The { - State Fish and Wildlife Director - }
{ + Director of the Oregon Department of Natural Resources + }
shall refuse to issue a hunting license to a defendant convicted
as described under subsection (1) of this section for a period of
two years following the conviction.
(4) As used in this section, 'livestock animal' has the meaning
given { + that term + } in ORS 164.055.
SECTION 29. ORS 166.220 is amended to read:
166.220. (1) A person commits the crime of unlawful use of a
weapon if the person:
(a) Attempts to use unlawfully against another, or carries or
possesses with intent to use unlawfully against another, any
dangerous or deadly weapon as defined in ORS 161.015; or
(b) Intentionally discharges a firearm, blowgun, bow and arrow,
crossbow or explosive device within the city limits of any city
or within residential areas within urban growth boundaries at or
in the direction of any person, building, structure or vehicle
within the range of the weapon without having legal authority for
such discharge.
(2) This section does not apply to:
(a) Police officers or military personnel in the lawful
performance of their official duties;
(b) Persons lawfully defending life or property as provided in
ORS 161.219;
(c) Persons discharging firearms, blowguns, bows and arrows,
crossbows or explosive devices upon public or private shooting
ranges, shooting galleries or other areas designated and built
for the purpose of target shooting;
(d) Persons lawfully engaged in hunting in compliance with
rules and regulations adopted by the { - State Department of
Fish and Wildlife - } { + Oregon Department of Natural
Resources + }; or
(e) An employee of the United States Department of Agriculture,
acting within the scope of employment, discharging a firearm in
the course of the lawful taking of wildlife.
(3) Unlawful use of a weapon is a Class C felony.
SECTION 30. ORS 166.291, as amended by section 7, chapter 826,
Oregon Laws 2009, is amended to read:
166.291. (1) The sheriff of a county, upon a person's
application for an Oregon concealed handgun license, upon receipt
of the appropriate fees and after compliance with the procedures
set out in this section, shall issue the person a concealed
handgun license if the person:
(a)(A) Is a citizen of the United States; or
(B) Is a legal resident alien who can document continuous
residency in the county for at least six months and has declared
in writing to the United States Citizenship and Immigration
Services the intent to acquire citizenship status and can present
proof of the written declaration to the sheriff at the time of
application for the license;
(b) Is at least 21 years of age;
(c) Is a resident of the county;
(d) Has no outstanding warrants for arrest;
(e) Is not free on any form of pretrial release;
(f) Demonstrates competence with a handgun by any one of the
following:
(A) Completion of any hunter education or hunter safety course
approved by the { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources, + } or { + by + } a
similar agency of another state { + , + } if handgun safety was a
component of the course;
(B) Completion of any National Rifle Association firearms
safety or training course if handgun safety was a component of
the course;
(C) Completion of any firearms safety or training course or
class available to the general public offered by law enforcement,
community college, or private or public institution or
organization or firearms training school utilizing instructors
certified by the National Rifle Association or a law enforcement
agency if handgun safety was a component of the course;
(D) Completion of any law enforcement firearms safety or
training course or class offered for security guards,
investigators, reserve law enforcement officers or any other law
enforcement officers if handgun safety was a component of the
course;
(E) Presents evidence of equivalent experience with a handgun
through participation in organized shooting competition or
military service;
(F) Is licensed or has been licensed to carry a firearm in this
state, unless the license has been revoked; or
(G) Completion of any firearms training or safety course or
class conducted by a firearms instructor certified by a law
enforcement agency or the National Rifle Association if handgun
safety was a component of the course;
(g) Has never been convicted of a felony or found guilty,
except for insanity under ORS 161.295, of a felony;
(h) Has not been convicted of a misdemeanor or found guilty,
except for insanity under ORS 161.295, of a misdemeanor within
the four years prior to the application;
(i) Has not been committed to the Oregon Health Authority under
ORS 426.130;
(j) Has not been found to be mentally ill and is not subject to
an order under ORS 426.130 that the person be prohibited from
purchasing or possessing a firearm as a result of that mental
illness;
(k) Has been discharged from the jurisdiction of the juvenile
court for more than four years if, while a minor, the person was
found to be within the jurisdiction of the juvenile court for
having committed an act that, if committed by an adult, would
constitute a felony or a misdemeanor involving violence, as
defined in ORS 166.470;
(L) Has not been convicted of an offense involving controlled
substances or participated in a court-supervised drug diversion
program, except this disability does not operate to exclude a
person if:
(A) The person has been convicted only once of violating ORS
475.864 (3) and has not completed a court-supervised drug
diversion program under ORS 135.907; or
(B) The person has completed a court-supervised drug diversion
program under ORS 135.907 and has not been convicted of violating
ORS 475.864 (3);
(m) Is not subject to a citation issued under ORS 163.735 or an
order issued under ORS 30.866, 107.700 to 107.735 or 163.738;
(n) Has not received a dishonorable discharge from the Armed
Forces of the United States; and
(o) Is not required to register as a sex offender in any state.
(2) A person who has been granted relief under ORS 166.274 or
166.293 or section 5, chapter 826, Oregon Laws 2009, or 18 U.S.C.
925(c) or has had the person's record expunged under the laws of
this state or equivalent laws of other jurisdictions is not
subject to the disabilities in subsection (1)(g) to (L) of this
section.
(3) Before the sheriff may issue a license:
(a) The application must state the applicant's legal name,
current address and telephone number, date and place of birth,
hair and eye color and height and weight. The application must
also list the applicant's residence address or addresses for the
previous three years. The application must contain a statement by
the applicant that the applicant meets the requirements of
subsection (1) of this section. The application may include the
Social Security number of the applicant if the applicant
voluntarily provides this number. The application must be signed
by the applicant.
(b) The applicant must submit to fingerprinting and
photographing by the sheriff. The sheriff shall fingerprint and
photograph the applicant and shall conduct any investigation
necessary to corroborate the requirements listed under subsection
(1) of this section. If a nationwide criminal records check is
necessary, the sheriff shall request the Department of State
Police to conduct the check, including fingerprint
identification, through the Federal Bureau of Investigation. The
Federal Bureau of Investigation shall return the fingerprint
cards used to conduct the criminal records check and may not keep
any record of the fingerprints. The Department of State Police
shall report the results of the fingerprint-based criminal
records check to the sheriff. The Department of State Police
shall also furnish the sheriff with any information about the
applicant that the Department of State Police may have in its
possession from its central bureau of criminal identification
including, but not limited to, manual or computerized criminal
offender information.
(4) Application forms for concealed handgun licenses shall be
supplied by the sheriff upon request. The forms shall be uniform
throughout the state in substantially the following form:
_________________________________________________________________
APPLICATION FOR LICENSE TO CARRY
CONCEALED HANDGUN
Date_____
I hereby declare as follows:
I am a citizen of the United States or a legal resident alien
who can document continuous residency in the county for at least
six months and have declared in writing to the United States
Citizenship and Immigration Services my intention to become a
citizen and can present proof of the written declaration to the
sheriff at the time of this application. I am at least 21 years
of age. I have been discharged from the jurisdiction of the
juvenile court for more than four years if, while a minor, I was
found to be within the jurisdiction of the juvenile court for
having committed an act that, if committed by an adult, would
constitute a felony or a misdemeanor involving violence, as
defined in ORS 166.470. I have never been convicted of a felony
or found guilty, except for insanity under ORS 161.295, of a
felony in the State of Oregon or elsewhere. I have not, within
the last four years, been convicted of a misdemeanor or found
guilty, except for insanity under ORS 161.295, of a misdemeanor.
Except as provided in ORS 166.291 (1)(L), I have not been
convicted of an offense involving controlled substances or
completed a court-supervised drug diversion program. There are no
outstanding warrants for my arrest and I am not free on any form
of pretrial release. I have not been committed to the Oregon
Health Authority under ORS 426.130, nor have I been found
mentally ill and presently subject to an order prohibiting me
from purchasing or possessing a firearm because of mental
illness. If any of the previous conditions do apply to me, I have
been granted relief or wish to petition for relief from the
disability under ORS 166.274 or 166.293 or section 5, chapter
826, Oregon Laws 2009, or 18 U.S.C. 925(c) or have had the
records expunged. I am not subject to a citation issued under ORS
163.735 or an order issued under ORS 30.866, 107.700 to 107.735
or 163.738. I have never received a dishonorable discharge from
the Armed Forces of the United States. I am not required to
register as a sex offender in any state. I understand I will be
fingerprinted and photographed.
Legal name ________
Age ____ Date of birth _____
Place of birth ________
Social Security number _______
(Disclosure of your Social Security account number is voluntary.
Solicitation of the number is authorized under ORS 166.291. It
will be used only as a means of identification.)
Proof of identification (Two pieces of current identification are
required, one of which must bear a photograph of the applicant.
The type of identification and the number on the identification
are to be filled in by the sheriff.):
1.________
2.________
Height ___ Weight ___
Hair color ___ Eye color ___
Current address _____
(List residence addresses for the
past three years on the back.)
City ___ County ___ Zip ___
Phone ___
I have read the entire text of this application, and the
statements therein are correct and true. (Making false statements
on this application is a misdemeanor.)
__________
(Signature of Applicant)
Character references.
__________________
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
Name Address
__________________
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
Name Address
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
Approved __ Disapproved __ by __
Competence with handgun demonstrated by ___ (to be filled in by
sheriff)
Date ___ Fee Paid ___
License No. ___
_________________________________________________________________
(5)(a) Fees for concealed handgun licenses are:
(A) $15 to the Department of State Police for conducting the
fingerprint check of the applicant.
(B) $50 to the sheriff for the issuance or renewal of a
concealed handgun license.
(C) $15 to the sheriff for the duplication of a license because
of loss or change of address.
(b) The sheriff may enter into an agreement with the Department
of Transportation to produce the concealed handgun license.
(6) No civil or criminal liability shall attach to the sheriff
or any authorized representative engaged in the receipt and
review of, or an investigation connected with, any application
for, or in the issuance, denial or revocation of, any license
under ORS 166.291 to 166.295 as a result of the lawful
performance of duties under those sections.
(7) Immediately upon acceptance of an application for a
concealed handgun license, the sheriff shall enter the
applicant's name into the Law Enforcement Data System indicating
that the person is an applicant for a concealed handgun license
or is a license holder.
(8) The county sheriff may waive the residency requirement in
subsection (1)(c) of this section for a resident of a contiguous
state who has a compelling business interest or other legitimate
demonstrated need.
(9) For purposes of subsection (1)(c) of this section, a person
is a resident of a county if the person:
(a) Has a current Oregon driver license issued to the person
showing a residence address in the county;
(b) Is registered to vote in the county and has a memorandum
card issued to the person under ORS 247.181 showing a residence
address in the county;
(c) Has documentation showing that the person currently leases
or owns real property in the county; or
(d) Has documentation showing that the person filed an Oregon
tax return for the most recent tax year showing a residence
address in the county.
SECTION 31. ORS 166.291, as amended by sections 7 and 10,
chapter 826, Oregon Laws 2009, is amended to read:
166.291. (1) The sheriff of a county, upon a person's
application for an Oregon concealed handgun license, upon receipt
of the appropriate fees and after compliance with the procedures
set out in this section, shall issue the person a concealed
handgun license if the person:
(a)(A) Is a citizen of the United States; or
(B) Is a legal resident alien who can document continuous
residency in the county for at least six months and has declared
in writing to the United States Citizenship and Immigration
Services the intent to acquire citizenship status and can present
proof of the written declaration to the sheriff at the time of
application for the license;
(b) Is at least 21 years of age;
(c) Is a resident of the county;
(d) Has no outstanding warrants for arrest;
(e) Is not free on any form of pretrial release;
(f) Demonstrates competence with a handgun by any one of the
following:
(A) Completion of any hunter education or hunter safety course
approved by the { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources, + } or { + by + } a
similar agency of another state { + , + } if handgun safety was a
component of the course;
(B) Completion of any National Rifle Association firearms
safety or training course if handgun safety was a component of
the course;
(C) Completion of any firearms safety or training course or
class available to the general public offered by law enforcement,
community college, or private or public institution or
organization or firearms training school utilizing instructors
certified by the National Rifle Association or a law enforcement
agency if handgun safety was a component of the course;
(D) Completion of any law enforcement firearms safety or
training course or class offered for security guards,
investigators, reserve law enforcement officers or any other law
enforcement officers if handgun safety was a component of the
course;
(E) Presents evidence of equivalent experience with a handgun
through participation in organized shooting competition or
military service;
(F) Is licensed or has been licensed to carry a firearm in this
state, unless the license has been revoked; or
(G) Completion of any firearms training or safety course or
class conducted by a firearms instructor certified by a law
enforcement agency or the National Rifle Association if handgun
safety was a component of the course;
(g) Has never been convicted of a felony or found guilty,
except for insanity under ORS 161.295, of a felony;
(h) Has not been convicted of a misdemeanor or found guilty,
except for insanity under ORS 161.295, of a misdemeanor within
the four years prior to the application;
(i) Has not been committed to the Oregon Health Authority under
ORS 426.130;
(j) Has not been found to be mentally ill and is not subject to
an order under ORS 426.130 that the person be prohibited from
purchasing or possessing a firearm as a result of that mental
illness;
(k) Has been discharged from the jurisdiction of the juvenile
court for more than four years if, while a minor, the person was
found to be within the jurisdiction of the juvenile court for
having committed an act that, if committed by an adult, would
constitute a felony or a misdemeanor involving violence, as
defined in ORS 166.470;
(L) Has not been convicted of an offense involving controlled
substances or participated in a court-supervised drug diversion
program, except this disability does not operate to exclude a
person if:
(A) The person has been convicted only once of violating ORS
475.864 (3) and has not completed a court-supervised drug
diversion program under ORS 135.907; or
(B) The person has completed a court-supervised drug diversion
program under ORS 135.907 and has not been convicted of violating
ORS 475.864 (3);
(m) Is not subject to a citation issued under ORS 163.735 or an
order issued under ORS 30.866, 107.700 to 107.735 or 163.738;
(n) Has not received a dishonorable discharge from the Armed
Forces of the United States; and
(o) Is not required to register as a sex offender in any state.
(2) A person who has been granted relief under ORS 166.274 or
166.293 or 18 U.S.C. 925(c) or has had the person's record
expunged under the laws of this state or equivalent laws of other
jurisdictions is not subject to the disabilities in subsection
(1)(g) to (L) of this section.
(3) Before the sheriff may issue a license:
(a) The application must state the applicant's legal name,
current address and telephone number, date and place of birth,
hair and eye color and height and weight. The application must
also list the applicant's residence address or addresses for the
previous three years. The application must contain a statement by
the applicant that the applicant meets the requirements of
subsection (1) of this section. The application may include the
Social Security number of the applicant if the applicant
voluntarily provides this number. The application must be signed
by the applicant.
(b) The applicant must submit to fingerprinting and
photographing by the sheriff. The sheriff shall fingerprint and
photograph the applicant and shall conduct any investigation
necessary to corroborate the requirements listed under subsection
(1) of this section. If a nationwide criminal records check is
necessary, the sheriff shall request the Department of State
Police to conduct the check, including fingerprint
identification, through the Federal Bureau of Investigation. The
Federal Bureau of Investigation shall return the fingerprint
cards used to conduct the criminal records check and may not keep
any record of the fingerprints. The Department of State Police
shall report the results of the fingerprint-based criminal
records check to the sheriff. The Department of State Police
shall also furnish the sheriff with any information about the
applicant that the Department of State Police may have in its
possession from its central bureau of criminal identification
including, but not limited to, manual or computerized criminal
offender information.
(4) Application forms for concealed handgun licenses shall be
supplied by the sheriff upon request. The forms shall be uniform
throughout the state in substantially the following form:
_________________________________________________________________
APPLICATION FOR LICENSE TO CARRY
CONCEALED HANDGUN
Date_____
I hereby declare as follows:
I am a citizen of the United States or a legal resident alien
who can document continuous residency in the county for at least
six months and have declared in writing to the United States
Citizenship and Immigration Services my intention to become a
citizen and can present proof of the written declaration to the
sheriff at the time of this application. I am at least 21 years
of age. I have been discharged from the jurisdiction of the
juvenile court for more than four years if, while a minor, I was
found to be within the jurisdiction of the juvenile court for
having committed an act that, if committed by an adult, would
constitute a felony or a misdemeanor involving violence, as
defined in ORS 166.470. I have never been convicted of a felony
or found guilty, except for insanity under ORS 161.295, of a
felony in the State of Oregon or elsewhere. I have not, within
the last four years, been convicted of a misdemeanor or found
guilty, except for insanity under ORS 161.295, of a misdemeanor.
Except as provided in ORS 166.291 (1)(L), I have not been
convicted of an offense involving controlled substances or
completed a court-supervised drug diversion program. There are no
outstanding warrants for my arrest and I am not free on any form
of pretrial release. I have not been committed to the Oregon
Health Authority under ORS 426.130, nor have I been found
mentally ill and presently subject to an order prohibiting me
from purchasing or possessing a firearm because of mental
illness. If any of the previous conditions do apply to me, I have
been granted relief or wish to petition for relief from the
disability under ORS 166.274 or 166.293 or 18 U.S.C. 925(c) or
have had the records expunged. I am not subject to a citation
issued under ORS 163.735 or an order issued under ORS 30.866,
107.700 to 107.735 or 163.738. I have never received a
dishonorable discharge from the Armed Forces of the United
States. I am not required to register as a sex offender in any
state. I understand I will be fingerprinted and photographed.
Legal name ________
Age ____ Date of birth _____
Place of birth ________
Social Security number _______
(Disclosure of your Social Security account number is voluntary.
Solicitation of the number is authorized under ORS 166.291. It
will be used only as a means of identification.)
Proof of identification (Two pieces of current identification are
required, one of which must bear a photograph of the applicant.
The type of identification and the number on the identification
are to be filled in by the sheriff.):
1.________
2.________
Height ___ Weight ___
Hair color ___ Eye color ___
Current address _____
(List residence addresses for the
past three years on the back.)
City ___ County ___ Zip ___
Phone ___
I have read the entire text of this application, and the
statements therein are correct and true. (Making false statements
on this application is a misdemeanor.)
__________
(Signature of Applicant)
Character references.
__________________
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
Name Address
__________________
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
Name Address
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
Approved __ Disapproved __ by __
Competence with handgun demonstrated by ___ (to be filled in by
sheriff)
Date ___ Fee Paid ___
License No. ___
_________________________________________________________________
(5)(a) Fees for concealed handgun licenses are:
(A) $15 to the Department of State Police for conducting the
fingerprint check of the applicant.
(B) $50 to the sheriff for the issuance or renewal of a
concealed handgun license.
(C) $15 to the sheriff for the duplication of a license because
of loss or change of address.
(b) The sheriff may enter into an agreement with the Department
of Transportation to produce the concealed handgun license.
(6) No civil or criminal liability shall attach to the sheriff
or any authorized representative engaged in the receipt and
review of, or an investigation connected with, any application
for, or in the issuance, denial or revocation of, any license
under ORS 166.291 to 166.295 as a result of the lawful
performance of duties under those sections.
(7) Immediately upon acceptance of an application for a
concealed handgun license, the sheriff shall enter the
applicant's name into the Law Enforcement Data System indicating
that the person is an applicant for a concealed handgun license
or is a license holder.
(8) The county sheriff may waive the residency requirement in
subsection (1)(c) of this section for a resident of a contiguous
state who has a compelling business interest or other legitimate
demonstrated need.
(9) For purposes of subsection (1)(c) of this section, a person
is a resident of a county if the person:
(a) Has a current Oregon driver license issued to the person
showing a residence address in the county;
(b) Is registered to vote in the county and has a memorandum
card issued to the person under ORS 247.181 showing a residence
address in the county;
(c) Has documentation showing that the person currently leases
or owns real property in the county; or
(d) Has documentation showing that the person filed an Oregon
tax return for the most recent tax year showing a residence
address in the county.
SECTION 32. ORS 166.660 is amended to read:
166.660. (1) A person commits the crime of unlawful
paramilitary activity if the person:
(a) Exhibits, displays or demonstrates to another person the
use, application or making of any firearm, explosive or
incendiary device or any technique capable of causing injury or
death to persons and intends or knows that such firearm,
explosive or incendiary device or technique will be unlawfully
employed for use in a civil disorder; or
(b) Assembles with one or more other persons for the purpose of
training with, practicing with or being instructed in the use of
any firearm, explosive or incendiary device or technique capable
of causing injury or death to persons with the intent to
unlawfully employ such firearm, explosive or incendiary device or
technique in a civil disorder.
(2)(a) Nothing in this section makes unlawful any act of any
law enforcement officer performed in the otherwise lawful
performance of the officer's official duties.
(b) Nothing in this section makes unlawful any activity of the
{ - State Department of Fish and Wildlife - } { + Oregon
Department of Natural Resources + }, or any activity intended to
teach or practice self-defense or self-defense techniques, such
as karate clubs or self-defense clinics, and similar lawful
activity, or any facility, program or lawful activity related to
firearms instruction and training intended to teach the safe
handling and use of firearms, or any other lawful sports or
activities related to the individual recreational use or
possession of firearms, including but not limited to hunting
activities, target shooting, self-defense, firearms collection or
any organized activity including, but not limited to any hunting
club, rifle club, rifle range or shooting range which does not
include a conspiracy as defined in ORS 161.450 or the knowledge
of or the intent to cause or further a civil disorder.
(3) Unlawful paramilitary activity is a Class C felony.
(4) As used in this section:
(a) 'Civil disorder' means acts of physical violence by
assemblages of three or more persons which cause damage or
injury, or immediate danger thereof, to the person or property of
any other individual.
(b) 'Firearm' has the meaning given that term in ORS 166.210.
(c) 'Explosive' means a chemical compound, mixture or device
that is commonly used or intended for the purpose of producing a
chemical reaction resulting in a substantially instantaneous
release of gas and heat, including but not limited to dynamite,
blasting powder, nitroglycerin, blasting caps and nitrojelly, but
excluding fireworks as defined in ORS 480.110 (1), black powder,
smokeless powder, small arms ammunition and small arms ammunition
primers.
(d) 'Law enforcement officer' means any duly constituted police
officer of the United States, any state, any political
subdivision of a state or the District of Columbia, and also
includes members of the military reserve forces or National Guard
as defined in 10 U.S.C. 101 (9), members of the organized militia
of any state or territory of the United States, the Commonwealth
of Puerto Rico or the District of Columbia not included within
the definition of National Guard as defined by 10 U.S.C. 101 (9),
members of the Armed Forces of the United States and such persons
as are defined in ORS 161.015 (4) when in the performance of
official duties.
SECTION 33. ORS 181.715 is amended to read:
181.715. (1) The Department of State Police or another criminal
justice agency designated by the Director of the Oregon
Department of Administrative Services shall operate a Criminal
Justice Information Standards program that coordinates
information among state criminal justice agencies. The program
shall:
(a) Ensure that in developing new information systems, data can
be retrieved to support evaluation of criminal justice planning
and programs, including, but not limited to, the ability of the
programs to reduce future criminal conduct;
(b) Ensure that maximum effort is made for the safety of public
safety officers;
(c) Establish methods and standards for data interchange and
information access between criminal justice information systems,
in compliance with the technology standards and policies of the
Oregon Department of Administrative Services;
(d) Design and implement improved applications for exchange of
agency information; and
(e) Implement the capability to exchange images between
criminal justice agencies.
(2) The program shall develop a plan to accelerate data sharing
and information integration among criminal justice agencies. The
plan shall include, but is not limited to, priorities, timelines,
development costs, resources needed, the projected ongoing cost
of support, critical success factors and any known barriers to
accomplishing the plan. Representatives of criminal justice
agencies and public safety agencies, including but not limited to
local law enforcement agencies, courts of criminal jurisdiction,
district attorneys, city attorneys with criminal prosecutive
functions, public defender organizations established under ORS
chapter 151, community corrections directors, jail managers and
county juvenile departments, shall be invited to participate in
the planning process. The program shall present the plan to the
Director of the Oregon Department of Administrative Services no
later than May 30 of each even-numbered year for development of
the Governor's budget report. The program shall submit the plan
to the Joint Legislative Committee on Information Management and
Technology no later than December 31 of each even-numbered year.
(3) Notwithstanding the meaning given 'criminal justice agency'
in ORS 181.010, as used in this section and ORS 181.720, '
criminal justice agency' includes, but is not limited to:
(a) The Judicial Department;
(b) The Attorney General;
(c) The Department of Corrections;
(d) The Department of State Police;
(e) Any other state agency with law enforcement authority
designated by order of the Governor;
(f) The Department of Transportation;
(g) The State Board of Parole and Post-Prison Supervision;
(h) The Department of Public Safety Standards and Training;
(i) The { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + };
(j) The Oregon Liquor Control Commission;
(k) The Oregon Youth Authority; and
(L) The State Commission on Children and Families.
SECTION 34. ORS 181.725 is amended to read:
181.725. (1) There is established a Criminal Justice
Information Standards Advisory Board to advise the Department of
State Police or the criminal justice agency designated by the
Director of the Oregon Department of Administrative Services
under ORS 181.715 (1) about the department's or the agency's
duties under ORS 181.715. The board consists of the following
members:
(a) The State Court Administrator or the administrator's
designee;
(b) The Director of the Department of Corrections or the
director's designee;
(c) The Superintendent of State Police or the superintendent's
designee;
(d) The executive director of the Oregon Criminal Justice
Commission or the executive director's designee;
(e) The Director of Transportation or the director's designee;
(f) The chairperson of the State Board of Parole and
Post-Prison Supervision or the chairperson's designee;
(g) The Director of the Department of Public Safety Standards
and Training or the director's designee;
(h) A chief of police designated by the Oregon Association
Chiefs of Police;
(i) A sheriff designated by the Oregon Sheriffs' Association;
(j) A jail manager designated by the Oregon Jail Managers'
Association;
(k) A county juvenile department director designated by the
Oregon Juvenile Department Directors' Association;
(L) A community corrections agency director designated by the
Oregon Association of Community Corrections Directors;
(m) A district attorney designated by the Oregon District
Attorneys Association;
(n) The administrator of the Enterprise Information Strategy
and Policy Division of the Oregon Department of Administrative
Services or the administrator's designee;
(o) The Director of the Oregon Youth Authority or the
director's designee;
(p) The { - State Fish and Wildlife Director - }
{ + Director of the Oregon Department of Natural Resources + }
or the director's designee;
(q) The administrator of the Oregon Liquor Control Commission
or the administrator's designee; and
(r) The staff director of the State Commission on Children and
Families or the staff director's designee.
(2) The board shall meet at such times and places as the board
deems necessary.
(3) The members of the board are not entitled to compensation
but are entitled to expenses as provided in ORS 292.495.
SECTION 35. ORS 197.770 is amended to read:
197.770. (1) Any firearms training facility in existence on
September 9, 1995, shall be allowed to continue operating until
such time as the facility is no longer used as a firearms
training facility.
(2) For purposes of this section, a 'firearms training
facility' is an indoor or outdoor facility that provides training
courses and issues certifications required:
(a) For law enforcement personnel;
(b) By the { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + }; or
(c) By nationally recognized programs that promote shooting
matches, target shooting and safety.
SECTION 36. ORS 215.203 is amended to read:
215.203. (1) Zoning ordinances may be adopted to zone
designated areas of land within the county as exclusive farm use
zones. Land within such zones shall be used exclusively for farm
use except as otherwise provided in ORS 215.213, 215.283 or
215.284. Farm use zones shall be established only when such
zoning is consistent with the comprehensive plan.
(2)(a) As used in this section, 'farm use' means the current
employment of land for the primary purpose of obtaining a profit
in money by raising, harvesting and selling crops or the feeding,
breeding, management and sale of, or the produce of, livestock,
poultry, fur-bearing animals or honeybees or for dairying and the
sale of dairy products or any other agricultural or horticultural
use or animal husbandry or any combination thereof. 'Farm use'
includes the preparation, storage and disposal by marketing or
otherwise of the products or by-products raised on such land for
human or animal use. 'Farm use' also includes the current
employment of land for the primary purpose of obtaining a profit
in money by stabling or training equines including but not
limited to providing riding lessons, training clinics and
schooling shows. 'Farm use' also includes the propagation,
cultivation, maintenance and harvesting of aquatic, bird and
animal species that are under the jurisdiction of the
{ - State Fish and Wildlife Commission, to the extent allowed
by the rules adopted by the commission - } { + Oregon
Department of Natural Resources, to the extent allowed by the
rules adopted by the Oregon Natural Resources Commission + }.
'Farm use' includes the on-site construction and maintenance of
equipment and facilities used for the activities described in
this subsection. 'Farm use ' does not include the use of land
subject to the provisions of ORS chapter 321, except land used
exclusively for growing cultured Christmas trees as defined in
subsection (3) of this section or land described in ORS 321.267
(3) or 321.824 (3).
(b) 'Current employment' of land for farm use includes:
(A) Farmland, the operation or use of which is subject to any
farm-related government program;
(B) Land lying fallow for one year as a normal and regular
requirement of good agricultural husbandry;
(C) Land planted in orchards or other perennials, other than
land specified in subparagraph (D) of this paragraph, prior to
maturity;
(D) Land not in an exclusive farm use zone which has not been
eligible for assessment at special farm use value in the year
prior to planting the current crop and has been planted in
orchards, cultured Christmas trees or vineyards for at least
three years;
(E) Wasteland, in an exclusive farm use zone, dry or covered
with water, neither economically tillable nor grazeable, lying in
or adjacent to and in common ownership with a farm use land and
which is not currently being used for any economic farm use;
(F) Except for land under a single family dwelling, land under
buildings supporting accepted farm practices, including the
processing facilities allowed by ORS 215.213 (1)(u) and 215.283
(1)(r) and the processing of farm crops into biofuel as
commercial activities in conjunction with farm use under ORS
215.213 (2)(c) and 215.283 (2)(a);
(G) Water impoundments lying in or adjacent to and in common
ownership with farm use land;
(H) Any land constituting a woodlot, not to exceed 20 acres,
contiguous to and owned by the owner of land specially valued for
farm use even if the land constituting the woodlot is not
utilized in conjunction with farm use;
(I) Land lying idle for no more than one year where the absence
of farming activity is due to the illness of the farmer or member
of the farmer's immediate family. For purposes of this paragraph,
illness includes injury or infirmity whether or not such illness
results in death;
(J) Any land described under ORS 321.267 (3) or 321.824 (3);
(K) Land used for the primary purpose of obtaining a profit in
money by breeding, raising, kenneling or training of greyhounds
for racing; and
(L) Land used for the processing of farm crops into biofuel, as
defined in ORS 315.141, if:
(i) Only the crops of the landowner are being processed;
(ii) The biofuel from all of the crops purchased for processing
into biofuel is used on the farm of the landowner; or
(iii) The landowner is custom processing crops into biofuel
from other landowners in the area for their use or sale.
(c) As used in this subsection, 'accepted farming practice '
means a mode of operation that is common to farms of a similar
nature, necessary for the operation of such farms to obtain a
profit in money, and customarily utilized in conjunction with
farm use.
(3) 'Cultured Christmas trees' means trees:
(a) Grown on lands used exclusively for that purpose, capable
of preparation by intensive cultivation methods such as plowing
or turning over the soil;
(b) Of a marketable species;
(c) Managed to produce trees meeting U.S. No. 2 or better
standards for Christmas trees as specified by the Agriculture
Marketing Services of the United States Department of
Agriculture; and
(d) Evidencing periodic maintenance practices of shearing for
Douglas fir and pine species, weed and brush control and one or
more of the following practices: Basal pruning, fertilizing,
insect and disease control, stump culture, soil cultivation,
irrigation.
{ + NOTE: + } Section 37 was deleted. Subsequent sections
were not renumbered.
SECTION 38. ORS 308A.056 is amended to read:
308A.056. (1) As used in ORS 308A.050 to 308A.128, 'farm use'
means the current employment of land for the primary purpose of
obtaining a profit in money by:
(a) Raising, harvesting and selling crops.
(b) Feeding, breeding, managing or selling livestock, poultry,
fur-bearing animals or honeybees or the produce thereof.
(c) Dairying and selling dairy products.
(d) Stabling or training equines, including but not limited to
providing riding lessons, training clinics and schooling shows.
(e) Propagating, cultivating, maintaining or harvesting aquatic
species and bird and animal species to the extent allowed by the
rules adopted by the { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + }.
(f) On-site constructing and maintaining equipment and
facilities used for the activities described in this subsection.
(g) Preparing, storing or disposing of, by marketing or
otherwise, the products or by-products raised for human or animal
use on land described in this section.
(h) Implementing a remediation plan previously presented to the
assessor for the county in which the land that is the subject of
the plan is located.
(i) Using land described in this section for any other
agricultural or horticultural use or animal husbandry or any
combination thereof.
(2) 'Farm use' does not include the use of land subject to
timber and forestland taxation under ORS chapter 321, except land
used exclusively for growing cultured Christmas trees or land
described in ORS 321.267 (3) or 321.824 (3) (relating to land
used to grow certain hardwood timber, including hybrid
cottonwood).
(3) For purposes of this section, land is currently employed
for farm use if the land is:
(a) Farmland, the operation or use of which is subject to any
farm-related government program;
(b) Land lying fallow for one year as a normal and regular
requirement of good agricultural husbandry;
(c) Land planted in orchards or other perennials, other than
land specified in paragraph (d) of this subsection, prior to
maturity;
(d) Land not in an exclusive farm use zone that has not been
eligible for assessment at special farm use value in the year
prior to planting the current crop and has been planted in
orchards, cultured Christmas trees or vineyards for at least
three years;
(e) Wasteland, in an exclusive farm use zone, dry or covered
with water, neither economically tillable nor grazeable, lying in
or adjacent to and in common ownership with farm use land and
that is not currently being used for any economic farm use;
(f) Except for land under a single family dwelling, land under
buildings supporting accepted farming practices, including the
processing facilities allowed by ORS 215.213 (1)(u) and 215.283
(1)(r) and the processing of farm crops into biofuel as
commercial activities in conjunction with farm use under ORS
215.213 (2)(c) and 215.283 (2)(a);
(g) Water impoundments lying in or adjacent to and in common
ownership with farm use land;
(h) Any land constituting a woodlot, not to exceed 20 acres,
contiguous to and owned by the owner of land specially valued for
farm use even if the land constituting the woodlot is not
utilized in conjunction with farm use;
(i) Land lying idle for no more than one year when the absence
of farming activity is the result of the illness of the farmer or
a member of the farmer's immediate family, including injury or
infirmity, regardless of whether the illness results in death;
(j) Land described under ORS 321.267 (3) or 321.824 (3)
(relating to land used to grow certain hardwood timber, including
hybrid cottonwood);
(k) Land used for the primary purpose of obtaining a profit in
money by breeding, raising, kenneling or training greyhounds for
racing;
(L) Land subject to a remediation plan previously presented to
the assessor for the county in which the land that is the subject
of the plan is located; or
(m) Land used for the processing of farm crops into biofuel, as
defined in ORS 315.141, if:
(i) Only the crops of the landowner are being processed;
(ii) The biofuel from all of the crops purchased for processing
into biofuel is used on the farm of the landowner; or
(iii) The landowner is custom processing crops into biofuel
from other landowners in the area for their use or sale.
(4) As used in this section:
(a) 'Accepted farming practice' means a mode of operation that
is common to farms of a similar nature, necessary for the
operation of these similar farms to obtain a profit in money and
customarily utilized in conjunction with farm use.
(b) 'Cultured Christmas trees' means trees:
(A) Grown on lands used exclusively for that purpose, capable
of preparation by intensive cultivation methods such as plowing
or turning over the soil;
(B) Of a marketable species;
(C) Managed to produce trees meeting U.S. No. 2 or better
standards for Christmas trees as specified by the Agricultural
Marketing Service of the United States Department of Agriculture;
and
(D) Evidencing periodic maintenance practices of shearing for
Douglas fir and pine species, weed and brush control and one or
more of the following practices:
(i) Basal pruning;
(ii) Fertilizing;
(iii) Insect and disease control;
(iv) Stump culture;
(v) Soil cultivation; or
(vi) Irrigation.
SECTION 39. ORS 308A.350 is amended to read:
308A.350. As used in ORS 308A.350 to 308A.383:
(1) 'Owner' means the party or parties having the fee interest
in land, except that where land is subject to a real estate sales
contract, 'owner' means the contract vendee under a recorded
contract.
{ - (2) 'Department' means the State Department of Fish and
Wildlife. - }
{ - (3) - } { + (2) + } 'Designated riparian land' means
the beds of streams, the adjacent vegetation communities, and the
land thereunder, which are predominantly influenced by their
association with water, not to extend more than 100 feet landward
of the line of nonaquatic vegetation, which are privately owned
and which qualify for exemption under ORS 308A.350 to 308A.383.
{ - (4) - } { + (3) + } 'Urban growth boundary' means an
urban growth boundary contained in a city or county comprehensive
plan that has been acknowledged by the { - Land Conservation
and Development Commission - } { + Oregon Natural Resources
Commission + } pursuant to ORS 197.251 or an urban growth
boundary that has been adopted by a metropolitan service district
council under ORS 268.390 (3).
SECTION 40. ORS 308A.356 is amended to read:
308A.356. An owner of land desiring designation and exemption
of that land from ad valorem taxation as riparian land under ORS
308A.350 to 308A.383 shall make application to the county
assessor upon forms prescribed by the Department of Revenue and
supplied by the county assessor. The owner shall describe the
land for which designation as riparian lands is requested and the
current use of the land. The application shall include any other
information as is reasonably necessary to properly designate an
area of land as riparian land under ORS 308A.350 to 308A.383 with
a verification of the truth thereof. Applications to the county
assessor shall be made on or before December 31 of the calendar
year preceding the first tax year for which such designation is
requested. The county assessor shall notify the { - State
Department of Fish and Wildlife - } { + Oregon Department of
Natural Resources + } if a recorded sale or transfer of the land
granted exemption under ORS 308A.350 to 308A.383 occurs for the
purpose of determining continued eligibility of the land for the
exemption. The { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + } shall notify the
county assessor in writing of the finding within 120 days after
the date the county assessor's notice is mailed or delivered.
Failure of the assessor to notify the { - State Department of
Fish and Wildlife - } { + Oregon Department of Natural
Resources + } shall not prevent the imposition of the additional
tax prescribed by ORS 308A.368 (2).
SECTION 41. ORS 308A.359 is amended to read:
308A.359. (1) The { - State Department of Fish and
Wildlife - } { + Oregon Department of Natural Resources + }
shall develop standards and criteria for the designation of land
as riparian. Upon the receipt of an application referred to it by
the county assessor, the department shall determine if the land
described in the application is qualified for designation as
riparian.
(2) The { + Oregon + } Department { + of Natural
Resources + } shall review riparian management plans submitted by
applicants to assure compliance with the intent of ORS 308A.353.
Standards and criteria to be used to determine consistency with
the intent of ORS 308A.350 to 308A.383 shall be developed by the
department and shall be reviewed by the department annually.
These criteria shall be in addition to the following provisions
limiting participation under ORS 308A.350 to 308A.383:
(a)(A) Subject to subparagraph (B) of this paragraph, and
except as provided in subparagraph (C) of this paragraph, only
lands planned and zoned as forest or agricultural lands,
including rangeland, in compliance with the statewide planning
goals adopted under ORS 197.240 and outside adopted urban growth
boundaries shall qualify.
(B) Lands that, as of July 1, 1997, are outside adopted urban
growth boundaries and also as of that date are planned and zoned
as forest or agricultural lands, including rangeland, in
compliance with the statewide planning goals adopted under ORS
197.240 qualify, for tax years beginning on or after July 1,
1998, for riparian designation if { - they - } { + the
lands + } are managed in the manner provided for designated
riparian lands and are otherwise eligible for riparian
designation under ORS 308A.350 to 308A.383 even though the lands
are no longer outside adopted urban growth boundaries or planned
or zoned as forest or agriculture.
(C) Lands within the boundaries of a city and an urban growth
boundary, if the city and county governing bodies have authorized
the exemption under ORS 308A.360, may qualify if the lands are
managed in the manner provided for riparian designation under ORS
308A.350 to 308A.383.
(b) Land management activities permitted within designated
riparian lands shall be consistent with the intent of ORS
308A.350 to 308A.383.
(3) Land that the { - State Department of Fish and
Wildlife - } { + Oregon Department of Natural Resources + }
determines may qualify for designation as riparian shall be
approved by the department for designation and exemption under
ORS 308A.350 to 308A.383 only if the owner of the land has
developed and implemented, in accordance with the standards
adopted under subsections (1) and (2) of this section, adequate
measures for:
(a) The continued protection of the land; or
(b) Techniques for rehabilitation of the riparian land and
those measures or techniques are approved by the department.
(4) The { + Oregon + } Department { + of Natural
Resources + } may approve the application for designation of land
as riparian with respect to only part of the land that is the
subject of the application, but if any part of the application is
denied, the applicant may withdraw the entire application.
SECTION 42. ORS 308A.360 is amended to read:
308A.360. (1) Land located within the boundaries of a city and
an urban growth boundary is exempt from the ad valorem property
taxes of the city and county in which the land is located if:
(a) The governing bodies of the city and the county in which
the land is located have both adopted ordinances or resolutions:
(A) Permitting the designation of land as riparian land; and
(B) If possible, describing how the city or county will provide
technical assistance to landowners preparing riparian management
plans pursuant to ORS 308A.359 and will monitor landowner
compliance with approved plans; and
(b) The land qualifies for designation and exemption as
riparian land under ORS 308A.350 to 308A.383.
(2) Copies of the authorizing ordinances or resolutions must be
given to the county assessor and to the { - State Department of
Fish and Wildlife - } { + Oregon Department of Natural
Resources + }.
SECTION 43. ORS 308A.362 is amended to read:
308A.362. (1) The { - State Department of Fish and
Wildlife - } { + Oregon Department of Natural Resources + }
shall immediately notify the county assessor and the applicant of
its approval or disapproval of an application { + , + } which
shall in no event be later than April 1 of the year following the
year of receipt of the application. Subject to subsection (2) of
this section and the mileage limitation of ORS 308A.380, an
application not denied by April 1 shall be deemed approved, and
the land that is the subject of the application shall be
considered to be land that qualifies under ORS 308A.359.
(2) An application for land described in ORS 308A.359 (2)(a)(B)
shall be approved only if filed on or before five years after the
date the land became land no longer outside adopted urban growth
boundaries or planned or zoned as forest or agricultural land.
(3) An application for land described in ORS 308A.360 (1) may
be approved only if ordinances or resolutions authorizing the
exemption have been adopted by the city and county in which the
land is located and these ordinances or resolutions are in effect
on the date of application.
(4) The { + Oregon + } Department { + of Natural
Resources + } may not approve more than 50 applications for land
described in ORS 308A.360 (1) for any tax year. An application
that is not approved because of the limitation imposed by this
subsection shall be held for consideration for the next tax year.
(5)(a) When the { + Oregon + } Department { + of Natural
Resources + } approves land for designation as riparian under ORS
308A.359, { - it - } { + the department + } shall enter an
order of approval and file a copy of the order with the county
assessor within 10 days. Upon receipt of the order, the county
assessor shall enter a notation on the assessment roll that the
land described in the order is exempt from ad valorem taxation.
(b) If the land is as described in ORS 308A.360 (1), the
exemption shall apply only to the ad valorem property taxes of
the city and county that have authorized the exemption.
(6) On approval of an application filed under ORS 308A.356, for
each year of designation the assessor shall indicate on the
assessment and tax roll that the property is exempt from taxation
as riparian land or, in the case of land described in ORS
308A.360 (1), partially exempt from taxation. The assessor shall
also indicate on the tax roll that the land is subject to
potential additional taxes as provided by ORS 308A.368, by adding
the notation 'designated riparian land (potential add'l tax). '
(7) Any owner whose application for designation has been denied
may appeal to the { + Oregon + } Department { + of Natural
Resources + } under the provisions of ORS chapter 183 governing
contested cases.
SECTION 44. ORS 308A.365 is amended to read:
308A.365. (1) When land has once been designated as riparian
under ORS 308A.350 to 308A.383, it shall remain under that
designation and it shall not be applied to any use other than
those specifically included in the management plan or consistent
with the intent of ORS 308A.350 to 308A.383 unless withdrawn from
designation as provided in subsection (2) of this section.
(2) During any year after designation, notice of request for
withdrawal may be given by the owner to the county assessor or
assessors of the county or counties in which the land is
situated. The county assessor or assessors, as the case may be,
shall withdraw such land from designation as riparian and shall
immediately give written notice of the withdrawal to the
{ - State Department of Fish and Wildlife - } { + Oregon
Department of Natural Resources + }.
SECTION 45. ORS 308A.368 is amended to read:
308A.368. (1) When land that has been designated as exempt from
taxation under ORS 308A.350 to 308A.383 as riparian is applied to
some use other than that compatible with riparian use, as defined
in the management plan, except through compliance with ORS
308A.365 (2), or except as a result of the exercise of the power
of eminent domain, the owner shall within 60 days after the
change in use notify the county assessor of the change in use.
The assessor or assessors shall withdraw the land from
designation and immediately give written notice of the withdrawal
to the { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + }. Thereafter, the
land shall be assessed and taxed as other property similarly
situated is assessed and taxed.
(2) The assessor, upon discovery of the change in use to a use
other than that compatible with riparian or upon withdrawal by
the owner of the land from designation, shall compute an
additional tax equal to the difference between the taxes assessed
against the land and the taxes that otherwise would have been
assessed against the land had the land not received exemption for
each of the last five years (or such lesser number of years,
corresponding to the number of years of exemption under ORS
308A.350 to 308A.383 applicable to the property after its most
recent change of ownership) preceding the tax year in which the
land was withdrawn from designation.
SECTION 46. ORS 308A.374 is amended to read:
308A.374. (1) The assessor shall at all times be authorized to
demand and receive reports by registered or certified mail from
owners of land designated as riparian under ORS 308A.350 to
308A.383 as to the use of the same. If the owner fails, after 90
days' notice in writing by certified mail to comply with such
demand, the assessor shall give written notice to the { - State
Department of Fish and Wildlife - } { + Oregon Department of
Natural Resources + } and to the landowner of the assessor's
intention to withdraw the land from designation and apply the
payments and penalties provided in ORS 308A.368 not less than 30
days prior to automatic withdrawal of the riparian land from
designation. If, prior to the expiration of the 30-day period,
the landowner fails to file the requested report, the assessor
immediately shall withdraw the land from designation and apply
the payments and penalties provided in ORS 308A.368.
(2) If the assessor has reason to believe that land designated
as riparian land no longer qualifies for designation and special
assessment, the assessor shall request the { - State Department
of Fish and Wildlife - } { + Oregon Department of Natural
Resources + } to determine if the land continues to qualify. The
request shall be in writing. Upon receipt of the request, the
{ - State Department of Fish and Wildlife - }
{ + department + } shall inspect the property and may take
whatever steps are necessary to determine if the land continues
to qualify for special assessment. The { - State Department of
Fish and Wildlife - } { + department + } shall notify the
assessor of the determination made pursuant to the request of the
assessor within 120 days after the request is received. A
determination by the { - State Department of Fish and
Wildlife - } { + department + } that the property no longer
qualifies shall constitute a discovery described in ORS 308A.368
(2).
SECTION 46a. ORS 308A.380 is amended to read:
308A.380. (1)(a) For the tax years beginning prior to July 1,
2004, the { + Oregon + } Department { + of Natural
Resources + } may approve for designation as riparian land not
more than 200 miles of private streambank in any county.
(b) The land approved for designation as riparian land under
this subsection each year shall be in addition to, and not
restricted by, the approval of designation of land as riparian
during the previous year. However, the department may, in
addition, approve for designation as riparian land each year an
amount of land equal to the amount of land withdrawn from, or
disqualified for, designation as riparian land during the
previous year, and, an amount of land equal to the difference
between the amount of land approved for designation as riparian
land during the previous years and the maximum established under
paragraph (a) of this subsection.
(2) If the { + Oregon + } Department { + of Natural
Resources + } receives applications for designation of land as
riparian in excess of the maximum established under subsection
(1) of this section, preference shall be afforded according to
the date the application was filed with the county assessor.
Applications which are not approved because the maximum has been
reached shall be held for consideration for approval for the next
tax year.
SECTION 47. ORS 308A.383 is amended to read:
308A.383. The Department of Revenue and the { - State
Department of Fish and Wildlife - } { + Oregon Department of
Natural Resources + } shall make such rules consistent with ORS
308A.350 to 308A.383 as may be necessary or desirable to permit
its effective administration.
SECTION 48. ORS 308A.406 is amended to read:
308A.406. As used in ORS 308A.403 to 308A.430:
(1) 'Cooperating agency' means the { - State Department of
Fish and Wildlife - } { + Oregon Department of Natural
Resources + }, the United States Fish and Wildlife Service, the
Natural Resources Conservation Service of the United States
Department of Agriculture, the Oregon State University Extension
Service or other persons with wildlife habitat conservation and
management training considered appropriate for the preparation of
a wildlife habitat conservation and management plan, as
established by rules adopted by the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + }
under ORS 308A.409.
{ - (2) 'Department' means the State Department of Fish and
Wildlife. - }
{ - (3) - } { + (2) + } 'Lot' has the meaning given that
term in ORS 92.010.
{ - (4) - } { + (3) + } 'Parcel' has the meaning given that
term in ORS 215.010.
{ - (5) - } { + (4) + } 'Wildlife habitat conservation and
management plan' or 'plan' means a plan developed by a
cooperating agency and landowner that specifies the conservation
and management practices, including farm and forest uses
consistent with the overall intent of the plan, that will be
conducted to preserve and improve wildlife habitat on an affected
lot or parcel.
SECTION 49. ORS 308A.409 is amended to read:
308A.409. (1)(a) The { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + } shall
adopt rules specifying the form and content of a wildlife habitat
conservation and management plan that is sufficient for land that
is subject to the plan to be specially assessed under ORS
308A.403 to 308A.430.
(b) The rules adopted pursuant to this section shall:
(A) Specify the conservation and management practices that are
appropriate to preserve and enhance wildlife common to the
diverse regions of this state; and
(B) Specify that wildlife habitat conservation and management
plans may include those efforts that improve water quality,
protect and restore fish and wildlife habitats, recover
threatened or endangered species, enhance streamflows and
maintain or restore long-term ecological health, diversity and
productivity on a broad geographic scale.
(2) Under rules adopted pursuant to this section, the
commission shall allow:
(a) Accepted agricultural and forestry practices as an integral
part of the wildlife habitat conservation and management
practices specified in an approved plan; and
(b) The lease or sale of in-stream water rights as an integral
part of the wildlife habitat conservation and management
practices specified in an approved plan.
(3) The rules shall be reviewed periodically by the commission
and revised when considered necessary or appropriate by the
commission.
SECTION 50. ORS 308A.412 is amended to read:
308A.412. (1) An owner of land described in ORS 308A.415 who
seeks special assessment under ORS 308A.403 to 308A.430 shall
first submit a proposed wildlife habitat conservation and
management plan to the { - State Department of Fish and
Wildlife - } { + Oregon Department of Natural Resources + } for
review.
(2) The { + Oregon + } Department { + of Natural
Resources + } shall review each submitted plan for compliance
with the standards set forth in the rules adopted under ORS
308A.409 and shall determine if the plan is being implemented.
(3) Upon completing a review of a proposed plan and determining
that the plan is in compliance with the standards set forth in
the rules adopted under ORS 308A.409 and is being implemented,
the { + Oregon + } Department { + of Natural Resources + }
shall issue to the landowner a written declaration that the land
is subject to a wildlife habitat conservation and management plan
approved by the department and that the landowner has begun
implementing the plan.
(4) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } may establish by
rule a limit on the number of plans that may be approved in each
calendar year. An application that is not approved because the
maximum number of plans for a year has already been approved
shall be held for consideration for approval for the next year.
SECTION 51. ORS 308A.415 is amended to read:
308A.415. (1) At the request of the governing body of a county,
the { - State Fish and Wildlife Commission - } { + Oregon
Natural Resources Commission + } may designate the following land
in unincorporated areas within the county as eligible for
wildlife habitat special assessment:
(a) Any land that is zoned for exclusive farm use, mixed farm
and forest use or forest use under a land use planning goal
protecting agricultural land or forestland; or
(b) Land that is clearly identifiable as containing significant
wildlife habitat.
(2) At the request of the governing body of a city, the
commission may designate the following land within the city as
eligible for wildlife habitat special assessment:
(a) Any land that is zoned for exclusive farm use, mixed farm
and forest use or forest use under a land use planning goal
protecting agricultural land or forestland; or
(b) Land that is clearly identifiable as containing significant
wildlife habitat.
(3) With the prior consent of the governing body of a city, the
county in which all or a part of the city is located may apply to
the commission on behalf of the city for designation of any area
that is within both the city and the county as eligible for
wildlife habitat special assessment.
(4) The commission may designate land described in subsection
(1) or (2) of this section as eligible for wildlife habitat
special assessment only if the commission finds:
(a) That designation will promote the findings in ORS 308A.400
and the policy in ORS 308A.403; and
(b) That the land described in subsection (1) or (2) of this
section is of the nature and quality to allow for implementation
of wildlife habitat conservation and management plans approved
under rules adopted pursuant to ORS 308A.409.
(5) Land may not qualify for wildlife habitat special
assessment under ORS 308A.424 unless the commission has
determined that the land is eligible for wildlife habitat special
assessment under this section.
SECTION 52. ORS 308A.418 is amended to read:
308A.418. (1) The governing body of the city or county that
requested designation under ORS 308A.415 may request that the
{ - State Fish and Wildlife Commission - } { + Oregon Natural
Resources Commission + } remove that designation.
(2) The commission shall remove the designation if:
(a) The city or county demonstrates that the designation
creates an economic burden for the city or county; and
(b) The commission finds that the economic burden is
significant.
(3) In making its determination under subsection (2) of this
section, the commission shall give significant weight to the
demonstration of economic burden made by the city or county.
SECTION 53. ORS 308A.421 is amended to read:
308A.421. A determination by the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + } to
designate land as eligible for wildlife habitat special
assessment under ORS 308A.415 or to remove that designation under
ORS 308A.418 shall for property tax purposes be effective as of
the tax year beginning the July 1 immediately following the
determination.
SECTION 54. ORS 308A.424 is amended to read:
308A.424. (1) When a wildlife habitat conservation and
management plan is approved by the { - State Department of Fish
and Wildlife - } { + Oregon Department of Natural Resources + }
and is being implemented, the owner of the land subject to the
plan may apply to the county assessor to receive wildlife habitat
special assessment.
(2) Application shall be made to the county assessor on forms
prepared by the Department of Revenue and supplied by the county
assessor.
(3) Applications for wildlife habitat special assessment shall
be made to the county assessor on or before April 1 of the first
assessment year for which the assessment is desired. The
application shall include:
(a) A copy of the wildlife habitat conservation and management
plan.
(b) A certified copy of the declaration described in ORS
308A.412 (3).
(c) A description of the land that is the subject of the
application that is sufficient for the county assessor to
determine whether the land for which wildlife habitat special
assessment is sought is within an area eligible for wildlife
habitat special assessment.
(d) A statement that the applicant is aware of the potential
tax liability that arises under ORS 308A.703 upon
disqualification from wildlife habitat special assessment.
(e) An affirmation that the statements contained in the
application are true.
(4) An application to the county assessor shall be deemed
approved unless, before August 15 of the year in which the
application was filed, the assessor notifies the applicant in
writing that the application has been wholly or partially denied.
(5) Whether land that is subject to a wildlife habitat
conservation and management plan qualifies for special assessment
under this section shall be determined as of January 1 of the
assessment year. If land so qualified becomes disqualified prior
to July 1 of the same assessment year, the land shall be valued
under ORS 308.232 at its real market value as defined by law
without regard to this section and shall be assessed at its
assessed value under ORS 308.146 or as otherwise provided by law.
If the land becomes disqualified on or after July 1, the land
shall continue to qualify for special assessment as provided in
this section for the current tax year.
SECTION 55. ORS 308A.430 is amended to read:
308A.430. (1) Land subject to a wildlife habitat conservation
and management plan shall be inspected by the { - State
Department of Fish and Wildlife - } { + Oregon Department of
Natural Resources + } periodically to ensure that the land is
managed in accordance with the plan. If the plan is not being
implemented as approved, the department shall notify the
landowner and require compliance measures to be taken within six
months. If the plan is still not being implemented as required by
the department at the end of the six-month period, the department
shall notify the county assessor that the plan is not being
implemented as approved.
(2) The county assessor shall disqualify the land from wildlife
habitat special assessment upon:
(a) Notice from the { + Oregon + } Department { + of Natural
Resources + } as described in subsection (1) of this section;
(b) Notice of request by the landowner for withdrawal of the
land from wildlife habitat special assessment;
(c) Sale or transfer to an ownership making the land exempt
from ad valorem property taxation;
(d) The land qualifying for another special assessment listed
in ORS 308A.703 (1); or
(e) The act of recording a subdivision plat under ORS chapter
92.
(3) If, pursuant to subsection (2)(e) of this section, the
county assessor disqualifies land for wildlife habitat special
assessment upon the act of recording a subdivision plat, the land
may requalify for wildlife habitat special assessment upon:
(a) Payment of all additional tax and interest that remains due
and owing as a result of the disqualification;
(b) Compliance with ORS 308A.403 to 308A.430; and
(c) Submission of an application for wildlife habitat special
assessment under ORS 308A.424 and approval of the application by
the county assessor.
(4) Upon disqualification, additional taxes shall be determined
as provided in ORS 308A.700 to 308A.733.
SECTION 56. ORS 308A.709 is amended to read:
308A.709. Notwithstanding that land may have been disqualified
from special assessment, no additional taxes may be imposed under
ORS 308A.703 if, as of the date the disqualification is taken
into account on the assessment and tax roll, the land is any of
the following:
(1) Acquired by a governmental agency as a result of the lawful
exercise of the power of eminent domain or the threat or
imminence thereof.
(2) Acquired by purchase, agreement or donation under ORS
390.121 (relating to { - State Parks and Recreation
Commission - } acquisitions { + by the Oregon Natural Resources
Commission + }).
(3) Acquired by a city, county, metropolitan service district
created under ORS chapter 268 or park and recreation district
organized under ORS chapter 266 for public recreational purposes
or for the preservation of scenic or historic places.
(4) Acquired for wildlife management purposes under ORS
496.146.
(5) Public property that was leased or rented to a taxable
owner as described in ORS 307.110 at the time of
disqualification, and the reason for the disqualification was the
termination of the lease under which the land was assessed.
(6) Land that ceases to be located within the boundaries of an
exclusive farm use zone as the result of a change in the
boundaries of the zone or removal of the zone following an action
by the governing body of the county or city that:
(a) Was not requested or initiated by the owner of the land; or
(b) Was requested by { - : - } { + the Oregon Department of
Natural Resources for public park purposes under ORS 390.121 or
wildlife management purposes under ORS 496.146. + }
{ - (A) The State Parks and Recreation Department for public
park purposes under ORS 390.121; or - }
{ - (B) The State Fish and Wildlife Commission for wildlife
management purposes under ORS 496.146. - }
(7) Forestland acquired by a federal, state or local
governmental agency. In the case of an acquisition described in
this subsection, a lien for additional taxes and interest may not
attach on the day preceding the day of transfer of the forestland
to the governmental agency.
SECTION 57. ORS 308A.743 is amended to read:
308A.743. (1) Land that is specially assessed under ORS
308A.050 to 308A.128, 308A.300 to 308A.330, 308A.403 to 308A.430,
308A.450 to 308A.465, 321.257 to 321.390, 321.700 to 321.754 or
321.805 to 321.855, or land that is exempt from property tax
under ORS 308A.350 to 308A.383, may not be disqualified from the
special assessment or exemption, and may not be subject to
additional taxes under ORS 308A.700 to 308A.733 or other law, if
the property owner has:
(a) Entered into a wildlife habitat conservation and management
plan, as described in ORS 308A.403 to 308A.430, approved by the
{ - State Department of Fish and Wildlife - } { + Oregon
Department of Natural Resources + }; or
(b) Executed a conservation easement, as defined in ORS
271.715, or a deed restriction and the land:
(A) Is managed in compliance with the conservation easement or
deed restriction; and
(B) Continues to meet the requirements for special assessment
or exemption. The existence of the conservation easement or deed
restriction may not cause the disqualification of the land from
special assessment or exemption or preclude the disqualification
of the land from special assessment or exemption for some other
reason.
(2) A property owner who executes a conservation easement may
convey the easement to a land trust or other qualified entity
without a loss of benefits under this section.
(3) In order for land to be subject to this section:
(a) The conservation easement, deed restriction or wildlife
habitat conservation and management plan must be recorded in the
records of the clerk of the county in which the land is located;
and
(b) A copy of the conservation easement, deed restriction or
wildlife habitat conservation and management plan, along with the
property tax account number for the land, must be sent to the
county assessor.
{ + NOTE: + } Section 58 was deleted. Subsequent sections
were not renumbered.
SECTION 59. ORS 315.138 is amended to read:
315.138. (1) There shall be allowed a credit against tax due
under ORS chapter 316, or if the taxpayer is a corporation, under
ORS chapter 317, for taxpayers that install screening devices,
by-pass devices or fishways, pursuant to ORS 498.306 or 509.585,
and the diversion is not part of a hydroelectric project required
to be licensed under the Federal Energy Regulatory Commission.
Except as allowed in subsection (4) of this section, the credit
shall be taken in the tax year in which the final certification
is issued under subsection (10) of this section.
(2) The credit shall be equal to 50 percent of the taxpayer's
net certified costs of installing a screening device, by-pass
device or fishway. The total credit allowed shall not exceed
$5,000 per device installed.
(3) The credit allowed in any one year shall not exceed the tax
liability of the taxpayer.
(4) Any tax credit otherwise allowable under this section which
is not used by the taxpayer in a particular tax year may be
carried forward and offset against the taxpayer's tax liability
for the next succeeding tax year. Any credit remaining unused in
such next succeeding tax year may be carried forward and used in
the second succeeding tax year. Any credit remaining unused in
such second succeeding tax year may be carried forward and used
in the third succeeding tax year. Any credit remaining unused in
such third succeeding tax year may be carried forward and used in
the fourth succeeding tax year. Any credit remaining unused in
such fourth succeeding tax year may be carried forward and used
in the fifth succeeding tax year, but may not be used in any tax
year thereafter.
(5) The credit provided by this section shall be in addition to
and not in lieu of any depreciation or amortization deduction to
which the taxpayer otherwise may be entitled with respect to the
installation of a screening device, by-pass device or fishway.
The taxpayer's adjusted basis for determining gain or loss shall
not be further decreased by any tax credits allowed under this
section.
(6) In the case of a credit allowed under this section for
purposes of ORS chapter 316:
(a) A nonresident shall be allowed the credit in the same
manner and subject to the same limitations as a resident.
However, the credit shall be prorated using the proportion
provided in ORS 316.117.
(b) If a change in the taxable year of a taxpayer occurs as
described in ORS 314.085, or if the Department of Revenue
terminates the taxpayer's taxable year under ORS 314.440, the
credit allowed by this section shall be prorated or computed in a
manner consistent with ORS 314.085.
(c) If a change in the status of a taxpayer from resident to
nonresident or from nonresident to resident occurs, the credit
allowed by this section shall be determined in a manner
consistent with ORS 316.117.
(7) To qualify for the credit the taxpayer must be issued a
certificate by the { - State Department of Fish and
Wildlife - } { + Oregon Department of Natural Resources + }.
(8) To obtain credit under subsection (1) of this section, any
person proposing to apply for certification of a screening
device, by-pass device or fishway, before installing the
screening device, by-pass device or fishway, shall file a request
for preliminary certification with the { - State Department of
Fish and Wildlife - } { + Oregon Department of Natural
Resources + }. The request shall be in a form prescribed by the
{ - State Department of Fish and Wildlife - }
{ + department + }. The following conditions shall apply:
(a) Within 30 days of the receipt of a request for preliminary
certification, the { - State Department of Fish and
Wildlife - } { + department + } may require, as a condition
precedent to issuance of a preliminary certificate of approval,
the submission of plans and specifications. After examination
thereof, the { - State Department of Fish and Wildlife - }
{ + department + } may request corrections and revisions to the
plans and specifications. The
{ - State Department of Fish and Wildlife - }
{ + department + } may also require any pertinent information
necessary to determine whether the proposed screening device,
by-pass device or fishway is in accordance with { - State
Department of Fish and Wildlife - } { + department + }
requirements.
(b) If the { - State Department of Fish and Wildlife - }
{ + department + } determines that the proposed screening
device, by-pass device or fishway is in accordance with
{ - State Department of Fish and Wildlife - }
{ + department + } requirements, { - it - } { + the
department + } shall issue a preliminary certificate approving
the screening device, by-pass device or fishway. If the
{ - State Department of Fish and Wildlife - }
{ + department + } determines that the screening device, by-pass
device or fishway does not comply with { - State Department of
Fish and Wildlife - } { + department + } requirements, the
{ - State Department of Fish and Wildlife - }
{ + department + } shall issue an order denying certification.
(c) If within 90 days of the receipt of plans, specifications
or any subsequently requested revisions or corrections to the
plans and specifications or any other information required
pursuant to this section, the { - State Department of Fish and
Wildlife - } { + department + } fails to issue a preliminary
certificate of approval and the { - State Department of Fish
and Wildlife - } { + department + } fails to issue an order
denying certification, the preliminary certificate shall be
considered to have been issued. The capital investment must
comply with the plans, specifications and any corrections or
revisions thereto, if any, previously submitted.
(d) Within 30 days from the date of mailing of the order, any
person against whom an order is directed pursuant to paragraph
(b) of this subsection may demand a hearing. The demand shall be
in writing, shall state the grounds for hearing and shall be
mailed to the { - State Fish and Wildlife Director - }
{ + Director of the Oregon Department of Natural Resources + }.
The hearing shall be conducted in accordance with the applicable
provisions of ORS chapter 183.
(9) A screening device, by-pass device or fishway that is
installed by the { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + } pursuant to ORS
498.306 (8) in response to noncompliance by the person
responsible for the water diversion is not eligible for the
credit provided in subsection (1) of this section.
(10) Upon completion and pursuant to application for final
certification, final certification shall be issued by the
{ - State Department of Fish and Wildlife - } { + Oregon
Department of Natural Resources + } if the screening device,
by-pass device or fishway was constructed and installed in
accordance with { - State Department of Fish and Wildlife - }
{ + department + } requirements. Final certification shall
include a statement of the costs of installation as verified by
the { - State Department of Fish and Wildlife - }
{ + department + }. The credit allowed under this section shall
be claimed first for the tax year of the taxpayer in which final
certification is issued.
(11) Pursuant to the procedures for a contested case under ORS
chapter 183, the { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + } may order the
revocation of the certificate issued under this section of any
taxpayer, if { - it - } { + the department + } finds that:
(a) The certificate was obtained by fraud or misrepresentation;
or
(b) The holder of the certificate fails to meet { - State
Department of Fish and Wildlife - } { + department + }
requirements.
(12) As soon as the order of revocation under this section has
become final the { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + } shall notify the
Department of Revenue of such order.
(13) If the certificate of a screening device, by-pass device
or fishway is ordered revoked pursuant to subsection (11) of this
section, all prior tax relief provided to the holder of the
certificate by virtue of the certificate shall be forfeited and
the Department of Revenue shall proceed to collect those taxes
not paid by the certificate holder as a result of the tax relief
provided to the holder.
(14) If the certificate of a screening device, by-pass device
or fishway is ordered revoked pursuant to subsection (11) of this
section, the certificate holder shall be denied any further
relief provided under this section in connection with the
screening device, by-pass device or fishway, as the case may be,
from and after the date that the order of revocation becomes
final.
(15) In the event that the screening device, by-pass device or
fishway is destroyed by flood, natural disaster or act of God
before all of the credit has been used, the taxpayer may
nevertheless claim the credit as if no destruction had taken
place.
(16) Screening devices, by-pass devices or fishways that are
financed by funds obtained from the Water Development Fund,
pursuant to ORS 541.700 to 541.855, shall not be eligible for the
credit under any circumstances.
(17) The { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + } shall adopt rules
for carrying out the provisions of this section and report to the
interim committee created under ORS 171.605 to 171.640 to make
studies of and inquiries into state revenue matters.
SECTION 60. ORS 316.045 is amended to read:
316.045. (1) As used in this section:
(a) 'Farming' means:
(A) Raising, harvesting and selling crops;
(B) Feeding, breeding, managing or selling livestock, poultry,
fur-bearing animals or honeybees or the produce thereof;
(C) Dairying and selling dairy products;
(D) Stabling or training equines, including but not limited to
providing riding lessons, training clinics and schooling shows;
(E) Propagating, cultivating, maintaining or harvesting aquatic
species and bird and animal species to the extent allowed by the
rules adopted by the { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + };
(F) On-site constructing and maintaining equipment and
facilities used for the activities described in this subsection;
(G) Preparing, storing or disposing of, by marketing or
otherwise, the products or by-products raised for human or animal
use on land employed in activities described in this subsection;
or
(H) Any other agricultural or horticultural activity or animal
husbandry, or any combination of these activities, except that
'farming' does not include growing and harvesting trees of a
marketable species other than growing and harvesting cultured
Christmas trees or certain hardwood timber described in ORS
321.267 (3) or 321.824 (3).
(b) 'Section 1231 gain' has the meaning given that term in
section 1231 of the Internal Revenue Code.
(2) Notwithstanding ORS 316.037, taxable income that consists
of net long-term capital gain shall be subject to tax under this
chapter at a rate of five percent if all of the following
conditions apply:
(a) The gain is:
(A) Derived from the sale or exchange of capital assets
consisting of ownership interests in a corporation, partnership
or other entity in which, prior to the sale or exchange, the
taxpayer owned at least a 10 percent ownership interest; or
(B) Section 1231 gain.
(b) The property that was sold or exchanged consisted of:
(A) Ownership interests in a corporation, partnership or other
entity that is engaged in the trade or business of farming; or
(B) Property that is predominantly used in the trade or
business of farming.
(c) The sale or exchange is to a person who is not related to
the taxpayer under section 267 of the Internal Revenue Code.
(d) The sale or exchange constitutes a substantially complete
termination of all of the taxpayer's ownership interests in a
trade or business that is engaged in farming or a substantially
complete termination of all of the taxpayer's ownership interests
in property that is employed in the trade or business of farming.
Ownership of a farm dwelling or farm homesite does not constitute
ownership of property employed in the trade or business of
farming.
(3) If the taxpayer has net long-term capital gain derived in
part from the sale or exchange of property described in
subsection (2)(b) of this section and in part from the sale or
exchange of all other property, the net long-term capital gain
that is subject to tax under this section shall be determined as
follows:
(a) Compute the net long-term capital gain derived from all
property described in subsection (2)(b) of this section that was
sold or exchanged during the tax year.
(b) Compute the net capital gain or loss from the sale or
exchange of all other property during the tax year.
(c) If the amount determined under paragraph (b) of this
subsection is a net capital gain, the gain that is subject to tax
under subsection (2) of this section shall be the amount
determined under paragraph (a) of this subsection.
(d) If the amount determined under paragraph (b) of this
subsection is a net capital loss, the gain that is subject to tax
under subsection (2) of this section shall be the amount
determined under paragraph (a) of this subsection minus the
amount determined under paragraph (b) of this subsection.
SECTION 61. ORS 317.063 is amended to read:
317.063. (1) As used in this section:
(a) 'Farming' means:
(A) Raising, harvesting and selling crops;
(B) Feeding, breeding, managing or selling livestock, poultry,
fur-bearing animals or honeybees or the produce thereof;
(C) Dairying and selling dairy products;
(D) Stabling or training equines, including but not limited to
providing riding lessons, training clinics and schooling shows;
(E) Propagating, cultivating, maintaining or harvesting aquatic
species and bird and animal species to the extent allowed by the
rules adopted by the { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + };
(F) On-site constructing and maintaining equipment and
facilities used for the activities described in this subsection;
(G) Preparing, storing or disposing of, by marketing or
otherwise, the products or by-products raised for human or animal
use on land employed in activities described in this subsection;
or
(H) Any other agricultural or horticultural activity or animal
husbandry, or any combination of these activities, except that
'farming' does not include growing and harvesting trees of a
marketable species other than growing and harvesting cultured
Christmas trees or certain hardwood timber described in ORS
321.267 (3) or 321.824 (3).
(b) 'Section 1231 gain' has the meaning given that term in
section 1231 of the Internal Revenue Code.
(2) Notwithstanding ORS 317.061, taxable income that consists
of net long-term capital gain shall be subject to tax under this
chapter at a rate of five percent if all of the following
conditions apply:
(a) The gain is:
(A) Derived from the sale or exchange of capital assets
consisting of ownership interests in a corporation, partnership
or other entity in which, prior to the sale or exchange, the
taxpayer owned at least a 10 percent ownership interest; or
(B) Section 1231 gain.
(b) The property that was sold or exchanged consisted of:
(A) Ownership interests in a corporation, partnership or other
entity that is engaged in the trade or business of farming; or
(B) Property that is predominantly used in the trade or
business of farming.
(c) The sale or exchange is to a person who is not related to
the taxpayer under section 267 of the Internal Revenue Code.
(d) The sale or exchange constitutes a substantially complete
termination of all of the taxpayer's ownership interests in a
trade or business that is engaged in farming or a substantially
complete termination of all of the taxpayer's ownership interests
in property that is employed in the trade or business of farming.
(3) If the taxpayer has net long-term capital gain derived in
part from the sale or exchange of property described in
subsection (2)(b) of this section and in part from the sale or
exchange of all other property, the net long-term capital gain
that is subject to tax under this section shall be determined as
follows:
(a) Compute the net long-term capital gain derived from all
property described in subsection (2)(b) of this section that was
sold or exchanged during the tax year.
(b) Compute the net capital gain or loss from the sale or
exchange of all other property during the tax year.
(c) If the amount determined under paragraph (b) of this
subsection is a net capital gain, the gain that is subject to tax
under subsection (2) of this section shall be the amount
determined under paragraph (a) of this subsection.
(d) If the amount determined under paragraph (b) of this
subsection is a net capital loss, the gain that is subject to tax
under subsection (2) of this section shall be the amount
determined under paragraph (a) of this subsection minus the
amount determined under paragraph (b) of this subsection.
SECTION 62. ORS 419A.260 is amended to read:
419A.260. (1) As used in this section and ORS 419A.262:
(a) 'Contact' means any instance in which a person's act or
behavior, or alleged act or behavior, which could result in a
juvenile court's assumption of jurisdiction under ORS 419B.100
(1)(a) to (c) and (f) or 419C.005 comes to the attention of an
agency specified in paragraph (d) of this subsection.
(b) 'Expunction' means:
(A) The removal and destruction or sealing of a judgment or
order related to a contact and all records and references; and
(B) Where a record is kept by the Department of Human Services
or the Oregon Youth Authority, either the sealing of such record
by the department or the Oregon Youth Authority or, in a
multiperson file, the affixing to the front of the file, by the
department or the youth authority, a stamp or statement
identifying the name of the individual, the date of expunction
and instruction that no further reference shall be made to the
material that is subject to the expunction order except upon an
order of a court of competent jurisdiction.
(c) 'Person' includes a person under 18 years of age.
(d) 'Record' includes a fingerprint or photograph file, report,
exhibit or other material which contains information relating to
a person's contact with any law enforcement agency or juvenile
court or juvenile department and is kept manually, through the
use of electronic data processing equipment, or by any other
means by a law enforcement or public investigative agency, a
juvenile court or juvenile department or an agency of the State
of Oregon. 'Record' does not include:
(A) A transcript of a student's Youth Corrections Education
Program academic record;
(B) Material on file with a public agency which is necessary
for obtaining federal financial participation regarding financial
assistance or services on behalf of a person who has had a
contact;
(C) Records kept or disseminated by the Department of
Transportation, State Marine Board and { - State Fish and
Wildlife Commission - } { + Oregon Natural Resources Commission
+ }pursuant to juvenile or adult order or recommendation;
(D) Police and court records related to an order of waiver
where the matter is still pending in the adult court or on appeal
therefrom, or to any disposition as an adult pursuant to such
order;
(E) Records related to a support obligation;
(F) Medical records;
(G) Records of a proposed or adjudicated termination of
parental rights and adoptions;
(H) Any law enforcement record of a person who currently does
not qualify for expunction or of current investigations or cases
waived to the adult court;
(I) Records and case reports of the Oregon Supreme Court and
the Oregon Court of Appeals;
(J) Any records in cases under ORS 419C.005 in which a juvenile
court found a person to be within the jurisdiction of the court
based upon the person's commission of an act which if done by an
adult would constitute one of the following offenses:
(i) Aggravated murder under ORS 163.095;
(ii) Murder under ORS 163.115;
(iii) Attempt, solicitation or conspiracy to commit murder or
aggravated murder;
(iv) Manslaughter in the first degree under ORS 163.118;
(v) Manslaughter in the second degree under ORS 163.125;
(vi) Criminally negligent homicide under ORS 163.145;
(vii) Assault in the first degree under ORS 163.185;
(viii) Criminal mistreatment in the first degree under ORS
163.205;
(ix) Kidnapping in the first degree under ORS 163.235;
(x) Rape in the third degree under ORS 163.355;
(xi) Rape in the second degree under ORS 163.365;
(xii) Rape in the first degree under ORS 163.375;
(xiii) Sodomy in the third degree under ORS 163.385;
(xiv) Sodomy in the second degree under ORS 163.395;
(xv) Sodomy in the first degree under ORS 163.405;
(xvi) Unlawful sexual penetration in the second degree under
ORS 163.408;
(xvii) Unlawful sexual penetration in the first degree under
ORS 163.411;
(xviii) Sexual abuse in the third degree under ORS 163.415;
(xix) Sexual abuse in the second degree under ORS 163.425;
(xx) Sexual abuse in the first degree under ORS 163.427;
(xxi) Promoting prostitution under ORS 167.012;
(xxii) Compelling prostitution under ORS 167.017;
(xxiii) Aggravated driving while suspended or revoked under ORS
163.196;
(xxiv) Aggravated vehicular homicide under ORS 163.149; or
(xxv) An attempt to commit a crime listed in this subparagraph
other than manslaughter in the second degree and criminally
negligent homicide;
(K) Blood samples, buccal samples and other physical evidence
and identification information obtained, stored or maintained by
the Department of State Police under authority of ORS 137.076,
181.085 or 419C.473; or
(L) Records maintained in the Law Enforcement Data System under
ORS 181.592.
(e) 'Termination' means:
(A) For a person who is the subject of a record kept by a
juvenile court or juvenile department, the final disposition of a
case by informal means, by a decision not to place the person on
probation or make the person a ward of the court after the person
has been found to be within the court's jurisdiction, or by a
discontinuance of probation or of the court's wardship.
(B) For a person who is the subject of a record kept by a law
enforcement or public investigative agency, a juvenile court or
juvenile department or an agency of the State of Oregon, the
final disposition of the person's most recent contact with a law
enforcement agency.
(2) The juvenile court or juvenile department shall make
reasonable effort to provide written notice to a child who is
within the court's jurisdiction under ORS 419B.100 (1)(a) to (c)
and (f) or to a youth who is within the court's jurisdiction
under ORS 419C.005, and to the child's or youth's parent, of the
procedures for expunction of a record, the right to counsel under
this chapter, the legal effect of an expunction order and the
procedures for seeking relief from the duty to report as a sex
offender provided under ORS 181.823, at the following times:
(a) At any dispositional hearing or at the time of entering
into a formal accountability agreement;
(b) At the time of termination;
(c) Upon notice to the subject of an expunction pending
pursuant to application of a juvenile department or motion on a
juvenile court; and
(d) At the time of notice of execution of an expunction order.
SECTION 63. ORS 452.140 is amended to read:
452.140. The board of trustees of a district:
(1) May not apply pesticides to waters in the district that are
frequented by waterfowl or that contain any game fish without
obtaining annual approval { - of the State Fish and Wildlife
Commission - } { + from the Oregon Natural Resources
Commission + }.
(2) May not apply pesticides for public health vectors without
first obtaining approval { - of the State Fish and Wildlife
Commission - } { + from the commission + }.
SECTION 64. ORS 452.245 is amended to read:
452.245. In exercising its powers under ORS 452.210 to 452.250,
a county court:
(1) May not order the application of pesticides to waters in
the county that are frequented by waterfowl or that contain any
game fish without obtaining annual approval { - of the State
Fish and Wildlife Commission - } { + from the Oregon Natural
Resources Commission + }.
(2) May not order the application of pesticides for public
health vectors without first obtaining the approval { - of the
State Fish and Wildlife Commission - } { + from the
commission + }.
SECTION 65. ORS 468B.060 is amended to read:
468B.060. (1) Where the injury, death, contamination or
destruction of fish or other wildlife or injury or destruction of
fish or wildlife habitat results from pollution or from any
violation of the conditions set forth in any permit or of the
orders or rules of the Environmental Quality Commission, the
person responsible for the injury, death, contamination or
destruction shall be strictly liable to the state for the value
of the fish or wildlife so injured or destroyed and for all costs
of restoring fish and wildlife production in the affected areas,
including habitat restoration.
(2) In addition to the penalties provided for by law, the state
may seek recovery of such damages in any court of competent
jurisdiction in this state if the person responsible under
subsection (1) of this section fails or refuses to pay for the
value of the fish or wildlife so destroyed and for all costs of
restoring fish and wildlife production in the affected areas,
including habitat restoration, within a period of 60 days from
the date of mailing by registered or certified mail of written
demand therefor.
(3) Any action or suit for the recovery of damages described in
subsection (1) of this section shall be brought in the name of
the State of Oregon upon relation of the Department of
Environmental Quality or { - State Department of Fish and
Wildlife - } { + Oregon Department of Natural Resources + } or
the Attorney General. Amounts recovered under this section shall
be paid to the state agency having jurisdiction over the fish or
wildlife or fish or wildlife production for which damages were
recovered.
SECTION 66. ORS 468B.090 is amended to read:
468B.090. (1) The Department of Environmental Quality may issue
a permit to discharge shrimp and crab processing by-products into
the waters of an Oregon estuary under ORS 468B.050 or 468B.053
for the purpose of enhancing aquatic life production. The permit
shall impose the following conditions:
(a) No toxic substances shall be present in the by-products
discharged.
(b) The oxygen content of the estuarine waters shall not be
reduced.
(c) The discharge shall not create a public nuisance.
(d) Other beneficial uses of the estuary shall not be adversely
affected.
(2) The { - department shall consult the State Department of
Fish and Wildlife - } { + Department of Environmental Quality
shall consult with the Oregon Department of Natural Resources + }
and obtain its approval before issuing a permit under this
section.
SECTION 67. ORS 468B.400 is amended to read:
468B.400. The { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + } shall develop and
implement a program to provide wildlife rescue training for
volunteers. In developing the program, the { - State Department
of Fish and Wildlife - } { + department + } shall:
(1) Work with agencies responsible for wildlife protection in
other west coast states;
(2) Rely upon the oil wildlife rehabilitation plan developed
under ORS 468B.495; and
(3) Take such action as is required for reimbursement in
accordance with the provisions of the federal Oil Pollution Act
of 1990 (P.L. 101-380).
SECTION 68. ORS 468B.450 is amended to read:
468B.450. (1) Any person who willfully or negligently causes or
permits the discharge of oil into the waters of the state shall
incur, in addition to any other penalty provided by law, a civil
penalty commensurate with the amount of damage incurred. The
amount of the penalty shall be determined by the Director of the
Department of Environmental Quality with the advice of the
{ - State Fish and Wildlife Director - } { + Director of the
Oregon Department of Natural Resources + } after taking into
consideration the gravity of the violation, the previous record
of the violator in complying, or failing to comply, with the
provisions of ORS 468B.450 to 468B.460, and such other
considerations as the Director { + of the Department of
Environmental Quality + } considers appropriate. The penalty
provided for in this subsection shall be imposed and enforced in
accordance with ORS 468.135.
(2) The director may, upon written application therefor
received within 15 days after receipt of notice under ORS
468.135, and when considered in the best interest of this state
in carrying out the purposes of ORS chapters 468, 468A and 468B,
remit or mitigate any penalty provided for in subsection (1) of
this section or discontinue any prosecution to recover the same
upon such terms as the director in the director's discretion
considers proper.
SECTION 69. ORS 496.004 is amended to read:
496.004. As used in the wildlife laws, unless the context
requires otherwise:
(1) 'Angle' means to take or attempt to take a fish for
personal use by means involving hook and line.
{ - (2) 'Commission' means the State Fish and Wildlife
Commission created by ORS 496.090. - }
{ - (3) - } { + (2) + } 'Compatible' means capable of
existing in harmony so as to minimize conflict.
{ - (4) 'Department' means the State Department of Fish and
Wildlife created by ORS 496.080. - }
{ - (5) 'Director' means the State Fish and Wildlife Director
appointed pursuant to ORS 496.112. - }
{ - (6) - } { + (3) + } 'Endangered species' means:
(a) Any native wildlife species determined by the
{ - commission - } { + Oregon Natural Resources
Commission + } to be in danger of extinction throughout any
significant portion of its range within this state.
(b) Any native wildlife species listed as an endangered species
pursuant to the federal Endangered Species Act of 1973 (P.L.
93-205, 16 U.S.C. 1531), as amended.
{ - (7) 'Fund' means the State Wildlife Fund created by ORS
496.300. - }
{ - (8) - } { + (4) + } 'Fur-bearing mammal' means beaver,
bobcat, fisher, marten, mink, muskrat, otter, raccoon, red fox
and gray fox.
{ - (9) - } { + (5) + } 'Game mammal' means antelope, black
bear, cougar, deer, elk, moose, mountain goat, mountain sheep,
silver gray squirrel and gray wolf as a special status mammal
defined { + by the Oregon Natural Resources Commission + } by
{ - commission - } rule.
{ - (10) - } { + (6) + } 'Hunt' means to take or attempt to
take any wildlife by means involving the use of a weapon or with
the assistance of any mammal or bird.
{ - (11) - } { + (7) + } 'Manage' means to protect,
preserve, propagate, promote, utilize and control wildlife.
{ - (12) - } { + (8) + } 'Optimum level' means wildlife
population levels that provide self-sustaining species as well as
taking, nonconsumptive and recreational opportunities.
{ - (13) - } { + (9) + } 'Person with a disability' means a
person who complies with the requirement of ORS 496.018.
{ - (14) - } { + (10) + } 'Shellfish' has the meaning given
that term in ORS 506.011.
{ - (15) - } { + (11) + } 'Species' means any species or
subspecies of wildlife.
{ - (16) - } { + (12) + } 'Take' means to kill or obtain
possession or control of any wildlife.
{ - (17) - } { + (13) + } 'Threatened species' means:
(a) Any native wildlife species the commission determines is
likely to become an endangered species within the foreseeable
future throughout any significant portion of its range within
this state.
(b) Any native wildlife species listed as a threatened species
pursuant to the federal Endangered Species Act of 1973 (P.L.
93-205, 16 U.S.C. 1531), as amended.
{ - (18) - } { + (14) + } 'Trap' means to take or attempt
to take any wildlife by means involving the use of a trap, net,
snare or other device used for the purpose of capture.
{ - (19) - } { + (15) + } 'Wildlife' means fish, shellfish,
amphibians and reptiles, feral swine as defined by State
Department of Agriculture rule, wild birds as defined by
commission rule and other wild mammals as defined by { + the + }
commission { + by + } rule.
SECTION 70. ORS 496.012 is amended to read:
496.012. It is the policy of the State of Oregon that wildlife
shall be managed to prevent serious depletion of any indigenous
species and to provide the optimum recreational and aesthetic
benefits for present and future generations of the
{ - citizens - } { + residents + } of this state. In
furtherance of this policy, the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + }
shall represent the public interest of the State of Oregon and
implement the following coequal goals of wildlife management:
(1) To maintain all species of wildlife at optimum levels.
(2) To develop and manage the lands and waters of this state in
a manner that will enhance the production and public enjoyment of
wildlife.
(3) To permit an orderly and equitable utilization of available
wildlife.
(4) To develop and maintain public access to the lands and
waters of { - the - } { + this + } state and the wildlife
resources thereon.
(5) To regulate wildlife populations and the public enjoyment
of wildlife in a manner that is compatible with primary uses of
the lands and waters of { - the - } { + this + } state.
(6) To provide optimum recreational benefits.
(7) To make decisions that affect wildlife resources of
{ - the - } { + this + } state for the benefit of the wildlife
resources and to make decisions that allow for the best social,
economic and recreational utilization of wildlife resources by
all user groups.
SECTION 71. ORS 496.018 is amended to read:
496.018. In order to be considered a person with a disability
under the wildlife laws, a person shall provide to the
{ - State Fish and Wildlife Commission - } { + Oregon Natural
Resources Commission + } either:
(1) Written certification from a licensed physician, certified
nurse practitioner or licensed physician assistant that states
that the person:
(a) Is permanently unable to walk without the use of, or
assistance from, a brace, cane, crutch, prosthetic device,
wheelchair, scooter or walker;
(b) Is restricted by lung disease to the extent that the
person's forced expiratory volume for one second, when measured
by a spirometer, is less than 35 percent predicted, or arterial
oxygen tension is less than 55 mm/Hg on room air at rest;
(c) Has a cardiac condition to the extent that the person's
functional limitations are classified in severity as Class III or
Class IV, according to standards established by the American
Heart Association;
(d) Has a permanent, physical impairment that prevents the
person from holding or shooting a firearm or bow or from holding
a fishing rod in hand; or
(e) Has central visual acuity that permanently does not exceed
20/200 in the better eye with corrective lenses, or the widest
diameter of the visual field is no greater than 20 degrees; or
(2) Written proof that the last official certification of
record by the United States Department of Veterans Affairs or any
branch of the Armed Forces of the United States shows the person
to be at least 65 percent disabled.
SECTION 72. ORS 496.085 is amended to read:
496.085. (1) There is established within the { - State
Department of Fish and Wildlife - } { + Oregon Department of
Natural Resources + } the Fish Screening Task Force consisting of
seven members appointed by the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + }.
(2) Three members shall be appointed to represent agricultural
interests, three shall be appointed to represent fishing or fish
conservation interests and one member shall be appointed to
represent the public. Members of the task force shall serve for
two-year terms. No member of the task force shall serve for more
than three consecutive two-year terms.
(3) A member of the task force shall receive no compensation
for services as a member. However, subject to any applicable law
regulating travel and other expenses of state officers and
employees, a member shall be reimbursed for actual and necessary
travel and other expenses incurred in the performance of official
duties from such moneys as may be available therefor in the
{ - State Wildlife Fund - } { + Oregon Natural Resources
Fund + }.
(4) The task force shall meet at such times and places as may
be determined by the chair or by a majority of the members of the
task force.
(5) The duties of the task force are:
(a) To advise the department in the development of a
comprehensive cost-sharing program for the installation of fish
screening or by-pass devices in water diversions.
(b) To advise the department in establishing a stable and
equitable funding system for the installation and maintenance of
fish screening and by-pass devices.
(c) To advise the department in identifying sources and
applying for grants from local, state and federal governmental
agencies for funding the installation and maintenance of fish
screening and by-pass devices.
(d) To advise the department in monitoring fish screening
programs.
(e) To advise the department in a survey and study of fish
screening technology to determine the most cost-effective
alternatives for screening in the various situations that may be
encountered in the implementation of fish screening in this
state.
(f) To advise the department in preparing a report on the
capital costs and effectiveness of the program provided in ORS
498.306.
(g) To advise the department on the creation of the priority
criteria and the priority listing referred to in ORS 498.306
(14)(a) or (d).
SECTION 73. ORS 496.118 is amended to read:
496.118. { - (1) Subject to policy direction by the State
Fish and Wildlife Commission, the State Fish and Wildlife
Director shall: - } { + In administering the wildlife laws and
commercial fishing laws of this state, and subject to policy
direction by the Oregon Natural Resources Commission, the
Director of the Oregon Department of Natural Resources shall: + }
{ - (a) Be the administrative head of the State Department of
Fish and Wildlife; - }
{ - (b) Have power, within applicable budgetary limitations,
and in accordance with ORS chapter 240, to hire, assign, reassign
and coordinate personnel of the department; - }
{ - (c) Administer and enforce the wildlife laws of the
state; - }
{ - (d) - } { + (1) + } Be authorized to participate in any
proceeding before any public officer, commission or body of the
United States or any state for the purpose of representing the
{ - citizens - } { + interests + } of Oregon { + residents + }
concerning the wildlife resources of this state;
{ - (e) Establish such sections and divisions as are
necessary to properly carry out the work of the commission; - }
{ - (f) - } { + (2) + } Be responsible for the collection,
application and dissemination of information pertinent to the
management of the wildlife resources, and to the regulation of
the uses of such resources; and
{ - (g) - } { + (3) + } Coordinate any activities of the
{ - department related to a watershed enhancement project
approved by the Oregon Watershed Enhancement Board - }
{ + Oregon Department of Natural Resources related to a
watershed enhancement project approved by the department
+ }under ORS 541.375 with { + the + } activities of other
cooperating state and federal agencies { + that are
+ }participating in the project.
{ - (2) In addition to duties otherwise required by law, the
director shall prescribe internal policies and procedures for the
government of the department, the conduct of its employees, the
assignment and performance of its business and the custody, use
and preservation of its records, papers and property in a manner
consistent with applicable law. - }
{ - (3) - } { + (4) + } { - In addition to any other
duties assigned to the director, the director shall - } Report
quarterly on the activities of the department to the appropriate
legislative committee.
{ - (4) The director may delegate to any employee of the
department the exercise or discharge in the director's name of
any power, duty or function of whatever character, vested in or
imposed by law upon the director. The official act of a person so
acting in the director's name and by the director's authority
shall be considered to be an official act of the director. - }
{ - (5) The director may restrict or otherwise limit the
participation of an employee of the department in any program
administered by the department to ensure that the programs of the
department are administered in a fair and equitable manner and
that no employee of the department gains an advantage over the
public. - }
{ - (6) Notwithstanding the provisions of ORS 496.112 (3), in
times of emergency or with respect to regulating wildlife taking,
the director may exercise the full powers of the commission until
such times as the emergency ends or the commission meets in
formal session. - }
SECTION 74. ORS 496.124 is amended to read:
496.124. In addition to { - such divisions as may be
established by the State Fish and Wildlife Director pursuant to
ORS 496.118, there are established within the State Department of
Fish and Wildlife a Fish Division and a Wildlife Division - }
{ + any administrative division established by the Director of
the Oregon Department of Natural Resources pursuant to section 2
of this 2011 Act, a Fish Division and a Wildlife Division are
established in Oregon Department of Natural Resources + }. The
Wildlife Division shall be responsible for the management of all
wildlife, except fish and other marine life { - , over which the
State Fish and Wildlife Commission has regulatory
jurisdiction - } .
SECTION 75. ORS 496.128 is amended to read:
496.128. (1) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } shall report
biennially to the Governor and to the Legislative Assembly on the
{ - activities of the commission - } { + commission's
administration of the wildlife laws and commercial fishing laws
of this state + } during the preceding biennium. The commission
shall make such additional reports as the Governor or the
Legislative Assembly may direct.
(2) The reports required by subsection (1) of this section
shall be in such form and contain such information as the
commission considers appropriate, and shall contain such other
information as the Governor and the Legislative Assembly may
require. Such reports shall include all new or amended rules,
policies or procedures adopted by the commission { + that
pertain to wildlife or commercial fishing + } and shall include a
summary of significant consultation activity under ORS 496.164.
SECTION 76. ORS 496.138 is amended to read:
496.138. (1) Consistent with the policy of ORS 496.012, the
{ - State Fish and Wildlife Commission - } { + Oregon Natural
Resources Commission + } shall implement the policies and
programs of this state for the management of wildlife. These
policies and programs shall consider the uses of public and
private lands and utilize voluntary partnerships with private and
public landowners to protect and enhance wildlife habitat and
effectively manage wildlife. In addition, the commission shall
perform any other duty vested in it by law.
(2) In accordance with the applicable provisions of ORS chapter
183, the commission shall adopt such rules and standards as it
considers necessary and proper to implement the policy and
objectives of ORS 496.012 and perform the functions vested by law
in the commission.
(3) Except as provided in ORS 183.335 (5), the commission shall
cause a public hearing to be held on any proposed rule or
standard prior to its adoption. The hearing may be before the
commission, any designated member thereof or any person
designated by and acting for the commission.
(4) Before submitting budget requests or information to the
Governor pursuant to ORS 291.201 to 291.222, the commission shall
hold a public hearing on proposals for planned expenditures and
enhancement packages that the commission intends to recommend to
the Governor for inclusion in the Governor's budget.
SECTION 77. ORS 496.141 is amended to read:
496.141. On or before February 1 of each odd-numbered year, the
{ - State Department of Fish and Wildlife - } { + Oregon
Department of Natural Resources + } shall provide to the Joint
Committee on Ways and Means a complete annual report regarding
activities initiated by the department in regard to the fish
screening program. The report shall include a complete budget
analysis of all costs, including in-kind costs associated with
the program, the number of screening or by-pass devices installed
and the size of the diversions on which such devices were
installed. The budget analysis shall identify all costs
associated with the construction and installation of screening or
by-pass devices, administrative costs and research and
development costs associated with the program.
SECTION 78. ORS 496.146 is amended to read:
496.146. In addition to any other duties or powers provided by
law, the { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + }:
(1) May accept, from whatever source, appropriations, gifts or
grants of money or other property for the purposes of wildlife
management, and use such money or property for wildlife
management purposes.
(2) May sell or exchange property owned by { - the - }
{ + this + } state and used for wildlife management purposes
when the commission determines that such sale or exchange would
be advantageous to the state wildlife policy and management
programs.
(3) May acquire, introduce, propagate and stock wildlife
species in such manner as the commission determines will carry
out the state wildlife policy and management programs.
(4) May by rule authorize the issuance of such licenses, tags
and permits for angling, taking, hunting and trapping and may
prescribe such tagging and sealing procedures as the commission
determines necessary to carry out the provisions of the wildlife
laws or to obtain information for use in wildlife management.
Permits issued pursuant to this subsection may include special
hunting permits for a person and immediate family members of the
person to hunt on land owned by that person in areas where
permits for deer or elk are limited by quota. As used in this
subsection, ' immediate family members' means husband, wife,
father, mother, brothers, sisters, sons, daughters, stepchildren
and grandchildren. A landowner who is qualified to receive
landowner preference tags from the commission may request two
additional tags for providing public access and two additional
tags for wildlife habitat programs. This request shall be made to
the Access and Habitat Board with supporting evidence that the
access is significant and the habitat programs benefit wildlife.
The board may recommend that the commission grant the request.
When a landowner is qualified under landowner preference rules
adopted by the commission and receives a controlled hunt tag for
that unit or a landowner preference tag for the landowner's
property and does not use the tag during the regular season, the
landowner may use that tag to take an antlerless animal, when
approved by the { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + }, to alleviate
damage that is presently occurring to the landowner's property.
(5) May by rule prescribe procedures requiring the holder of
any license, tag or permit issued pursuant to the wildlife laws
to keep records and make reports concerning the time, manner and
place of taking wildlife, the quantities taken and such other
information as the commission determines necessary for proper
enforcement of the wildlife laws or to obtain information for use
in wildlife management.
(6) May establish special hunting and angling areas or seasons
in which only persons less than 18 years of age or over 65 years
of age are permitted to hunt or angle.
(7) May acquire by purchase, lease, agreement or gift real
property and all appropriate interests therein for wildlife
management and wildlife-oriented recreation purposes.
(8) May acquire by purchase, lease, agreement, gift, exercise
of eminent domain or otherwise real property and all interests
therein and establish, operate and maintain thereon public
hunting areas.
(9) May establish and develop wildlife refuge and management
areas and prescribe rules governing the use of such areas and the
use of wildlife refuge and management areas established and
developed pursuant to any other provision of law.
(10) May by rule prescribe fees for licenses, tags, permits and
applications issued or required pursuant to the wildlife laws,
and user charges for angling, hunting or other recreational uses
of lands owned or managed by the commission, unless such fees or
user charges are otherwise prescribed by law. Except for licenses
issued pursuant to subsection (14) of this section, no fee or
user charge prescribed by the commission pursuant to this
subsection shall exceed $100.
(11) May enter into contracts with any person or governmental
agency for the development and encouragement of wildlife research
and management programs and projects.
(12) May perform such acts as may be necessary for the
establishment and implementation of cooperative wildlife
management programs with agencies of the federal government.
(13) May offer and pay rewards for the arrest and conviction of
any person who has violated any of the wildlife laws. No such
reward shall exceed $100 for any one arrest and conviction.
(14) May by rule prescribe fees for falconry licenses issued
pursuant to the wildlife laws, unless such fees are otherwise
prescribed by law. Fees prescribed by the commission pursuant to
this subsection shall be based on actual or projected costs of
administering falconry regulations and shall not exceed $250.
(15) May establish special fishing and hunting seasons and bag
limits applicable only to persons with disabilities.
(16) May adopt optimum populations for deer and elk consistent
with ORS 496.012. These population levels shall be reviewed at
least once every five years.
(17) Shall establish a preference system so that individuals
who are unsuccessful in controlled hunt permit drawings for deer
and elk hunting have reasonable assurance of success in those
drawings in subsequent years. In establishing the preference
system, the commission shall consider giving additional
preference points to persons who have been issued a resident
pioneer hunting license pursuant to ORS 497.102.
(18) May sell advertising in { - State Department of Fish and
Wildlife - } { + Oregon Department of Natural Resources + }
publications, including annual hunting and angling regulation
publications.
(19) May, notwithstanding the fees required by ORS 497.112,
provide free hunting tags to an organization that sponsors
hunting trips for terminally ill children.
(20) Shall, after consultation with the State Department of
Agriculture, adopt rules prohibiting the use of the World Wide
Web, other Internet protocols or broadcast or closed circuit
media to remotely control a weapon for the purpose of hunting any
game bird, wildlife, game mammal or other mammal. The rules may
exempt the { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + } or agents of the
department from the prohibition.
(21) May adopt rules establishing a schedule of civil
penalties, not to exceed $6,500 per violation, for violations of
provisions of the wildlife laws or rules adopted by the
commission under the wildlife laws. Civil penalties established
under this subsection must be imposed in the manner provided by
ORS 183.745 and must be deposited in the { - State Wildlife
Fund established under ORS 496.300. - } { + Oregon Natural
Resources Fund. Moneys deposited in the fund under this
subsection are continuously appropriated to the Oregon Department
of Natural Resources for the purpose of carrying out the duties,
functions and powers of the department as prescribed by sections
1 (1) and (2) and 5 (1)(a) and (b) of this 2011 Act. + }
SECTION 79. ORS 496.151 is amended to read:
496.151. Notwithstanding any other provision of the wildlife
laws, the { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } by rule shall
establish a system for allocating hunting permits that are
limited by maximum number for the taking of deer and elk by
nonresident hunters so that a number equal to one-half of the
number of those permits issued to nonresident hunters in the
previous year are made available to the holders of registrations
issued pursuant to ORS chapter 704, and who are certified
pursuant to ORS 704.060, for the use of the clients of those
registration holders. Such a system shall include but not be
limited to:
(1) Provisions to prevent misuse of the permits by the
registrant or by employees of the registrant.
(2) Provisions for revocation and refusal to issue all or any
portion of the permits based upon a commission finding of an
emergency situation or biological needs.
SECTION 80. ORS 496.154 is amended to read:
496.154. (1) The { - State Fish and Wildlife Commission
shall - } { + Oregon Natural Resources Commission may + } not
commence any proceeding to exercise the power of eminent domain
to acquire any real property, or interest therein, that was
devoted to farm use on January 1, 1974, unless the commission
first obtains approval therefor from the Joint Committee on Ways
and Means, or from the Emergency Board if the Legislative
Assembly is not then in session. Upon a change in the use of such
land from farm use, the commission may acquire such property, and
interests therein, by exercise of the power of eminent domain
without first obtaining legislative approval therefor. As used in
this section, 'farm use' has the meaning for that term provided
in ORS 215.203.
(2) The commission { - shall - } { + may + } not commence
any proceeding as provided in subsection (1) of this section
unless the commission has obtained approval of its intended use
of such property from the local governmental agencies having land
use planning authority over such lands.
SECTION 81. ORS 496.156 is amended to read:
496.156. (1) { + (a) + } In carrying out duties, functions and
powers regarding the propagation of anadromous fish prescribed in
the wildlife laws and the commercial fishing laws, the
{ - State Fish and Wildlife Commission - } { + Oregon Natural
Resources Commission + } shall give high priority to expenditures
for propagation assistance by means of transportation of upstream
and downstream migrants in those areas where dams and other such
obstacles present a passage problem to juvenile or adult salmon.
{ - (2) - } { + (b) + } For the purposes of this
{ - section - } { + subsection + }, ' transportation' means
any method of helping anadromous fish to pass dams and other
obstacles so as to reduce the mortality associated with passage.
{ - (3) - } { + (2) + } Nothing in subsection (1) of this
section prevents the cooperation of the commission with the
federal government in programs financed pursuant to ORS 506.405.
SECTION 82. ORS 496.162 is amended to read:
496.162. (1) After investigation of the supply and condition of
wildlife, the { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + }, at appropriate
times each year, shall by rule:
(a) Prescribe the times, places and manner in which wildlife
may be taken by angling, hunting, trapping or other method and
the amounts of each of those wildlife species that may be taken
and possessed.
(b) Prescribe such other restrictions or procedures regarding
the angling, taking, hunting, trapping or possessing of wildlife
as the commission determines will carry out the provisions of
wildlife laws.
(2) In carrying out the provisions of subsection (1) of this
section, the power of the commission includes, but is not limited
to:
(a) Prescribing the amount of each wildlife species that may be
taken and possessed in terms of sex, size and other physical
characteristics.
(b) Prescribing such regular and special time periods and areas
closed to the angling, taking, hunting and trapping of any
wildlife species when the commission determines such action is
necessary to protect the supply of such wildlife.
(c) Prescribing regular and special time periods and areas open
to the angling, taking, hunting and trapping of any wildlife
species, and establishing procedures for regulating the number of
persons eligible to participate in such angling, taking, hunting
or trapping, when the commission determines such action is
necessary to maintain properly the supply of wildlife, alleviate
damage to other resources, or to provide a safe and orderly
recreational opportunity.
(3) Notwithstanding subsections (1) and (2) of this section,
except as provided in ORS 498.146 or during those times and at
those places prescribed by the commission for the hunting of elk,
the commission shall not prescribe limitations on the times,
places or amounts for the taking of predatory animals. As used in
this subsection, 'predatory animal' has the meaning { - for - }
{ + given + } that term provided in ORS 610.002.
(4) In carrying out the provisions of this section, before
prescribing the numbers of deer and elk to be taken, the
commission shall consider:
(a) The supply and condition of deer and elk herds;
(b) The availability of forage for deer, elk and domestic
livestock on public and private range and forest lands;
(c) The recreational opportunities derived from deer and elk
populations; and
(d) The effects of deer and elk herds on public and private
range and forest lands.
SECTION 83. ORS 496.164 is amended to read:
496.164. The { - State Fish and Wildlife Commission and the
State Department of Fish and Wildlife - } { + Oregon Department
of Natural Resources and the Oregon Natural Resources
Commission + } may advise, consult and cooperate with other
agencies of this state and political subdivisions, other states
or the federal government and private landowners with respect to
fish and wildlife management. The { - commission and the - }
department { + and the commission + } shall provide such
information, recommendations or advice in writing if requested by
another state or federal agency to do so. Technical advice and
information shall be based on the best available scientific
information. Policy or implementation recommendations provided in
administrative rulemaking proceedings shall be based on
consideration of all the goals of wildlife management in ORS
496.012, in addition to applicable scientific information. State
agencies, boards or commissions receiving policy or
implementation recommendations shall consider such
recommendations in the context of their respective statutory
responsibilities, and shall take into account the extent to which
such recommendations are substantiated with the best available
scientific information and based on consideration of all of the
goals of wildlife management in ORS 496.012.
SECTION 84. ORS 496.166 is amended to read:
496.166. The Legislative Assembly finds, in the interest of all
Oregonians, a necessity to improve Oregon's resource access and
wildlife habitat through the further involvement of its
{ - citizens - } { + residents + }, through voluntary
partnership between the
{ - State Department of Fish and Wildlife - } { + Oregon
Department of Natural Resources + } and landowners to manage
wildlife on private lands and through support by additional
financial revenues.
SECTION 85. ORS 496.172 is amended to read:
496.172. In carrying out the provisions of the wildlife laws
with regard to the management of wildlife that is a threatened
species or an endangered species, the { - State Fish and
Wildlife Commission - } { + Oregon Natural Resources
Commission + }:
(1) Shall conduct investigations of wildlife species native to
this state and shall determine whether any such species is a
threatened species or an endangered species.
(2) By rule, shall establish and publish, and from time to time
may revise, a list of wildlife species that are threatened
species or endangered species. Listed threatened species or
endangered species shall be protected as provided in ORS 496.182.
(3) Shall work cooperatively with state agencies that have land
management authority or regulatory authority to determine their
roles within their statutory obligations in the conservation of
endangered species, as described in ORS 496.182 (8).
(4) By rule, shall establish a system of permits for scientific
taking of threatened species and endangered species and shall
establish a system of state permits for incidental taking of
state-designated threatened species and endangered species not
listed by the federal government under such terms and conditions
as the commission determines will minimize the impact on the
species taken. An incidental taking permit or statement issued by
a federal agency for a species listed under the federal
Endangered Species Act of 1973 (P.L. 93-205, 16 U.S.C. 1531), as
amended, shall be recognized by the state as a waiver of any
state protection measures or requirements otherwise applicable to
the actions allowed under the federal permit.
(5) Shall cooperate with the State Department of Agriculture in
carrying out the provisions of ORS 564.105.
(6) Shall adopt administrative rules to carry out the
provisions of ORS 496.171 to 496.182 and 498.026.
SECTION 85a. ORS 496.176 is amended to read:
496.176. (1) The lists of threatened species or endangered
species established pursuant to ORS 496.172 (2) shall include:
(a) Those species of wildlife listed as of May 15, 1987, as a
threatened species or an endangered species pursuant to the
federal Endangered Species Act of 1973 (P.L. 93-205, 16 U.S.C.
1531), as amended; and
(b) Those species determined as of May 15, 1987, by the State
Fish and Wildlife Commission to be threatened species or
endangered species.
(2) The { + Oregon Natural Resources + } Commission, by rule,
may add or remove any wildlife species from either list, or
change the status of any species on the lists, upon a
determination that the species is or is not a threatened species
or an endangered species.
(3) A determination that a species is a threatened species or
an endangered species shall be based on documented and verifiable
scientific information about the species' biological status. To
list a species as a threatened species or an endangered species
under ORS 496.004 and 496.171 to 496.182, the { + Oregon Natural
Resources + } Commission shall determine that the natural
reproductive potential of the species is in danger of failure due
to limited population numbers, disease, predation or other
natural or human actions affecting its continued existence and,
to the extent possible, assess the relative impact of human
actions. In addition, the commission shall determine that one or
more of the following factors exists:
(a) That most populations are undergoing imminent or active
deterioration of their range or primary habitat;
(b) That overutilization for commercial, recreational,
scientific or educational purposes is occurring or is likely to
occur; or
(c) That existing state or federal programs or regulations are
inadequate to protect the species or its habitat.
(4) Determinations required by subsection (3) of this section
shall be made by the { + Oregon Natural Resources + } Commission
on the basis of verifiable scientific and other data after
consultation with federal agencies, other interested state
agencies, the Natural Heritage Advisory Council, other states
having a common interest in the species and interested persons
and organizations.
(5) Any person may petition the { + Oregon Natural
Resources + } Commission to, by rule, add, remove or change the
status of a species on the list:
(a) A petition shall clearly indicate the action sought and
shall include documented scientific information about the
species' biological status to justify the requested action.
(b) Within 90 days of receipt of a petition, the commission
shall respond in writing to the petitioner indicating whether the
petition presents substantial scientific information to warrant
the action requested.
(c) If the petition is found to present such information, the
commission shall commence rulemaking.
(d) A final determination by the commission concerning the
action requested in a petition shall be provided within one year
from the date of receipt of the petition, with the option for an
additional 12-month extension of time to complete the listing if
the commission determines that limited information or other
appropriate considerations require the extension.
(e) If the petition is denied, the petitioner may seek judicial
review as provided in ORS 183.484.
(6) The { + Oregon Natural Resources + } Commission may
determine not to list a species as a threatened species or an
endangered species in any of the following cases:
(a) If the species has been listed pursuant to the federal
Endangered Species Act of 1973 (P.L. 93-205, 16 U.S.C. 1531), as
amended.
(b) If the species is currently on the list as a sensitive
species, or is a candidate species or has been petitioned for
listing pursuant to the federal Endangered Species Act of 1973
(P.L. 93-205, 16 U.S.C. 1531), as amended.
(c) If the species has been determined, pursuant to the federal
Endangered Species Act of 1973 (P.L. 93-205, 16 U.S.C. 1531), as
amended, to not qualify as a threatened species or an endangered
species.
(7) Notwithstanding subsections (1) to (5) of this section, the
{ + Oregon Natural Resources + } Commission shall take emergency
action to add a species to the list of threatened species or
endangered species if it determines there is a significant threat
to the continued existence of the species within the state:
(a) The commission shall publish notice of such addition in the
Secretary of State's bulletin and shall mail notice to affected
or interested persons whose names are included on the
commission's mailing list for such purposes.
(b) Such emergency addition shall take effect immediately upon
publication in the Secretary of State's bulletin and shall remain
valid for a period no longer than one year, unless during the
period the commission completes rulemaking procedures as provided
in subsection (5) of this section.
(8) The { + Oregon Natural Resources + } Commission shall
periodically review the status of all threatened species and
endangered species listed under ORS 496.171 to 496.192. Each
species shall be reviewed at least once every five years to
determine whether verifiable scientific information exists to
justify its reclassification or removal from the list, according
to the criteria listed under subsections (3) and (4) of this
section. If a determination is made to reclassify a species or
remove it from the list, the commission, within 90 days, shall
commence rulemaking to change the status of the species.
(9) Notwithstanding the provisions of this section, the { +
Oregon Natural Resources + } Commission:
(a) May decide not to list a species that otherwise qualifies
as a threatened or endangered species within this state if the
commission determines that the species is secure outside this
state or the species is not of cultural, scientific or commercial
significance to the people of this state.
(b) May not include Branta canadensis leucopareia, commonly
known as the Aleutian Canada goose, on the lists of threatened
species or endangered species.
SECTION 86. ORS 496.182 is amended to read:
496.182. (1) The burden of protecting and recovering threatened
species or endangered species can be a significant cost to the
{ - citizens - } { + residents + } of this state and it is
therefore the policy of this state to minimize duplication and
overlap between state and federal laws dealing with threatened
species or endangered species. To this end, nothing in this
section is intended to prevent the adoption of cooperative state
or federal programs when such programs provide protection for
listed species without significant impact on the primary uses of
state lands.
(2) At the time the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + } adds
a species to the list of threatened species or endangered species
under ORS 496.172, the commission shall establish by rule
quantifiable and measurable guidelines that it considers
necessary to ensure the survival of individual members of the
species. These guidelines may include take avoidance and
protecting resource sites such as spawning beds, nest sites,
nesting colonies or other sites critical to the survival of
individual members of the species.
(3) For threatened species listed under ORS 496.172 and in the
absence of an approved endangered species management plan
described in subsection (8) of this section for an endangered
species, if a state agency determines that a proposed action on
land it owns or leases, or for which it holds a recorded
easement, has the potential to violate the guidelines established
under subsection (2) of this section, it shall notify the
{ - State Department of Fish and Wildlife - } { + Oregon
Department of Natural Resources + }. Within 90 days of such
notice, the department shall recommend reasonable and prudent
alternatives, if any, to the proposed action { - which - }
{ + that + } are consistent with the guidelines.
(4) If a state agency fails to adopt the recommendations made
under subsection (3) of this section, it shall, after
consultation with the department, demonstrate that:
(a) The potential public benefits of the proposed action
outweigh the potential harm from failure to adopt the
recommendations; and
(b) Reasonable mitigation and enhancement measures shall be
taken, to the extent practicable, to minimize the adverse impact
of the action on the affected species.
(5) When an action under this section is initiated by a person
other than a state agency, the agency shall provide final
approval or denial of the proposed action within 120 days of
receipt of a written request for final determination.
(6) The provisions of this section do not apply to lands
acquired through foreclosures of loans made pursuant to programs
of the Department of Veterans' Affairs.
(7) State land owning or managing agencies shall set priorities
for establishing endangered species management plans required by
subsection (8) of this section after consultation with the
commission on the level of biological threat and, in
consideration of available funds, the immediacy and seriousness
of the threat to any listed species.
(8)(a)(A) Within four months of the listing of an endangered
species, the commission, in consultation and cooperation with the
state land owning or managing agency, shall determine if state
land can play a role in the conservation of endangered species.
The commission and the land owning or managing agency shall
consider species biology and geography of the land base to
determine if the species or its habitat is found on state land.
If the species or its habitat is not found on state land, the
commission shall determine that state land has no role to play in
the conservation of the species.
(B) If the species or its habitat is found on state land, the
land owning or managing agency, in consultation with the
{ - State Department of Fish and Wildlife - } { + Oregon
Department of Natural Resources + }, shall determine the role its
state land shall serve in the conservation of the endangered
species. This role may include, but is not limited to
conservation, contribution toward conservation or take avoidance.
To carry out its consulting role under this subsection, the
department shall provide state agencies with an assessment of the
conservation needs of the endangered species. In making this
determination, the land owning or managing agency shall balance
the statutory requirements, rules and policies applicable to the
agency's programs, the social and economic impacts that
conservation would have on the state, the conservation needs of
the species, the purpose of the land and the roles of other
ownership categories. The agency shall balance these factors
consistent with the commission's rules related to the biological
aspects of species management and the statutory obligations of
the land owning or managing agency, including the statutory
purpose of the land.
(C) After determining the role its state land shall serve in
conservation of the species, the land owning or managing agency,
in consultation with the { - State Department of Fish and
Wildlife - } { + Oregon Department of Natural Resources + } and
consistent with the commission's rules related to endangered
species management plans, shall develop and approve an endangered
species management plan within 18 months from the date the
species is first listed as endangered. Endangered species
management plans shall be based on the statutes, rules and
policies applicable to the agency's programs and shall take into
account any social or economic impacts that the plan may have on
the state. The land owning or managing agency shall submit the
plan to the commission for review and approval as provided in
subparagraph (D) of this paragraph.
(D) The commission shall review the endangered species
management plan approved by the land owning or managing agency
under subparagraph (C) of this paragraph to determine whether the
plan achieves the role defined for the land under subparagraph
(B) of this paragraph. Based on the biology of the endangered
species the commission may modify the endangered species
management plan if necessary to be consistent with the role the
land owning or managing agency has defined for the land under
subparagraph (B) of this paragraph and shall approve the plan as
submitted or modified within 24 months from the date the species
is listed as endangered.
(b) For state agencies other than land owning or managing
agencies, the commission, in consultation and cooperation with
the agency, shall determine whether the agency can serve a role
in the conservation of endangered species. If the commission
determines that the agency has a role to play in conservation of
the endangered species, the agency shall determine what role it
shall serve in conservation of the endangered species. The agency
shall make this determination as provided in the commission's
rules related to the biological aspects of species management and
in a manner consistent with the agency's statutory obligations.
SECTION 87. ORS 496.201 is amended to read:
496.201. (1) The State of Oregon shall, through the { - State
Department of Fish and Wildlife - } { + Oregon Department of
Natural Resources + }, provide surplus salmon:
(a) To the Confederated Coos, Lower Umpqua and Siuslaw Indian
tribes for their historical, traditional and cultural salmon
ceremonies that take place each year.
(b) To the Cow Creek Band of the Umpqua Indians for their
historical, traditional and cultural salmon ceremonies that take
place each year.
(c) To the Coquille Tribe for their historical, traditional and
cultural salmon ceremonies that take place each year.
(d) To the Burns Paiute Tribe for their historical, traditional
and cultural salmon ceremonies that take place each year.
(2) The salmon provided by the state shall meet the expressed
needs of the Confederated Coos, Lower Umpqua and Siuslaw tribes,
up to 1,000 pounds total, the Coquille Tribe, up to 1,000 pounds
total, the Cow Creek Band of the Umpqua Indians, up to 1,000
pounds total, and the Burns Paiute Tribe, up to 500 pounds total.
(3) The salmon provided by the state may be either surplus
whole fish or carcasses.
(4) Salmon may be taken from hatcheries under either the
complete or joint control of the state.
SECTION 88. ORS 496.206 is amended to read:
496.206. (1) The Indian tribes referred to in ORS 496.201 (1)
are required to set forth, in writing, their request for salmon.
This request shall be submitted by the duly elected tribal
governing body no later than 40 days prior to the ceremony and
shall include:
(a) The poundage of salmon required;
(b) The date of the ceremony; and
(c) A contact person that the state may refer questions to.
(2) Prior to any state action, the written request must be
received by:
(a) The { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + };
(b) The Attorney General; and
(c) The United States Department of Interior.
(3) The salmon shall be provided to the Indian tribes referred
to in ORS 496.201 (1) no later than 30 days after receiving a
proper written request therefor.
SECTION 89. ORS 496.211 is amended to read:
496.211. (1) The State of Oregon shall be limited to a once a
year provision of salmon pursuant to ORS 496.201.
(2) If the Indian tribes referred to in ORS 496.201 (1) use
salmon provided by the state for this purpose in any manner other
than that described in ORS 496.201, they shall pay to the
{ - State Department of Fish and Wildlife - } { + Oregon
Department of Natural Resources + } the prevailing wholesale rate
per pound of the entire amount of salmon supplied to that tribe
or tribes for that year.
SECTION 90. ORS 496.228 is amended to read:
496.228. (1) There is established within the { - State
Department of Fish and Wildlife - } { + Oregon Department of
Natural Resources + } the Access and Habitat Board, consisting of
seven members appointed by the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + }.
(2) Three members shall be appointed to represent the broad
spectrum of hunters. In making appointments pursuant to this
subsection, the commission shall consider recommendations from
the
{ - State Fish and Wildlife Director - } { + Director of the
Oregon Department of Natural Resources + }.
(3) Three members of the board shall be appointed to represent
the broad spectrum of agriculture and timber landowners. In
making appointments pursuant to this subsection, the commission
shall consider recommendations { - from the State Fish and
Wildlife Director - } from a list of at least five persons
submitted by the
{ - State Forester - } { + Director of the Oregon Department
of Natural Resources + } and the Director of Agriculture.
(4) One member of the board shall be appointed to represent the
public and shall serve as the board chairperson.
(5) A member of the board shall receive no compensation for
services as a member. However, subject to any applicable law
regulating travel and other expenses of state officers and
employees, a member shall be reimbursed for actual and necessary
travel and other expenses incurred in the performance of official
duties from such moneys as are made available by section 19,
chapter 659, Oregon Laws 1993.
(6) The term of office of a member of the board is four years.
A member of the board is eligible for reappointment.
(7) An official action of the board may be taken only upon the
affirmative vote of at least four members.
(8) The board shall select such officers for such terms and
with such duties and powers as the board considers necessary for
the performance of those offices.
(9) The board shall meet at such times and at such places as
may be determined by the chair or by the majority of the members
of the board.
SECTION 91. ORS 496.232 is amended to read:
496.232. (1) The Access and Habitat Board shall { - meet,
adopt and - } recommend { + access and habitat programs + } to
the { - State Fish and Wildlife Commission - } { + Oregon
Natural Resources Commission + }, within 120 days after November
4, 1993, and at not more than 120-day intervals thereafter { - ,
access and habitat programs - } .
(2) The commission shall review such programs and may approve
or disapprove the program recommendation by the board. Funds may
be expended from the { + Access and Habitat Board + } Subaccount
{ - referred to - } { + described + } in ORS 496.242 for
projects that have been approved by the commission.
(3) The { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + } and the board
jointly shall submit to each biennial session of the Legislative
Assembly a report on expenditure of funds for the access and
habitat programs and on the status of various projects.
(4) In recommending access and habitat programs, the board
shall:
(a) Recommend a mix of projects that provides a balance between
access and habitat benefits.
(b) Recommend projects that are to be implemented by volunteers
under volunteer coordinators and nonprofit organizations engaged
in approved access and habitat activities.
(c) Recommend programs that recognize and encourage the
contributions of landowners to wildlife and programs that
minimize the economic loss to those landowners.
(d) Encourage agreements with landowners who request damage
control hunts to ensure public access to those hunts.
(e) Encourage projects that result in obtaining matching funds
from other sources.
(5) All moneys made available for the access and habitat
programs from surcharges received under section 19, chapter 659,
Oregon Laws 1993, and from gifts and grants made to carry out the
access and habitat programs may be expended only if the board so
recommends and the commission so approves. Such amounts may be
expended:
(a) On programs that benefit wildlife by improving habitat.
These programs shall be in coordination with the Wildlife
Division and shall be in addition to programs provided by federal
funds. These programs may:
(A) Be on private lands.
(B) Provide seed and fertilizer to offset forage consumed by
wildlife and for other programs that enhance forage.
(C) Be adjacent to agricultural and forest land to attract
animals from those crops.
(b) On programs that promote access to public and private
lands:
(A) Through contracting for various levels of management of
these lands. These management programs may include:
(i) Creating hunting lease programs that provide access at
present levels or stimulate new access.
(ii) Controlling access.
(iii) Opening vehicle access.
(iv) Promoting land exchanges.
(v) Promoting proper hunting behavior.
(B) Through the acquisition of easements.
(c) On programs that would provide for wildlife feeding to
alleviate damage, to intercept wildlife before wildlife becomes
involved in a damage situation and for practical food replacement
in severe winters.
(d) On programs to coordinate volunteers to improve habitat,
repair damage to fences or roads by wildlife or recreationists,
monitor orderly hunter utilization of public and private lands
and assist the Oregon State Police in law enforcement activities.
(e) On programs that provide for auction or raffle of tags to
provide incentives for habitat or access.
(6) The board may accept, from whatever source, gifts or grants
for the purposes of access and habitat. All moneys so accepted
shall be deposited in the { + Access and Habitat Board + }
Subaccount { - referred to - } { + described + } in ORS
496.242. Unless otherwise required by the terms of a gift or
grant, gifts or grants shall be expended as provided in
subsection (5) of this section.
SECTION 92. ORS 496.236 is amended to read:
496.236. (1) Individuals who reside in the various regions
established for administration of the wildlife resources may form
advisory councils, with membership in the same proportion as
described for the board, to discuss and consider access and
habitat programs and projects and to make recommendations thereon
to the Access and Habitat Board. When the board considers
proposals affecting a region, the board shall consult with the
advisory council for that region if one exists.
(2) Employees of the { - State Department of Fish and
Wildlife - } { + Oregon Department of Natural Resources + } or
other professional biologists who { + have knowledge of wildlife
habitat and + } are residents of the various regions may act in
an advisory capacity to the various councils.
(3) An individual who serves as a member of an advisory council
shall receive no compensation or expenses for service as a
member.
SECTION 93. ORS 496.242 is amended to read:
496.242. (1) { - Notwithstanding ORS 496.300, all moneys
received by the State Fish and Wildlife Commission - } { + All
moneys received by the Oregon Natural Resources Commission + }
pursuant to section 19, chapter 659, Oregon Laws 1993, shall be
deposited in the Access and Habitat Board Subaccount established
in the { - Fish and Wildlife Account. Moneys in the subaccount
may be expended only for - } { + Oregon Natural Resources Fund.
Moneys deposited in the subaccount under this section are
continuously appropriated to the Oregon Department of Natural
Resources for payment of expenses related to + } the access and
habitat programs recommended by the Access and Habitat Board
{ - for the benefit of the wildlife resources of this state - }
{ + pursuant to ORS 496.232 + }.
(2) The { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + } shall credit the
subaccount with a sum equal to 15 percent of the other fund
budget for the green forage and Deer Enhancement and Restoration
programs in each biennium.
(3) The department { - shall - } { + may + } not assess its
personnel costs in the administration of ORS 496.166 and 496.228
to 496.242 against the subaccount referred to in this section
without the prior approval of the Access and Habitat Board.
{ + NOTE: + } Sections 94 and 95 were deleted. Subsequent
sections were not renumbered.
SECTION 96. ORS 496.270 is amended to read:
496.270. (1) The Legislative Assembly declares that it is the
policy of the State of Oregon to encourage operators, timber
owners and landowners to voluntarily improve fish and wildlife
habitat. In order to carry out this policy, the Legislative
Assembly encourages cooperation among operators, timber owners
and landowners and other volunteers.
(2) Consistent with the limitations of ORS 105.672 to 105.696,
a landowner is not liable in contract or tort for any personal
injury, death or property damage that arises out of the use of
the land by:
(a) A volunteer conducting a fish and wildlife habitat
improvement project; or
(b) A participant of a state-funded or federally funded
watershed or stream restoration or enhancement program.
(3) An operator, timber owner or landowner shall not be held
liable for any damages resulting from:
(a) A fish and wildlife habitat improvement project done in
cooperation and consultation with the { - State Department of
Fish and Wildlife or the Oregon Watershed Enhancement Board, - }
{ + Oregon Department of Natural Resources + } or conducted as
part of a forest management practice in accordance with ORS
527.610 to 527.770, 527.990 and 527.992; or
(b) Leaving large woody debris within the waters of this state
to protect, retain and recruit large woody debris for the
purposes of fish habitat and water quality improvement.
(4) The limitations to liability provided by subsections (2)
and (3) of this section do not apply if the damages, injury or
death was caused by willful, wanton or intentional conduct on the
part of the operator, timber owner or landowner or by the gross
negligence of the operator, timber owner or landowner. As used in
this subsection 'gross negligence' means negligence which is
materially greater than the mere absence of reasonable care under
the circumstances, and which is characterized by indifference to
or reckless disregard of the rights of others.
(5) The limitation on liability provided by subsection (3) of
this section does not apply to claims for death or personal
injuries.
SECTION 97. ORS 496.275 is amended to read:
496.275. (1) The Legislative Assembly hereby declares the
necessity to review all options and means for the protection and
restoration of Oregon's salmon resource that promote local
economic development and enjoyment by all { - the citizens - }
{ + residents + } of Oregon. Options and means shall include
operation of salmon production facilities, in cooperation with
the { - State Department of Fish and Wildlife - } { + Oregon
Department of Natural Resources + }, by both public and private
nonprofit agencies as well as by public local partnerships, to
meet local production and harvest needs as well as to help
restore and maintain natural salmon spawning populations. Such
cooperative production projects shall be operated using
scientifically sound hatchery practices and shall be consistent
with objectives to protect and restore natural fish production.
{ - (2) The State Department of Fish and Wildlife shall: - }
{ + (2) The department shall: + }
(a) Review and revise existing state administrative rules so
that the different forms of hatchery production are recognized as
a necessary and critical element in the state's salmon production
system in order to provide harvest opportunities for Oregon's
{ - citizens - } { + residents + }. In so doing, the
department shall identify low natural production areas and, using
genetically compatible stocks approved by the department,
encourage volunteer efforts such as the salmon and trout
enhancement program to maintain and to enhance production.
(b) Identify existing private and public salmon production
facilities that are currently either underutilized or subject to
decommissioning and that may be appropriate for other forms of
operation.
(c) Inventory other appropriate local sites, identify possible
types of production facilities, recommend stock selection and
release size, and assist in securing the acquisition of brood
stock approved by the department that maximizes local production.
(d) Investigate and implement ways to improve hatchery smolt
survival and reduce predation by such means as night releases,
net pen acclimation, alternate release sites, volitional and
other release strategies, transport and other means that may be
effective and consistent with the conservation of native salmon
and genetic resources.
(e) Make recommendations on methods by which operations of
facilities referred to in this subsection and subsection (3) of
this section can generate revenue for sustainable production,
including but not limited to state bonding, license surcharges,
ad valorem taxes, local economic development funds, service
districts, sale of excess eggs and salmon, and gifts, grants and
donations.
(f) Identify needed monitoring and evaluation activities to
ensure protection of natural spawning fish populations and to
assess the contribution of such cooperative projects to public
fisheries.
(g) Assist in developing, for department approval, plans of
operation for such cooperative hatchery projects consistent with
applicable rules and standards of sound, scientific fish
management practice.
(3) The department shall encourage and assist in planning
hatchery facilities that seek to implement innovative plans or
programs designed to meet production for harvest needs consistent
with conservation objectives.
(4) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } shall approve, prior
to implementation, operational plans for any fish propagation
facilities operated by contractor agreement with other state or
federal agencies, local governments, special districts and
nonprofit organizations.
SECTION 98. ORS 496.283 is amended to read:
496.283. (1) Notwithstanding ORS 506.306, all moneys received
by the { - State Fish and Wildlife Commission - } { + Oregon
Natural Resources Commission + } pursuant to sections 4, 6 and 8,
chapter 512, Oregon Laws 1989, shall be deposited in a separate
subaccount in the { - State Wildlife Fund - } { + Oregon
Natural Resources Fund + }. Except as provided in subsection (2)
of this section, moneys in the subaccount may be expended only
for { - the department's - } fish restoration and enhancement
programs { + of the Oregon Department of Natural Resources that
are operated + } for the benefit of the fish resources of this
state.
(2) Fees collected from salmon ranching permits authorized
under ORS 508.700 to 508.745 { - will - } { + may + } not be
commingled with public fishery funds collected and deposited in
the subaccount
{ - referred to - } { + described + } in this section.
Notwithstanding any other provision of law, these funds will be
used to monitor the effect and impact of private salmon ranching
on the fishery resources of Oregon.
(3) The department { - shall - } { + may + } not divert
present budgeted funds to other projects as user surcharge funds
become available and { - shall - } { + may + } not embark on
new programs not vital to the restoration of Oregon fisheries as
required by Oregon Revised Statutes and administrative rules. The
department { - shall - } { + may + } not assess its personnel
costs in the administration of chapter 512, Oregon Laws 1989,
against the subaccount { - referred to - } { + described + }
in this section without the prior approval of the Restoration and
Enhancement Board.
SECTION 99. ORS 496.286 is amended to read:
496.286. (1) There is established within the { - State
Department of Fish and Wildlife - } { + Oregon Department of
Natural Resources + } the Restoration and Enhancement Board,
consisting of seven members appointed by the { - State Fish and
Wildlife Commission - } { + Oregon Natural Resources
Commission + }.
(2) Three members shall be appointed to represent the ocean and
inland recreational fisheries. In making appointments pursuant to
this subsection, the commission shall consider recommendations
from the { - State Fish and Wildlife Director - }
{ + Director of the Oregon Department of Natural Resources + }.
(3) Three members of the board shall be appointed to represent
the commercial troll and gillnet fisheries and the fish
processing industry. In making appointments pursuant to this
subsection, the commission shall consider recommendations from
the
{ - State Fish and Wildlife - } director.
(4) One member of the board shall be appointed to represent the
public.
(5) A member of the board shall receive no compensation for
services as a member. However, subject to any applicable law
regulating travel and other expenses of state officers and
employees, a member shall be reimbursed for actual and necessary
travel and other expenses incurred in the performance of official
duties from such moneys made available by sections 4, 6 and 8,
chapter 512, Oregon Laws 1989.
(6) The term of office of a member of the board is four years.
A member of the board is eligible for reappointment.
(7) An official action of the board may be taken only upon the
affirmative vote of four members.
(8) The board shall select such officers for such terms and
with such duties and powers as the board considers necessary for
the performance of those offices.
(9) The board shall meet at such times and at such places as
may be determined by the chair or by the majority of the members
of the board.
SECTION 100. ORS 496.289 is amended to read:
496.289. (1) The Restoration and Enhancement Board shall
{ - meet, adopt and - } recommend { + fish restoration and
enhancement programs + } to the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + },
within 120 days after July 1, 1989, and at not more than 120-day
intervals thereafter { - , fish restoration and enhancement
programs - } .
(2) The commission shall review such programs and may approve
or disapprove any or all program recommendations by the board.
Funds may be expended from the subaccount { - referred to - }
{ + described + } in ORS 496.283 for projects that have been
approved by the commission.
(3) The { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + } and the board
jointly shall submit to each biennial session of the Legislative
Assembly a report on expenditure of funds for the fish
restoration and enhancement program and on the status of various
projects.
(4) In recommending fish restoration and enhancement programs,
the board shall:
(a) Recommend a mix of projects that provide a balance between
restoration and enhancement benefits.
(b) Recommend projects that are to be implemented by the salmon
and trout enhancement program and nonprofit organizations engaged
in approved restoration and enhancement activities.
(c) Encourage projects that result in obtaining matching funds
from other sources.
(5) All moneys made available for the fish restoration and
enhancement program from surcharges received under sections 4, 6
and 8, chapter 512, Oregon Laws 1989, and from gifts and grants
made to carry out the fish restoration and enhancement program
may be expended only if recommended by the board and approved by
the commission. Such amounts may be expended:
(a) On programs benefiting the commercial fishing industry in
the same proportion as revenues received from surcharges under
sections 6 and 8, chapter 512, Oregon Laws 1989, bear to the
total amount of surcharge revenues.
(b) On programs benefiting recreational angling in the same
proportion as revenues received from the surcharge under section
4, chapter 512, Oregon Laws 1989, bear to the total amount of
surcharge revenues.
(6) The board may accept, from whatever source, gifts or grants
for the purposes of fish restoration and enhancement. All moneys
so accepted shall be deposited in the subaccount { - referred
to - } { + described + } in ORS 496.283. Unless otherwise
required by the terms of a gift or grant, gifts or grants shall
be expended as provided in subsection (5) of this section.
(7) As used in this section:
(a) 'Enhancement' includes, but is not limited to, the
following activities:
(A) Angler access.
(B) New fishways and screens.
(C) Habitat.
(D) New hatchery equipment and technology.
(E) Public education.
(F) Aquatic inventories.
(b) 'Restoration' includes, but is not limited to, the
following activities:
(A) Modification of existing fishways and existing screens.
(B) Hatchery restoration.
(C) Liberation equipment.
SECTION 101. ORS 496.291 is amended to read:
496.291. (1) Individuals who reside in the various regions
established for administration of the salmon and trout
enhancement program may form advisory councils to discuss and
consider fish restoration and enhancement programs and projects
and shall make recommendations thereon to the Restoration and
Enhancement Board. When the board considers proposals affecting
a region, the board shall consult with the advisory council for
that region if one exists.
(2) Employees of the { - State Department of Fish and
Wildlife who - } { + Oregon Department of Natural Resources who
have knowledge of fish restoration and enhancement and + } are
residents of the various regions may act in an advisory capacity
to the various councils.
(3) Individuals who serve as members of an advisory council
shall receive no compensation or expenses for service as a
member.
SECTION 102. ORS 496.303 is amended to read:
496.303. { - (1) The Fish and Wildlife Account is established
in the State Treasury, separate and distinct from the General
Fund. All moneys in the account are continuously appropriated to
the State Fish and Wildlife Commission. The Fish and Wildlife
Account shall consist of the moneys in its various subaccounts
and any moneys transferred to the account by the Legislative
Assembly. Unless otherwise specified by law, interest earnings
on moneys in the account shall be paid into the State Treasury
and credited to the State Wildlife Fund. - }
{ - (2) - } { + (1) + }(a) The Fish Screening Subaccount is
established in the { - Fish and Wildlife Account - }
{ + Oregon Natural Resources Fund + }. The subaccount shall
consist of:
(A) All penalties recovered under ORS 536.900 to 536.920.
(B) All moneys received pursuant to ORS 498.306.
(C) All gifts, grants and other moneys from whatever source
that may be used to carry out the provisions of ORS 498.306.
(D) All moneys received from the surcharge on angling licenses
imposed by ORS 497.124.
(b) All moneys in the subaccount shall be used to carry out the
provisions of ORS 315.138, 498.306 and 509.620. However, moneys
received from the surcharge on angling licenses imposed by ORS
497.124 shall be expended only to carry out the provisions of law
relating to the screening of water diversions.
{ - (3) - } { + (2) + } The Fish Endowment Subaccount is
established in the
{ - Fish and Wildlife Account - } { + Oregon Natural
Resources Fund + }. The subaccount shall consist of transfers of
moneys authorized by the Legislative Assembly from the
{ - State Wildlife Fund - } { + fund + } and gifts and grants
of moneys from whatever source for the purpose of paying the
expense of maintaining fish hatcheries operated by the { +
Oregon + } Department { + of Natural Resources + }.
{ - (4) - } { + (3) + } The Migratory Waterfowl Subaccount
is established in the { - Fish and Wildlife Account - }
{ + Oregon Natural Resources Fund + }. All moneys received by
the { + Oregon Natural Resources + } Commission from the sale of
art works and prints related to the migratory waterfowl stamp
shall be deposited in the subaccount. Moneys in the subaccount
may be expended only for activities that promote the propagation,
conservation and recreational uses of migratory waterfowl and for
activities related to the design, production, issuance and
arrangements for sale of the migratory waterfowl stamps and
related art works and prints. Expenditures of moneys in the
subaccount may be made within this state, in other states or in
foreign countries, in such amounts as the commission determines
appropriate. Expenditures in other states and foreign countries
shall be on such terms and conditions as the commission
determines will benefit most directly the migratory waterfowl
resources of this state.
{ - (5) - } { + (4) + } The Halibut Research Subaccount is
established in the { - Fish and Wildlife Account - }
{ + Oregon Natural Resources Fund + }. Based on the annual
number of recreational halibut anglers, a portion of the moneys
derived from the sale of the salmon, steelhead trout, sturgeon
and halibut tag pursuant to ORS 497.121 shall be credited to the
subaccount. Moneys in the subaccount may be expended only for
halibut population studies and other research.
{ - (6) - } { + (5) + } The Upland Bird Subaccount is
established in the
{ - Fish and Wildlife Account - } { + Oregon Natural
Resources Fund + }. All moneys received by the { - State Fish
and Wildlife Commission - } { + Oregon Natural Resources
Commission + } from the sale of upland bird stamps, from the sale
of any art works and prints related to the upland bird stamp and
from private hunting preserve permit fees shall be deposited in
the subaccount. Moneys in the subaccount may be expended only for
promoting the propagation and conservation of upland birds and
the acquisition, development, management, enhancement, sale or
exchange of upland bird habitat, and for activities related to
the design, production, issuance and arrangements for sale of the
upland bird stamps and related art works and prints. Expenditures
of moneys in the subaccount shall be made for the benefit of
programs within this state in such amounts and at such times as
the commission determines appropriate to most directly benefit
the upland bird resources of { - the - } { + this + } state.
{ - (7) - } { + (6) + }(a) The Fish and Wildlife Deferred
Maintenance Subaccount is established in the { - Fish and
Wildlife Account - } { + Oregon Natural Resources Fund + }.
Interest earnings on moneys in the subaccount shall be credited
to the subaccount. The subaccount shall consist of moneys
authorized by the Legislative Assembly from the { - State
Wildlife Fund - } { + fund + } and moneys obtained by gift,
grant, bequest or donation from any other public or private
source.
(b) The principal in the subaccount may be utilized only as
provided in paragraph (c) of this subsection. Interest earnings
on the moneys in the subaccount may be expended only for the
maintenance of fish hatcheries and { - State Department of Fish
and Wildlife facilities other than - } { + facilities of the
Oregon Department of Natural Resources that are related to the
administration of the wildlife and commercial fishing laws of
this state, except for + } administrative facilities located in
Salem.
(c) The department may borrow funds from the principal of the
subaccount to maintain adequate cash flow requirements. However,
moneys borrowed from the principal must be repaid to the
subaccount:
(A) Within six months from the date on which the moneys were
borrowed.
(B) With interest at the standard rate that the State Treasurer
charges to state agencies for other loans. Interest paid under
this subparagraph shall be paid to the subaccount.
(d) For purposes of this subsection, 'principal' means moneys
authorized by the Legislative Assembly for transfer to the
subaccount from the { - State Wildlife Fund - } { + fund + },
including any assignment of earnings on moneys in the fund and
other moneys obtained by gift, grant, bequest or donation
deposited into the subaccount.
{ - (8) - } { + (7) + } The Access and Habitat Board
Subaccount is established in the { - Fish and Wildlife
Account - } { + Oregon Natural Resources Fund + }. The
subaccount shall consist of moneys transferred to the subaccount
pursuant to ORS 496.242. Moneys in the subaccount may be used for
the purposes specified in ORS 496.242.
{ - (9) - } { + (8) + } The Marine Shellfish Subaccount is
established in the { - Fish and Wildlife Account - }
{ + Oregon Natural Resources Fund + }. Interest earnings on
moneys in the subaccount shall be credited to the subaccount. All
moneys received by the { + Oregon Natural Resources + }
Commission from the sale of resident and nonresident shellfish
licenses pursuant to ORS 497.121 shall be deposited in the
subaccount. Moneys in the subaccount shall be used for the
protection and enhancement of shellfish for recreational
purposes, including shellfish sanitation costs and the cost of
enforcement of wildlife laws pertaining to the taking of
shellfish. The { - State Fish and Wildlife Director - } { +
Director of the Oregon Department of Natural Resources + }, or a
designee, the Director of Agriculture, or a designee, and the
Superintendent of State Police, or a designee, shall jointly make
a recommendation to the Governor for inclusion in the Governor's
budget beginning July 1 of each odd-numbered year.
{ - (10) - } { + (9) + }(a) The Mountain Sheep Subaccount
is established in the { - Fish and Wildlife Account - }
{ + Oregon Natural Resources Fund + }, consisting of moneys
collected under ORS 497.112 (2)(a) to (c).
(b) All moneys in the subaccount shall be used for the
propagation and conservation of mountain sheep, for research,
development, management, enhancement and sale or exchange of
mountain sheep habitat and for programs within the state that in
the discretion of the { + Oregon Natural Resources + }
Commission most directly benefit mountain sheep resources of this
state.
{ - (11) - } { + (10) + }(a) The Antelope Subaccount is
established in the
{ - Fish and Wildlife Account - } { + Oregon Natural
Resources Fund + }, consisting of moneys collected under ORS
497.112 (2)(a) to (c).
(b) All moneys in the subaccount shall be used for the
propagation and conservation of antelope, for research,
development, management, enhancement and sale or exchange of
antelope habitat and for programs within the state that in the
discretion of the { + Oregon Natural Resources + } Commission
most directly benefit antelope resources of this state.
{ - (12) - } { + (11) + }(a) The Mountain Goat Subaccount
is established in the { - Fish and Wildlife Account - }
{ + Oregon Natural Resources Fund + }, consisting of moneys
collected under ORS 497.112 (2)(a) to (c).
(b) All moneys in the subaccount shall be used for the
propagation and conservation of mountain goats for research,
development, management, enhancement and sale or exchange of
mountain goat habitat and for programs within the state that in
the discretion of the { + Oregon Natural Resources + }
Commission most directly benefit mountain goat resources of this
state.
{ - (13) - } { + (12) + }(a) The { + Oregon Natural
Resources + } Commission shall keep a record of all moneys
deposited in the { - Fish and Wildlife Account - } { + Oregon
Natural Resources Fund pursuant to this section + }. The record
shall indicate by separate cumulative accounts the sources from
which the moneys are derived and the individual activity or
programs against which each withdrawal is charged.
(b) Using the record created pursuant to paragraph (a) of this
subsection, the commission shall report, in the budget documents
submitted to the Legislative Assembly, on the application of
investment and interest earnings to the maintenance of fish
hatcheries and other { - State Department of Fish and
Wildlife - } facilities { + of the Oregon Department of Natural
Resources + }.
SECTION 103. ORS 496.303, as amended by section 14, chapter
625, Oregon Laws 2007, is amended to read:
496.303. { - (1) The Fish and Wildlife Account is established
in the State Treasury, separate and distinct from the General
Fund. All moneys in the account are continuously appropriated to
the State Fish and Wildlife Commission. The Fish and Wildlife
Account shall consist of the moneys in its various subaccounts
and any moneys transferred to the account by the Legislative
Assembly. Unless otherwise specified by law, interest earnings
on moneys in the account shall be paid into the State Treasury
and credited to the State Wildlife Fund. - }
{ - (2) - } { + (1) + }(a) The Fish Screening Subaccount is
established in the { - Fish and Wildlife Account - }
{ + Oregon Natural Resources Fund + }. The subaccount shall
consist of:
(A) All penalties recovered under ORS 536.900 to 536.920.
(B) All moneys received pursuant to ORS 498.306.
(C) All gifts, grants and other moneys from whatever source
that may be used to carry out the provisions of ORS 498.306.
(D) All moneys received from the surcharge on angling licenses
imposed by ORS 497.124.
(b) All moneys in the subaccount shall be used to carry out the
provisions of ORS 498.306 and 509.620. However, moneys received
from the surcharge on angling licenses imposed by ORS 497.124
shall be expended only to carry out the provisions of law
relating to the screening of water diversions.
{ - (3) - } { + (2) + } The Fish Endowment Subaccount is
established in the
{ - Fish and Wildlife Account - } { + Oregon Natural
Resources Fund + }. The subaccount shall consist of transfers of
moneys authorized by the Legislative Assembly from the
{ - State Wildlife Fund - } { + fund + } and gifts and grants
of moneys from whatever source for the purpose of paying the
expense of maintaining fish hatcheries operated by the { +
Oregon + } Department { + of Natural Resources + }.
{ - (4) - } { + (3) + } The Migratory Waterfowl Subaccount
is established in the { - Fish and Wildlife Account - }
{ + Oregon Natural Resources Fund + }. All moneys received by
the { + Oregon Natural Resources + } Commission from the sale of
art works and prints related to the migratory waterfowl stamp
shall be deposited in the subaccount. Moneys in the subaccount
may be expended only for activities that promote the propagation,
conservation and recreational uses of migratory waterfowl and for
activities related to the design, production, issuance and
arrangements for sale of the migratory waterfowl stamps and
related art works and prints. Expenditures of moneys in the
subaccount may be made within this state, in other states or in
foreign countries, in such amounts as the commission determines
appropriate. Expenditures in other states and foreign countries
shall be on such terms and conditions as the commission
determines will benefit most directly the migratory waterfowl
resources of this state.
{ - (5) - } { + (4) + } The Halibut Research Subaccount is
established in the { - Fish and Wildlife Account - }
{ + Oregon Natural Resources Fund + }. Based on the annual
number of recreational halibut anglers, a portion of the moneys
derived from the sale of the salmon, steelhead trout, sturgeon
and halibut tag pursuant to ORS 497.121 shall be credited to the
subaccount. Moneys in the subaccount may be expended only for
halibut population studies and other research.
{ - (6) - } { + (5) + } The Upland Bird Subaccount is
established in the
{ - Fish and Wildlife Account - } { + Oregon Natural
Resources Fund + }. All moneys received by the { - State Fish
and Wildlife Commission - } { + Oregon Natural Resources
Commission + } from the sale of upland bird stamps, from the sale
of any art works and prints related to the upland bird stamp and
from private hunting preserve permit fees shall be deposited in
the subaccount. Moneys in the subaccount may be expended only for
promoting the propagation and conservation of upland birds and
the acquisition, development, management, enhancement, sale or
exchange of upland bird habitat, and for activities related to
the design, production, issuance and arrangements for sale of the
upland bird stamps and related art works and prints. Expenditures
of moneys in the subaccount shall be made for the benefit of
programs within this state in such amounts and at such times as
the commission determines appropriate to most directly benefit
the upland bird resources of { - the - } { + this + } state.
{ - (7) - } { + (6) + }(a) The Fish and Wildlife Deferred
Maintenance Subaccount is established in the { - Fish and
Wildlife Account - } { + Oregon Natural Resources Fund + }.
Interest earnings on moneys in the subaccount shall be credited
to the subaccount. The subaccount shall consist of moneys
authorized by the Legislative Assembly from the { - State
Wildlife Fund - } { + fund + } and moneys obtained by gift,
grant, bequest or donation from any other public or private
source.
(b) The principal in the subaccount may be utilized only as
provided in paragraph (c) of this subsection. Interest earnings
on the moneys in the subaccount may be expended only for the
maintenance of fish hatcheries and { - State Department of Fish
and Wildlife facilities other than - } { + facilities of the
Oregon Department of Natural Resources that are related to the
administration of the wildlife and commercial fishing laws of
this state, except for + } administrative facilities located in
Salem.
(c) The department may borrow funds from the principal of the
subaccount to maintain adequate cash flow requirements. However,
moneys borrowed from the principal must be repaid to the
subaccount:
(A) Within six months from the date on which the moneys were
borrowed.
(B) With interest at the standard rate that the State Treasurer
charges to state agencies for other loans. Interest paid under
this subparagraph shall be paid to the subaccount.
(d) For purposes of this subsection, 'principal' means moneys
authorized by the Legislative Assembly for transfer to the
subaccount from the { - State Wildlife Fund - } { + fund + },
including any assignment of earnings on moneys in the fund and
other moneys obtained by gift, grant, bequest or donation
deposited into the subaccount.
{ - (8) - } { + (7) + } The Access and Habitat Board
Subaccount is established in the { - Fish and Wildlife
Account - } { + Oregon Natural Resources Fund + }. The
subaccount shall consist of moneys transferred to the subaccount
pursuant to ORS 496.242. Moneys in the subaccount may be used for
the purposes specified in ORS 496.242.
{ - (9) - } { + (8) + } The Marine Shellfish Subaccount is
established in the { - Fish and Wildlife Account - }
{ + Oregon Natural Resources Fund + }. Interest earnings on
moneys in the subaccount shall be credited to the subaccount. All
moneys received by the { + Oregon Natural Resources + }
Commission from the sale of resident and nonresident shellfish
licenses pursuant to ORS 497.121 shall be deposited in the
subaccount. Moneys in the subaccount shall be used for the
protection and enhancement of shellfish for recreational
purposes, including shellfish sanitation costs and the cost of
enforcement of wildlife laws pertaining to the taking of
shellfish. The { - State Fish and Wildlife Director - }
{ + Director of the Oregon Department of Natural Resources + },
or a designee, the Director of Agriculture, or a designee, and
the Superintendent of State Police, or a designee, shall jointly
make a recommendation to the Governor for inclusion in the
Governor's budget beginning July 1 of each odd-numbered year.
{ - (10) - } { + (9) + }(a) The Mountain Sheep Subaccount
is established in the { - Fish and Wildlife Account - }
{ + Oregon Natural Resources Fund + }, consisting of moneys
collected under ORS 497.112 (2)(a) to (c).
(b) All moneys in the subaccount shall be used for the
propagation and conservation of mountain sheep, for research,
development, management, enhancement and sale or exchange of
mountain sheep habitat and for programs within the state that in
the discretion of the { + Oregon Natural Resources + }
Commission most directly benefit mountain sheep resources of this
state.
{ - (11) - } { + (10) + }(a) The Antelope Subaccount is
established in the
{ - Fish and Wildlife Account - } { + Oregon Natural
Resources Fund + }, consisting of moneys collected under ORS
497.112 (2)(a) to (c).
(b) All moneys in the subaccount shall be used for the
propagation and conservation of antelope, for research,
development, management, enhancement and sale or exchange of
antelope habitat and for programs within the state that in the
discretion of the { + Oregon Natural Resources + } Commission
most directly benefit antelope resources of this state.
{ - (12) - } { + (11) + }(a) The Mountain Goat Subaccount
is established in the { - Fish and Wildlife Account - }
{ + Oregon Natural Resources Fund + }, consisting of moneys
collected under ORS 497.112 (2)(a) to (c).
(b) All moneys in the subaccount shall be used for the
propagation and conservation of mountain goats for research,
development, management, enhancement and sale or exchange of
mountain goat habitat and for programs within the state that in
the discretion of the { + Oregon Natural Resources + }
Commission most directly benefit mountain goat resources of this
state.
{ - (13) - } { + (12) + }(a) The { + Oregon Natural
Resources + } Commission shall keep a record of all moneys
deposited in the { - Fish and Wildlife Account - } { + Oregon
Natural Resources Fund pursuant to this section + }. The record
shall indicate by separate cumulative accounts the sources from
which the moneys are derived and the individual activity or
programs against which each withdrawal is charged.
(b) Using the record created pursuant to paragraph (a) of this
subsection, the commission shall report, in the budget documents
submitted to the Legislative Assembly, on the application of
investment and interest earnings to the maintenance of fish
hatcheries and other { - State Department of Fish and
Wildlife - } facilities { + of the Oregon Department of Natural
Resources + }.
SECTION 104. ORS 496.340 is amended to read:
496.340. (1) Except as provided in subsection (3) { + (b) + }
of this section, whenever real property owned by the { - State
Fish and Wildlife Commission - } { + Oregon Natural Resources
Commission + } is exempt from taxation on January 1 of any year
by reason of its ownership by the state, the commission shall pay
to the county in which the property is situated an amount equal
to the ad valorem taxes that would have been charged against the
property if it had been assessed to a taxable owner as of January
1 of such year as provided in subsection (2) of this section. The
county assessor shall determine the value of such property and
shall notify the commission of the determination of the county
assessor. Upon request of the commission, the Department of
Revenue shall review the determination of value and shall
redetermine the value if it concludes the value initially
determined was substantially incorrect.
(2)(a) Except as provided in paragraph (b) or (c) of this
subsection, the value of the property shall be computed at its
assessed value under ORS 308A.107 or for forestland use,
whichever is applicable.
(b) Paragraph (a) of this subsection shall not apply to any
property upon which open field burning takes place. If open field
burning takes place on any property described in this section,
the property shall be valued at its highest and best use rather
than the values authorized in paragraph (a) of this subsection on
the January 1 following the date of the open field burning. If in
the next year, the open field burning is discontinued, paragraph
(a) of this subsection shall apply the next January 1 and each
year thereafter as long as no open field burning occurs.
(c) Paragraph (a) of this subsection shall not apply to any
property acquired by the commission after September 9, 1971, if
such property was valued under farm use or forestland use special
assessment provisions, at the time the property was acquired by
the commission. However, no payments in lieu of taxes made to a
county pursuant to this section prior to January 1, 1974, shall
be refunded to the commission.
{ + (3)(a) This section applies only to real property used in
the regulation of the wildlife laws and commercial fishing laws
of this state. + }
{ - (3) - } { + (b) + } This section does not apply to real
property used for bird farms, fish hatcheries, office quarters,
fishing access sites or impoundments, capital improvements or
real property acquired pursuant to the Act of May 19, 1948 (62
Stat. 240), Public Law 80-537.
(4) The amount prescribed in subsection (1) of this section
shall be determined annually by the assessor of the county in
which the property is situated and certified by the assessor to
the county court or the board of county commissioners. A notice
of the determination, signed by the county judge or the
chairperson of the board of county commissioners, shall be mailed
to the principal office of the { + Oregon Natural Resources + }
Commission not later than October 15. The notice shall contain a
statement of the value of the property and a complete explanation
of the method used in computing the amount claimed pursuant to
subsection (1) of this section. Not later than November 15, the
{ + Oregon Natural Resources + } Commission shall pay each
amount, less a discount equivalent to that which is provided in
ORS 311.505. Payment shall be made to the county treasurer, who
shall distribute the payment to the taxing districts of the
county in accordance with the schedule of percentages computed
under ORS 311.390.
(5) Notwithstanding any other provision of the wildlife laws,
the commission shall make the payments to counties required by
this section annually from the moneys in the { - State Wildlife
Fund established by ORS 496.300 - } { + Oregon Natural
Resources Fund + }.
SECTION 105. ORS 496.375 is amended to read:
496.375. As used in ORS 496.380 to 496.390 'nongame wildlife'
means all wildlife species over which the { - State Fish and
Wildlife Commission - } { + Oregon Department of Natural
Resources + } has jurisdiction, except game mammals, as defined
in ORS 496.004, fur-bearing mammals as defined in ORS 496.004,
game birds as defined in ORS 496.007 { + , + } and game fish as
defined in ORS 496.009.
SECTION 106. ORS 496.390 is amended to read:
496.390. The { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + } shall have access
to and control of the moneys held in the Nongame Wildlife Fund,
but shall use such moneys only to protect and preserve nongame
wildlife and their habitat.
SECTION 107. ORS 496.440 is amended to read:
496.440. { + The Oregon Department of Natural Resources shall
conduct + }a salmon and trout enhancement program { - shall be
conducted by the State Fish and Wildlife Commission - } to
benefit all users of the salmon and trout resources in this
state. The program shall be conducted in such manner as to
provide the greatest possible opportunity for citizen volunteer
participation to achieve the goals of the program.
SECTION 108. ORS 496.445 is amended to read:
496.445. In carrying out the salmon and trout enhancement
program, the { - State Fish and Wildlife Commission - }
{ + Director of the Oregon Department of Natural Resources + }
shall:
(1) Provide appropriate { - State Department of Fish and
Wildlife - } personnel to act as community advisors to
cooperatively develop enhancement projects with citizen
volunteers and to cooperatively evaluate enhancement projects
with the citizens responsible for project implementation.
(2) Provide technical assistance to citizens responsible for
implementation of enhancement projects.
(3) Coordinate the implementation of enhancement projects with
the activities of department staff and other agencies.
(4) Provide educational and informational materials to promote
public awareness and involvement in the salmon and trout
enhancement program.
(5) Supervise the activities of citizens developing local brood
stock for enhancement projects.
(6) Grant funds to citizens for the implementation of approved
enhancement projects from such moneys as may be available to the
{ - commission therefor - } { + director for that purpose + }.
(7) Develop and implement a remote hatchbox program as
described in ORS 496.458.
(8) Report annually to the Legislative Assembly on the progress
of the salmon and trout enhancement program.
SECTION 109. ORS 496.450 is amended to read:
496.450. (1) Any citizen or group of citizens may submit to the
{ - State Fish and Wildlife Commission - } { + Director of the
Oregon Department of Natural Resources + } a proposal for a
project consistent with the recovery or sustainability of native
stocks to be implemented under the salmon and trout enhancement
program or may submit a request for advice and assistance in
developing such a project.
(2) An enhancement project may include, but is not limited to,
habitat improvement, installation and operation of streamside
incubators, brood stock development, fish stocking and spawning
ground surveys and data collection.
(3) The { - commission - } { + director + } shall approve
for implementation only those enhancement projects based on sound
biological principles and shall use fish stocks most adapted to
the project locale. To the greatest extent practicable, a project
must be designed to maximize survival, adult returns and genetic
diversity while minimizing disease.
(4) Conditions for approval by the { - commission - }
{ + director + } for implementation of a project include but are
not limited to:
(a) Provisions satisfactory to the { - commission - }
{ + director + } for inspection and evaluation of the
implementation of a project; and
(b) Provisions satisfactory to the { - commission - }
{ + director + } for controlling the expenditure of and
accounting for any funds granted by the { - commission - }
{ + director + } for implementation of the project.
SECTION 110. ORS 496.455 is amended to read:
496.455. In carrying out any duties, functions or power under
the wildlife laws or the commercial fishing laws, the { - State
Fish and Wildlife Commission - } { + Director of the Oregon
Department of Natural Resources + } may authorize the taking of
native stocks and their sexual products, but may not provide any
such native stocks or the sexual products therefrom to any person
granted a permit by the { - commission - } { + Oregon Natural
Resources Commission + } pursuant to ORS 508.700 to 508.745
unless, at a minimum, sufficient fish are returned to the donor
stream to compensate fully for native smolts
{ - which - } { + that + } might have resulted from eggs
removed from the donor stock. When entering into a contract for
the taking of native stock with a person granted a permit
pursuant to ORS 508.700 to 508.745, the { - commission - }
{ + director + } shall consider the use of the facilities for
the taking of additional native stock for public management
activities, including the salmon and trout enhancement program.
SECTION 111. ORS 496.458 is amended to read:
496.458. (1) The { - State Fish and Wildlife Commission - }
{ + Oregon Department of Natural Resources + } shall develop and
implement a remote hatchbox program.
(2) To implement the remote hatchbox program required under
subsection (1) of this section, the { - commission - }
{ + Director of the Oregon Department of Natural Resources + }
shall:
(a) Identify sites in tributaries that are suitable for remote
hatchboxes;
(b) Adopt rules necessary to implement the remote hatchbox
program;
(c) Investigate the potential of producing remote hatchboxes
through an inmate work program of the Department of Corrections;
and
(d) Report annually to the Legislative Assembly on the progress
of the remote hatchbox program. The report shall include but need
not be limited to the sites the { - commission - }
{ + director + } has chosen, a copy of rules the
{ - commission - } { + director + } has adopted and findings
on the extent to which the { - commission - }
{ + director + } is utilizing labor, supplies or services
provided by an inmate work program.
(3) Rules adopted by the { - commission - }
{ + director + } under subsection (2) of this section shall:
(a) Ensure that the program is scientifically sound;
(b) Be consistent with the goals of the Oregon Plan, as
described in ORS 541.405; and
(c) Identify protocols for determining when the use of remote
hatchboxes is an appropriate activity under the Oregon Plan.
SECTION 112. ORS 496.460 is amended to read:
496.460. (1) The Salmon and Trout Enhancement Program Advisory
Committee is established as an advisory committee to the
{ - State Fish and Wildlife Commission - } { + Oregon
Department of Natural Resources and the Oregon Natural Resources
Commission + }. The committee shall be of such size and have such
geographical representation as the commission determines
appropriate. Members of the committee shall be appointed by the
Governor.
(2) The committee shall review { - the policies of the State
Department of Fish and Wildlife - } { + department policies + }
and make recommendations to the { - State Fish and Wildlife
Commission and to the - } department { + and the commission + }
concerning the implementation of salmon and trout enhancement
projects.
(3) A member of the committee shall receive no compensation for
services as a member. However, subject to any applicable law
regulating travel and other expenses of state officers and
employees, a member shall be reimbursed for actual and necessary
travel and other expenses incurred in the performance of official
duties from { - such moneys as may be available to the
department therefor - } { + moneys available to the
department + }.
SECTION 113. ORS 496.470 is amended to read:
496.470. (1) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } shall adopt by rule
plans for the natural production of anadromous fish runs in the
basins set forth in subsection (2) of this section. The
commission shall adopt the plans after government-to-government
consultation in the forum established pursuant to United States
v. Oregon, United States District Court Case No. 68-513 MA, among
the { - State Department of Fish and Wildlife - } { + Oregon
Department of Natural Resources + } and the Confederated Tribes
of the Umatilla Indian Reservation, the Confederated Tribes of
the Warm Springs Reservation of Oregon and the Nez Perce Tribe.
(2) The basins for which plans may be adopted under subsection
(1) of this section are:
(a) Hood;
(b) Deschutes;
(c) Fifteenmile Creek;
(d) John Day;
(e) Umatilla;
(f) Walla Walla;
(g) Grande Ronde; and
(h) Imnaha.
(3) Of the basins set forth in subsection (2) of this section,
the commission shall give priority to adopting plans for the
Grande Ronde, Imnaha, Umatilla, Walla Walla and Hood basins.
SECTION 114. ORS 496.480 is amended to read:
496.480. The { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + } shall report at
least once every six months to the appropriate legislative
committee and the Governor on the progress of the department and
the { - State Fish and Wildlife Commission - } { + Oregon
Natural Resources Commission + } in implementing ORS 496.470 and
496.475.
SECTION 115. ORS 496.490 is amended to read:
496.490. (1) { + (a) + } The { - State Department of Fish and
Wildlife - } { + Oregon Department of Natural Resources + }
shall establish a Keep Oregon's Rivers Clean program for the
collection, recycling and proper disposal of fishing tackle,
including monofilament line, fluorocarbon leaders, lines, lead
weights and lures.
{ + (b) The department may establish a method by which
deposited tackle may be collected for recycling and disposal. + }
(2) The program shall consist of collection points located at
or near established fishing areas and boat ramps. At each
collection point, the department shall work with conservation and
outdoor sports groups to provide a container for collection of
tackle and post permanent signs or other notices that explain the
program, the benefits of proper tackle recycling and disposal and
the Oregon conservation ethic.
{ - (3) The State Department of Fish and Wildlife may work
cooperatively with the State Parks and Recreation Department to
establish a method by which deposited tackle may be collected for
recycling and disposal. - }
{ - (4) - } { + (3) + } The { - State Department of Fish
and Wildlife - } { + department + } shall include in any
statewide sportfishing regulations publication produced by the
department a statement explaining the collection and recycling
program and encouraging nongovernmental organization
participation in the program.
SECTION 116. ORS 496.510 is amended to read:
496.510. The State of Oregon assents to the Act of Congress
entitled, 'An Act to provide that the United States shall aid the
states in wildlife-restoration projects, and for other purposes,
' approved September 2, 1937, Public Law No. 415, 75th Congress
(50 Stat. 917, 16 U.S.C.A. 669). The { - State Fish and
Wildlife Commission - } { + Oregon Department of Natural
Resources + } shall perform such acts as may be necessary to the
conduct and establishment of cooperative wildlife-restoration
projects, as defined in said Act of Congress, in compliance with
said Act and with rules and regulations promulgated by the
{ + United States + } Secretary of the Interior thereunder.
SECTION 117. ORS 496.525 is amended to read:
496.525. (1) The State of Oregon assents to the provisions of
the Act of Congress entitled, 'An Act to provide that the United
States shall aid the states in fish restoration and management
projects, and for other purposes,' approved August 9, 1950,
Public Law No. 681, 81st Congress (64 Stat. 430, 16 U.S.C.A.
777).
(2) The { - State Fish and Wildlife Commission - }
{ + Oregon Department of Natural Resources + } shall perform
such acts as may be necessary to the conduct and establishment of
cooperative fish restoration projects, as defined in said Act of
Congress, in compliance with said Act and rules and regulations
promulgated thereunder by the { + United States + } Secretary of
the Interior.
SECTION 118. ORS 496.550 is amended to read:
496.550. (1) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } shall arrange, by
contest or other appropriate means, for the selection of the
design of the annual migratory waterfowl stamp required by ORS
497.151 and for the production and sale of the stamps.
(2) The commission may produce stamps in such number as the
commission considers appropriate and may make stamps available
for the creation of migratory waterfowl art prints and other
related art works and may arrange for the sale of stamps, prints
and art works to persons desiring to purchase those items.
SECTION 119. ORS 496.555 is amended to read:
496.555. In carrying out its duties, functions and powers with
regard to the migratory waterfowl stamp, the { - State Fish and
Wildlife Commission - } { + Oregon Natural Resources
Commission + } may contract for the performance of those duties,
functions and powers. The contract may include, among other
matters, provisions for advance payment or reimbursement for
services performed pursuant to any such contract. All costs and
expenses incurred pursuant to this section shall be paid from the
Migratory Waterfowl Subaccount established under ORS 496.303.
SECTION 120. ORS 496.562 is amended to read:
496.562. The purposes of this section and ORS 496.558, 496.566
and 497.153 are to:
(1) Authorize the { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } to issue to hunters
an upland bird stamp for a specified fee;
(2) Establish a fund to be financed by the sale of upland bird
stamps and any art works and prints related to the upland bird
stamp for the purposes of promoting the propagation and
conservation of upland birds and acquiring, developing, managing,
enhancing, purchasing or acquiring through lands exchange upland
bird habitat; and
(3) Provide the { - State Fish and Wildlife - } commission
with improved data on the location and number of upland bird
hunters.
SECTION 121. ORS 496.566 is amended to read:
496.566. (1) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } shall arrange, by
contest or other appropriate means, for the selection of the
design of the annual upland bird stamp authorized by ORS 497.153
and for the production and sale of the stamps.
(2) The commission may produce stamps in such number as the
commission considers appropriate and may make stamps available
for the creation of upland bird art prints and other related art
works and may arrange for the sale of stamps, prints and art
works to persons desiring to purchase those items.
(3) In carrying out its duties, functions and powers with
regard to the upland bird stamp, the { - State Fish and
Wildlife - } commission may contract for the performance of those
duties, functions and powers. The contract may include, among
other matters, provisions for advance payment or reimbursement
for services performed pursuant to any such contract. All costs
and expenses incurred pursuant to this section shall be paid from
the Upland Bird Subaccount established under ORS 496.303.
SECTION 122. ORS 496.605 is amended to read:
496.605. The { - State Fish and Wildlife Director - }
{ + Director of the Oregon Department of Natural Resources + }
and any deputies of the director and all other peace officers of
this state or any political subdivision thereof have jurisdiction
of and may enforce any of the provisions of the wildlife laws.
SECTION 123. ORS 496.610 is amended to read:
496.610. (1) The Department of State Police shall employ a
sufficient number of state police to enforce the wildlife laws.
(2) The services and expenses of the Department of State Police
incurred in the enforcement of the wildlife laws shall be paid
from the { - State Wildlife Fund - } { + Oregon Natural
Resources Fund + }.
(3) The Superintendent of State Police may appoint special
enforcement officers authorized to enforce the wildlife laws.
Individuals so appointed must be special agents of the United
States Fish and Wildlife Service or the National Marine Fisheries
Service, and shall serve at the pleasure of the superintendent
without additional compensation. Each such special enforcement
officer shall have all powers and authority of a peace officer of
this state in serving warrants, subpoenas and other legal process
in enforcement of the wildlife laws.
SECTION 124. ORS 496.615 is amended to read:
496.615. The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + }, with the approval
of the Governor and Superintendent of State Police, may employ
such persons as
{ - they deem - } { + the commission deems + } necessary or
expedient for the enforcement of the wildlife laws. The services
and expenses of these persons are payable out of the { - State
Wildlife Fund - } { + Oregon Natural Resources Fund + }. It is
the intention of this section and ORS 496.610 that the commission
employ only such persons as agreed upon between the commission,
the Governor and the Superintendent of State Police, and that the
duties of wildlife law enforcement,
{ - so - } { + as + } far as is economical and practicable,
be performed by the Department of State Police.
SECTION 125. ORS 496.620 is amended to read:
496.620. No person authorized to enforce the wildlife laws
shall suffer any civil liability for the enforcement or attempted
enforcement of any provisions of the wildlife laws or for the
exercise or attempted exercise of any of the duties or privileges
granted to or imposed by law upon the { - State Fish and
Wildlife Commission - } { + Oregon Natural Resources
Commission + } or such persons.
SECTION 126. ORS 496.630 is amended to read:
496.630. (1) Upon information or complaint of the { - State
Fish and Wildlife Commission - } { + Oregon Natural Resources
Commission + } or any person authorized to enforce the wildlife
laws, district attorneys shall prosecute every criminal case in
which it appears that there has been a violation of the wildlife
laws or any rule promulgated pursuant thereto.
(2) Unless otherwise specifically provided, justice courts have
concurrent jurisdiction in the first instance with the circuit
court of all wildlife law offenses.
SECTION 127. ORS 496.665 is amended to read:
496.665. (1) Any court having jurisdiction of the offense, upon
receiving proof or probable cause for believing in the
concealment of any wildlife taken, killed or had in possession,
under control, or shipped contrary to the wildlife laws, shall
issue a search warrant and cause a search to be made in any
place, and to that end cause any building, enclosure, car,
automobile, boat, apartment, chest, box, parcel, crate or basket
to be opened and the contents examined by any person authorized
to enforce the wildlife laws.
(2) All wildlife, or parts thereof, thus discovered shall be
held by the { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } as evidence against
any party accused of the crime in connection therewith.
(3) Upon conviction of the parties accused, such wildlife, or
parts thereof, shall be disposed of by the commission. Any funds
arising from the disposal shall { - become a part of the State
Wildlife Fund. - } { + be deposited in the Oregon Natural
Resources Fund. Moneys deposited in the fund under this
subsection are continuously appropriated to the Oregon Department
of Natural Resources for the purpose of carrying out the duties,
functions and powers of the department as prescribed by sections
1 (1) and (2) and 5 (1)(a) and (b) of this 2011 Act. + }
SECTION 128. ORS 496.680 is amended to read:
496.680. (1) All wildlife taken by, or in the possession of any
person in violation of the wildlife laws, and all guns, boats,
traps, fishing apparatus and implements used in angling, hunting
or trapping or taking any wildlife in violation of the wildlife
laws may be seized by any person authorized to enforce the
wildlife laws, and may be forfeited.
(2) All wildlife shot by any person while violating any
provision of ORS 164.245 to 164.270 or 498.120 shall be seized by
any person authorized to enforce the wildlife laws and shall be
forfeited.
(3) If forfeited, such property shall be turned over to the
{ - State Fish and Wildlife Commission - } { + Oregon Natural
Resources Commission + } by order of the court at the time of
passing sentence for the violation.
(4) The commission may dispose of such property in any manner
it considers proper, but the clear proceeds derived from the sale
of any seized guns, boats, traps, fishing apparatus or implements
shall be deposited in the Common School Fund. Any wildlife taken
in violation of the wildlife laws may be disposed of forthwith or
used for food purposes, under rules of the commission, to prevent
spoilage.
(5) Upon conviction of a person for taking wildlife while
violating any provision of ORS 164.245 to 164.270 or 498.120, the
court shall include in the sentence a requirement that the
convicted person pay to the seizing agency an amount equal to the
cost incurred in seizing, storing and disposing of the seized and
forfeited wildlife.
SECTION 129. ORS 496.700 is amended to read:
496.700. (1) Where the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + } has
been furnished information of the violation of any of the
wildlife laws, the commission, or
{ - one especially - } { + an agent + } authorized by
{ - it - } { + the commission + }, may proceed to the place
where the offense is said to have been committed and summon and
examine under oath witnesses to ascertain the facts and to avoid
useless and frivolous indictments or prosecutions.
(2) Witnesses shall be paid by the commission from the
{ - State Wildlife Fund - } { + Oregon Natural Resources
Fund + } at the rate of $5 per day and mileage from their places
of residence at the rate of eight cents per mile.
(3) No witness so summoned shall refuse to attend or testify
under this section.
SECTION 130. ORS 496.705 is amended to read:
496.705. (1) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } may institute suit
for the recovery of damages for the unlawful taking or killing of
any of the wildlife referred to in subsection (2) of this section
that are the property of the state.
(2)(a) The damages referred to in subsection (1) of this
section are as follows:
(A) Each game mammal other than moose, mountain sheep, mountain
goat, elk or silver gray squirrel, or deer or antelope described
in subparagraphs (D) and (E) of this paragraph, $800.
(B) Each moose, mountain sheep or mountain goat, other than
those described in subparagraphs (F), (G) and (H) of this
paragraph, $10,000.
(C) Each elk, other than those described in subparagraph (I) of
this paragraph, $1,500.
(D) Each deer with at least four points on one antler, $7,500.
(E) Each antelope with at least one horn equal to or greater
than 14 inches, $7,500.
(F) Each moose with antlers, $25,000.
(G) Each mountain sheep that has at least one horn equal to or
greater than one half curl, $25,000.
(H) Each mountain goat that has at least one horn equal to or
greater than six inches, $25,000.
(I) Each elk with at least six points on one antler, $15,000.
(J) Each silver gray squirrel, $20.
(K) Each game bird other than wild turkey, $20.
(L) Each wild turkey, $100.
(M) Each game fish other than salmon, steelhead trout, halibut
or sturgeon, $10.
(N) Each sturgeon other than those specified in subparagraph
(O) of this paragraph, salmon, steelhead trout or halibut, $250.
(O) Each oversized sturgeon, as specified by the commission by
rule, $1,000.
(P) Each fur-bearing mammal other than bobcat or fisher, $100.
(Q) Each bobcat or fisher, $700.
(R) Each specimen of any wildlife species whose survival is
specified by the wildlife laws or the laws of the United States
as threatened or endangered, $1,000.
(S) Each specimen of any wildlife species otherwise protected
by the wildlife laws or the laws of the United States, but not
otherwise referred to in this subsection, $50.
(T) Each bald eagle, golden eagle, goshawk, osprey, peregrine
falcon or any other raptor listed as a threatened species or an
endangered species by the commission by rule, $5,000.
(U) Each raptor except those specified in subparagraph (T) of
this paragraph, $2,000.
(b) For purposes of this subsection:
(A) A point must be at least one inch, measured from the main
beam of the antler to the tip of the point.
(B) Horn length must be measured from the base of the hairline
to the tip of the horn.
(3) In any such action, the court shall award to the prevailing
party, in addition to costs and disbursements, reasonable
attorney fees.
(4) Such civil damages shall be in addition to other penalties
prescribed by the wildlife laws for the unlawful taking or
killing of wildlife.
(5) Any circuit or justice court has jurisdiction to try any
case for the recovery of damages for the unlawful taking or
killing of any of the wildlife as provided by this section.
{ + NOTE: + } Section 131 was deleted. Subsequent sections
were not renumbered.
SECTION 132. ORS 496.820 is amended to read:
496.820. { + (1) As used in this section and ORS 496.825, '
person' means an individual, corporation, association, firm,
partnership, joint stock company, municipal corporations and all
other political subdivisions of the State of Oregon. The federal
government or any of its agencies are specifically excluded. + }
{ - (1) - } { + (2) + } Any person applying for a permit to
appropriate water for hydroelectric purposes under ORS 537.150 to
537.252 or any person applying for a preliminary permit or
license under ORS 543.010 to 543.610 shall pay an administration
fee of $350 to the
{ - State Department of Fish and Wildlife - } { + Oregon
Department of Natural Resources + }.
{ - (2) - } { + (3) + } If a person pays the administration
fee under subsection { - (1) - } { + (2) + } of this section
at the time the person applies for a preliminary permit under ORS
543.210, the person shall not also be required to pay the fee
when applying for a license for the same project under ORS
543.010 to 543.610.
SECTION 133. ORS 496.825 is amended to read:
496.825. (1) In addition to any other fee required by law, at
the time the person applies to the { - Water Resources
Department - } { + Oregon Department of Natural Resources + }
for a license to operate a hydroelectric project under ORS
543.010 to 543.610 or for a permit to appropriate water for
hydroelectric purposes under ORS 537.150 to 537.230, the person
shall pay to the { - State Fish and Wildlife Director - }
{ + department + } an application fee the amount of which shall
be the greater of:
(a) $1,000; or
(b) Thirty-five cents for each kilowatt of proposed capacity of
the project.
(2) The { - director - } { + department + } shall postpone
the payment of the fee under subsection (1) of this section for a
permit to appropriate water under ORS 537.150 to 537.230 until
the person submits final plans and specifications for the project
to the
{ - Water Resources - } department under ORS 537.150.
(3) Subsection (1) of this section shall not apply to any
applicant for a permit or license for a project producing 100
theoretical horsepower or less.
{ + (4) The department shall use moneys collected pursuant to
subsection (1) of this section to administer the wildlife laws
and commercial fishing laws of this state. + }
SECTION 134. ORS 496.830 is amended to read:
496.830. A person who fails to pay the fee required under
section 4, chapter 674, Oregon Laws 1985, or the assessment under
section 5, chapter 674, Oregon Laws 1985, or ORS 543.265 on the
due date shall pay in addition to the assessed amount due, a
penalty in the amount of one percent of the fee per month for the
period that the fee is past due. The { - State Fish and
Wildlife Director - } { + Director of the Oregon Department of
Natural Resources + } may bring an action to collect an unpaid
fee or assessment in the name of the State of Oregon in the
Circuit Court of Marion County or the circuit court of the county
in which the project is located. The director shall be entitled
to recover all costs and attorney fees incurred in the legal
action.
SECTION 135. ORS 496.835 is amended to read:
496.835. (1) There is { - created within - }
{ + established in + } the State Treasury a revolving fund known
as the Oregon Fish and Wildlife Hydroelectric Fund, separate and
distinct from the General Fund. The moneys in { - this fund - }
{ + The Oregon Fish and Wildlife Hydroelectric Fund + } are
continuously appropriated { - for use by the State Department
of Fish and Wildlife - } { + to the Oregon Department of
Natural Resources for use + } in its activities related to
hydroelectric projects { + , + } including payment of necessary
administrative expenses.
(2) The { - fund created by subsection (1) of this
section - } { + Oregon Fish and Wildlife Hydroelectric Fund + }
shall consist of all moneys received under sections 4 and 5,
chapter 674, Oregon Laws 1985, ORS 496.820 and 496.825 and moneys
transferred from the
{ - Water Resources Department Hydroelectric Fund - }
{ + Oregon Natural Resources Fund + } as provided in ORS
536.015.
(3) Moneys in the { + Oregon Fish and Wildlife
Hydroelectric + } Fund may be invested as provided in ORS 293.701
to 293.820. Interest from any source derived from the investment
of the moneys of the fund shall be credited to the fund.
SECTION 136. ORS 497.002 is amended to read:
497.002. Except as provided in ORS 497.006, as used in this
chapter:
(1) 'Resident' means a person who has resided in this state at
least six consecutive months immediately prior to the date of
making application for a license, tag or permit issued by the
{ - State Fish and Wildlife Commission - } { + Oregon Natural
Resources Commission + }. Temporary absence from { - the - }
{ + this + } state for a purpose other than establishing
residency outside { - the - } { + this + } state shall not be
considered in determining whether a person meets the residency
requirements of this subsection.
(2) 'Nonresident' means any person other than a resident.
SECTION 137. ORS 497.006 is amended to read:
497.006. (1) As used in this section:
(a) 'Active member of the Armed Forces of the United States'
means officers and enlisted personnel of the Armed Forces of the
United States who:
(A) Reside in this state while assigned to duty at any base,
station, shore establishment or other facility in this state;
(B) Reside in this state while serving as members of the crew
of a ship that has an Oregon port or shore establishment as its
home port or permanent station; or
(C) Reside in another state or a foreign country and establish
Oregon residency by filing Oregon state income taxes no later
than 12 months before leaving active duty.
(b) 'Armed Forces of the United States' means:
(A) The Army, Navy, Air Force, Marine Corps and Coast Guard of
the United States;
(B) The reserves of the Army, Navy, Air Force, Marine Corps and
Coast Guard of the United States; and
(C) The Oregon National Guard and the National Guard of any
other state or territory.
(c) 'Dependent children' includes any children of an active
member of the Armed Forces of the United States who:
(A) Are under 18 years of age and not married, otherwise
emancipated or self-supporting; or
(B) Are under 23 years of age, unmarried, enrolled in a
full-time course of study in an institution of higher learning
and dependent on the member for over one-half of their support.
(2) The following persons shall be considered resident persons
for the purpose of purchasing licenses, tags and permits issued
by the { - State Fish and Wildlife Commission - } { + Oregon
Natural Resources Commission + }:
(a) Active members of the Armed Forces of the United States who
furnish to the commission evidence satisfactory to the commission
that the person is permanently assigned to active duty in this
state and the spouses and dependent children of such members.
(b) Any active member of the Armed Forces of the United States
who furnishes to the commission evidence satisfactory to the
commission that the person is a member of the Armed Forces of the
United States and the spouse and dependent children of such
member.
(c) Aliens who furnish to the commission evidence satisfactory
to the commission that the person is attending a school in this
state pursuant to a foreign student exchange program.
SECTION 138. ORS 497.014 is amended to read:
497.014. (1) A person may take fish or shellfish in the waters
of the Pacific Ocean within three miles of the coast of the State
of Oregon or the State of Washington, between the
Oregon-Washington boundary and Cape Falcon, or in the waters of
the Columbia River where it forms the Oregon-Washington boundary,
if the person holds either a valid Oregon or Washington license
therefor in accordance with the laws and rules of the respective
state. However, a person other than a Washington resident landing
fish or taking shellfish by boat in Oregon must hold a valid
Oregon angling or shellfish license. All persons landing fish by
boat in Oregon are subject to all Oregon laws, rules and
regulations relating to taking fish or shellfish, including bag
and length requirements.
(2) Subsection (1) of this section applies only if the
{ - State Fish and Wildlife Commission - } { + Oregon Natural
Resources Commission + } by rule determines that laws, rules or
regulations of the State of Washington, in substance or effect,
contain provisions that make a valid Oregon license lawful in the
waters of the Pacific Ocean within three miles of the coast of
the State of Oregon or the State of Washington, between the
Oregon-Washington boundary and Leadbetter Point, or in the waters
of the Columbia River where it forms the Oregon-Washington
boundary.
SECTION 139. ORS 497.016 is amended to read:
497.016. Unless otherwise provided by law, all licenses, tags
and permits issued by the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + }
shall be valid for such period of time as the commission
prescribes.
SECTION 140. ORS 497.022 is amended to read:
497.022. (1) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } may appoint agents
to issue any of the licenses, tags or permits the commission is
authorized by law to issue. The commission shall prescribe the
procedure for the issuance of such licenses, tags and permits.
Agents of the commission shall issue licenses, tags and permits
in accordance with the prescribed procedure and shall charge and
collect the fees prescribed by law therefor.
(2) In addition to the fees prescribed by law for the issuance
of a license, tag or permit, the issuing agent shall charge and
collect $5 for each resident annual sportsperson's license issued
pursuant to ORS 497.132 (2)(a) and $2 each for any other license,
tag or permit. If the agent is a county clerk, the agent shall
deposit such additional fees in the general fund of the county
for which the agent is the clerk. If the agent is an employee of
the { - State Department of Fish and Wildlife - } { + Oregon
Department of Natural Resources + }, the moneys shall be
deposited in the { - State Wildlife Fund - } { + Oregon
Natural Resources Fund + }. Agents other than county clerks or
department employees who issue licenses without the use of a
state computerized licensing system may retain such additional
fees for their license tag or permit issuance services. Agents
other than county clerks or department employees who issue
licenses, tags or permits using a state computerized licensing
system may retain such portion of the additional fees, but not
less than $2.50 for each resident annual sportsperson's license
issued pursuant to ORS 497.132 (2)(a) or $1 for any other
license, tag or permit, as may be specified by contract between
the department and the agent for license, tag or permit issuance
service performed by the agent.
(3) If the commission finds that an agent appointed pursuant to
this section has violated any of the provisions of law or the
procedures prescribed by the commission for the issuance of
licenses, tags or permits or the collection and disposition of
fees therefrom, the commission may revoke the authority of the
agent to issue licenses, tags and permits, or may suspend such
authority for such time as the commission considers appropriate.
{ + (4) Moneys deposited in the Oregon Natural Resources Fund
under subsection (2) of this section are continuously
appropriated to the department for the purpose of carrying out
the duties, functions and powers as prescribed by sections 1 (1)
and (2) and 5 (1)(a) and (b) of this 2011 Act. + }
SECTION 141. ORS 497.026 is amended to read:
497.026. (1) No agent appointed by the { - State Fish and
Wildlife Commission - } { + Oregon Natural Resources
Commission + } to issue licenses, tags or permits shall fail to
remit to the commission moneys received from the issuance of
licenses, tags and permits in the manner required by this
section.
(2) The commission shall, by rule, prescribe the method in
which license agents shall remit all moneys belonging to the
state accruing from the issuance of licenses, tags and permits.
(3) Notwithstanding subsection (2) of this section, the
commission shall not require a license agent to remit moneys from
the issuance of licenses, tags and permits more often than once
each month if:
(a) The license agent issues licenses, tags and permits in the
amount of $12,500 or less each year; and
(b) The license agent does not use a state computerized
licensing system to issue licenses, tags and permits.
SECTION 142. ORS 497.032 is amended to read:
497.032. If a license, tag or permit issued by the { - State
Fish and Wildlife Commission - } { + Oregon Natural Resources
Commission + } is lost, destroyed or stolen, the holder thereof
may submit to the commission a certificate stating that the
license, tag or permit has been lost, stolen or destroyed,
together with a fee of $15 for each such license, tag or permit.
If the fee paid for the license, tag or permit that was lost,
destroyed or stolen was less than $15, the same fee shall be
charged for the duplicate license, tag or permit. Upon receipt of
the certificate and appropriate fees, the commission shall issue
to the person a duplicate license, tag or permit that may be used
in lieu of the lost, destroyed or stolen licenses, tags or
permits.
SECTION 143. ORS 497.036 is amended to read:
497.036. The holder of any license, tag or permit to angle,
take, hunt or trap must consent to the inspection of any such
license, tag or permit and any wildlife taken pursuant to such
license, tag or permit:
(1) By any employee of the { - State Fish and Wildlife
Commission - } { + Oregon Department of Natural Resources + }
or any person authorized to enforce the wildlife laws.
(2) By the owner, or the agent of the owner, of any land upon
which the license, tag or permit holder is angling for, taking,
hunting or trapping any wildlife.
SECTION 144. ORS 497.071 is amended to read:
497.071. The Legislative Assembly finds it imperative that the
wildlife resources of the State of Oregon be augmented to a level
sufficient to provide Oregonians the recreational benefits of
hunting and angling, an abundance of wildlife, and the reasonable
expectation that their efforts will result in the taking of game
or fish. The intent of this legislation is to provide adequate
revenue to the { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } whereby game mammal
herds and game fish populations may be increased for the benefit
of Oregon hunters and anglers. Concomitant with the purposes for
which the Legislative Assembly approves this legislation, the
{ - State Fish and Wildlife - } commission is directed to
expend the revenues created by this section and ORS 497.102 to
497.134 in achieving wildlife management objectives including,
but not limited to the following:
(1) Habitat management.
(2) Predator control.
(3) Replenishment of fish and game populations.
(4) Reduction of the anadromous bag limit.
(5) Adjustment of seasons and deadlines to protect returning
anadromous adults.
(6) Supplemental wildlife feeding.
(7) Protection of game mammals and game birds with
characteristics of high reproductive potential.
(8) Enforcement of closings necessitated by herd or population
depletion.
(9) Expansion of the road and access closure program when
necessary to reduce hunting pressure in specific areas.
SECTION 145. ORS 497.075 is amended to read:
497.075. (1) Except as provided in subsections (2), (3) and (4)
of this section, no person shall angle for, take, hunt or trap,
or assist another in angling for, taking, hunting or trapping,
any wildlife unless the person has in possession such valid
licenses, tags and permits therefor as the { - State Fish and
Wildlife Commission - } { + Oregon Natural Resources
Commission + } issues.
(2) An angling or shellfish license is not required:
(a) Of a person younger than 14 years of age. However, each
such person who angles for salmon, steelhead trout, sturgeon or
halibut must have in possession a valid annual tag to angle for
salmon, steelhead trout, sturgeon and halibut while so angling.
(b) Of a resident person to angle or take shellfish on land
owned by that person. However, each such person who angles for
salmon, steelhead trout, sturgeon or halibut must have in
possession a valid annual tag to angle for salmon, steelhead
trout, sturgeon and halibut while so angling.
(c) Of a resident person to angle or take shellfish on land
owned by a member of the person's immediate family and upon which
the person resides. However, each such person who angles for
salmon, steelhead trout, sturgeon or halibut must have in
possession a valid annual tag to angle for salmon, steelhead
trout, sturgeon and halibut while so angling.
(d) Of a person to angle for or otherwise take smelt.
(e) Of a person to take crayfish or freshwater clams.
(3) A hunting license is not required:
(a) Of a person younger than 14 years of age to hunt wildlife,
except those species for which a tag or permit is required by the
wildlife laws or by any rule promulgated pursuant thereto.
(b) Of a resident person to hunt wildlife, except those species
of wildlife for which a tag or permit is required by the wildlife
laws or by any rule promulgated pursuant thereto, on land upon
which the person resides and is owned by the person or a member
of the person's immediate family.
(c) Of a person who holds a valid trapping license to take, by
any means involving the use of a weapon, fur-bearing mammals
during authorized trapping seasons or predators.
(d) Of a person to take wildlife pursuant to ORS 498.012,
notwithstanding any other provision of this subsection.
(4) A trapping license is not required:
(a) Of a resident person to trap fur-bearing mammals or
predators, except those species for which a tag or permit is
required by the wildlife laws or any rule promulgated pursuant
thereto, on land upon which the person resides and is owned by
the person or a member of the person's immediate family.
(b) Of a person younger than 14 years of age to trap
fur-bearing mammals or predators, except those species for which
a tag or permit is required by the wildlife laws or by any rule
promulgated pursuant thereto.
(c) Of a person to trap wildlife that is not protected by the
wildlife laws or the laws of the United States.
SECTION 146. ORS 497.079 is amended to read:
497.079. Notwithstanding ORS 497.075, 497.121 and 497.132, the
{ - State Fish and Wildlife Commission - } { + Oregon Natural
Resources Commission + } may issue an order that authorizes
individuals to angle for fish or take shellfish in the waters of
this state without the licenses or tags, or without the licenses
and tags otherwise required by law, on any two consecutive days
each year.
SECTION 147. ORS 497.102 is amended to read:
497.102. (1) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } is authorized to
issue, upon application, to persons desiring to hunt wildlife the
following licenses and permits and shall charge therefor the
following fees:
(a) Resident annual hunting license to hunt wildlife, $23.50.
(b) Nonresident annual hunting license to hunt wildlife,
$134.50.
(c) Resident annual juvenile hunting license for persons 12
through 17 years of age to hunt wildlife, $11.50.
(d) Nonresident annual juvenile hunting license for persons 12
through 17 years of age to hunt wildlife, $17.50.
(e) Resident pioneer hunting license to hunt wildlife for
persons 65 years of age or older who have resided in the state
for not less than 50 years prior to the date of application,
free.
(f) Resident annual senior citizen hunting license to hunt
wildlife for persons 70 years of age or older who have resided in
the state for not less than five years prior to the date of
application, one-half the fee imposed under paragraph (a) of this
subsection for a resident annual hunting license to hunt
wildlife.
(g) Resident disabled veteran hunting license to hunt wildlife
for a person who files with the commission written proof that the
last official certification of record by the United States
Department of Veterans Affairs or any branch of the Armed Forces
of the United States shows the person to be at least 25 percent
disabled, free.
(h) Annual resident private hunting preserve permit to hunt
privately owned hunting preserve game birds, $4.
(i) Annual nonresident private hunting preserve permit to hunt
privately owned hunting preserve game birds, $10.
(j) Nonresident hunting license to hunt migratory waterfowl and
upland birds for three consecutive days, $24.50.
(2) The hunting preserve permits referred to in subsection
(1)(h) and (i) of this section are in lieu of the hunting
licenses required by the wildlife laws.
SECTION 148. ORS 497.112 is amended to read:
497.112. (1) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } is authorized to
issue, upon application, to persons desiring to hunt wildlife the
following general tags and shall charge therefor the following
fees:
(a) Resident annual elk tag to hunt elk, $40.50.
(b) Nonresident annual elk tag to hunt elk, $498.50.
(c) Special annual elk tag for holders of pioneer or disabled
veteran hunting licenses to hunt elk, one-half the fee imposed
under paragraph (a) of this subsection for a resident annual elk
tag to hunt elk.
(d) Resident annual deer tag to hunt deer, $22.50.
(e) Nonresident annual deer tag to hunt deer, $373.50.
(f) Resident annual black bear tag to hunt black bear, $12.50.
(g) Nonresident annual black bear tag to hunt black bear,
$180.50.
(h) Resident annual mountain sheep tag to hunt mountain sheep,
$120.50.
(i) Nonresident annual mountain sheep tag to hunt mountain
sheep, $1,298.50.
(j) Resident annual mountain goat tag to hunt mountain goat,
$120.50.
(k) Nonresident annual mountain goat tag to hunt mountain goat,
$1,298.50.
(L) Resident annual cougar tag to hunt cougar, $12.50.
(m) Nonresident annual cougar tag to hunt cougar, $12.50.
(n) Resident annual antelope tag to hunt antelope, $42.50.
(o) Nonresident annual antelope tag to hunt antelope, $331.50.
(p) Resident annual turkey tag to hunt turkeys, $20.50.
(q) Resident annual juvenile turkey tag to hunt turkeys, $8.50.
(r) Nonresident annual juvenile turkey tag to hunt turkeys,
$8.50.
(s) Nonresident annual turkey tag to hunt turkeys, $75.50.
(t) Outfitter and guide annual deer tag to hunt deer, $495.25.
(u) Outfitter and guide annual elk tag to hunt elk, $731.75.
(2)(a) Notwithstanding ORS 496.146 (10), the commission is
authorized to issue each year one special tag that is auctioned
to the highest bidder in a manner prescribed by the commission
for each of the following:
(A) Mountain sheep;
(B) Antelope; and
(C) Mountain goat.
(b) In addition to the tags referred to in paragraph (a) of
this subsection, the commission is authorized to issue each year
one special tag that is raffled in a manner prescribed by the
commission for each of the following:
(A) Mountain sheep;
(B) Antelope; and
(C) Mountain goat.
(c) Moneys received under this subsection for:
(A) Mountain sheep tags shall be placed in the Mountain Sheep
Subaccount established in ORS 496.303;
(B) Antelope tags shall be placed in the Antelope Subaccount
established in ORS 496.303; and
(C) Mountain goat tags shall be placed in the Mountain Goat
Subaccount established in ORS 496.303.
(d) Notwithstanding ORS 496.146 (10), the commission, upon the
recommendation of the Access and Habitat Board to fulfill the
board's charge of providing incentives to increase public access
and habitat improvements to private land, is authorized to issue
each year up to 10 elk and 10 deer tags to hunt deer or elk. The
tags shall be auctioned or raffled to the highest bidder in a
manner prescribed by the commission. The Access and Habitat
Board, in recommending any tags, shall include a proposal as to
the land on which each tag can be used and a percentage of funds
received from the tags that may revert to the landowner if the
tag is limited to private land. However, the percentage cannot be
more than 50 percent and the programs must, by written agreement,
provide for public access and habitat improvements.
(3) The tags referred to in subsection (1) of this section are
in addition to and not in lieu of the hunting licenses required
by law.
(4) The commission may, at the time of issue only, indorse upon
the tags referred to in subsection (1) of this section an
appropriate designation indicating whether it is for a game
animal to be taken with bow and arrow or with firearms, at the
choice of the applicant. The commission may prescribe by rule
that the holder of such a tag is not authorized to take the game
animal by any other means than the tag so indorsed.
(5) Except as provided in subsection (6) of this section, a
person is not eligible to obtain, in a lifetime, more than one
controlled hunt tag issued by the commission to hunt mountain
sheep and one controlled hunt tag issued by the commission to
hunt mountain goat.
(6) A person is eligible to obtain mountain sheep tags,
antelope tags or mountain goat tags described in subsection
(2)(a) and (b) of this section, regardless of whether the person
has previously taken a mountain sheep, antelope or mountain goat
or previously obtained a mountain sheep tag, antelope tag or
mountain goat tag issued pursuant to subsection (1) or (2)(a) or
(b) of this section.
(7) The number of nonresident mountain goat tags and
nonresident mountain sheep tags shall be decided by the
commission, but:
(a) The number of nonresident mountain goat tags may not be
less than five percent nor more than 10 percent of all mountain
goat tags issued.
(b) The number of nonresident mountain sheep tags may not be
less than five percent nor more than 10 percent of all mountain
sheep tags issued.
(8) The number of tags issued by drawing under subsection
(1)(g), (m) and (o) of this section shall be decided by the
commission, but for each class of tag so issued, the number may
not be more than three percent of all tags of that class issued
for hunting in a particular area except one nonresident tag may
be issued for each hunt when the number of authorized tags is
less than 35. The number of tags issued under subsection (1)(g)
of this section for the general hunting season may be decided by
the commission, but the number may not be more than three percent
of all tags issued the previous year for hunting in a particular
area.
(9) The number of tags issued by drawing under subsection
(1)(b) and (e) of this section shall be decided by the
commission, but for each class of tag so issued, the number may
not be more than five percent of all tags of that class issued
for hunting in a particular area except one nonresident tag may
be issued for each hunt when the number of authorized tags is
fewer than 35. The commission shall set the percentage by rule
each year after holding a public hearing.
(10) If a controlled hunt for game mammals is undersubscribed
during the primary controlled hunt drawing, the commission may
issue the unallocated tags to licensed hunters at up to four
times the standard tag fee on a first-come, first-served basis.
This controlled hunt tag program shall be in addition to and not
replace any existing controlled hunt tag program.
SECTION 149. ORS 497.121 is amended to read:
497.121. (1) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } is authorized to
issue, upon application, to persons desiring to angle for fish or
take shellfish the following licenses and tags and shall charge
therefor the following fees:
(a) Resident annual angling license, $26.
(b) Nonresident annual angling license, $93.25.
(c) Nonresident angling license to angle for seven consecutive
days, $51.75.
(d) Angling license to angle for one day, $11.75.
(e) Resident annual juvenile angling license for persons 14
through 17 years of age, $4.
(f) Nonresident annual juvenile angling license for persons 14
through 17 years of age, $17.25.
(g) Resident annual shellfish license, $5.
(h) Nonresident annual shellfish license, $18.50.
(i) Nonresident three-day shellfish license, $9.50.
(j) Two rod angling license valid in lakes and reservoirs for
anglers who also hold a valid annual angling license, $15.
(k) Resident pioneer angling license for persons 65 years of
age or older who have resided in the state for not less than 50
years prior to the date of application, free.
(L) Resident annual senior citizen angling license for persons
70 years of age or older who have resided in the state for not
less than five years prior to the date of application, one-half
the fee imposed under paragraph (a) of this subsection for a
resident annual angling license.
(m) Resident disabled veteran angling license for a person who
files with the commission written proof that the last official
certification of record by the United States Department of
Veterans Affairs or by any branch of the Armed Forces of the
United States shows the person to be at least 25 percent
disabled, free.
(n) Resident disabled veteran shellfish license for a person
who files with the commission written proof that the last
official certification of record by the United States Department
of Veterans Affairs or by any branch of the Armed Forces of the
United States shows the person to be at least 25 percent
disabled, free.
(o) Annual tag to angle for salmon, steelhead trout, sturgeon
and halibut, $24.50.
(p) Annual tag for persons under 18 years of age to angle for
salmon, steelhead trout, sturgeon and halibut, $6.50.
(q) Renewable tag to angle for hatchery salmon and steelhead,
$14.50.
(2) Any person who holds a valid permanent angling license for
persons who are blind or a permanent angling license for persons
in a wheelchair issued by the commission before January 1, 2000,
need not obtain a resident annual angling license under this
section.
(3) The annual tags to angle for salmon, steelhead trout,
sturgeon and halibut referred to in subsection (1)(o), (p) and
(q) of this section are in addition to and not in lieu of the
angling licenses required by the wildlife laws. However, an
annual tag to angle for salmon, steelhead trout, sturgeon and
halibut is not required of a person who holds a valid angling
license referred to in subsection (1)(c) or (d) of this section.
SECTION 150. ORS 497.123 is amended to read:
497.123. The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } shall adopt rules
for the issuance of hatchery harvest tags to persons holding an
annual angling license and an annual tag to angle for salmon and
steelhead. The rules shall allow persons holding a hatchery
harvest tag to angle for 10 fin clipped or otherwise marked
returning hatchery salmon and steelhead.
SECTION 151. ORS 497.132 is amended to read:
497.132. (1) In lieu of issuing to resident persons separate
licenses for angling and hunting, the { - State Fish and
Wildlife Commission - } { + Oregon Natural Resources
Commission + } is authorized to issue resident annual combination
angling and hunting licenses, and charge therefor a fee of $47.
(2)(a) In lieu of issuing to resident persons separate licenses
and tags for various hunting and angling activities, the
commission is authorized to issue resident annual sportsperson's
licenses and shall charge therefor a fee of $159.75. The
purchaser of each such license is authorized to engage in those
hunting and angling activities for which the following licenses
and tags are required:
(A) Combination license;
(B) Black bear tag;
(C) Cougar tag;
(D) General season elk tag;
(E) General season deer tag;
(F) Upland bird stamp;
(G) Oregon migratory waterfowl stamp;
(H) Turkey tag;
(I) Annual tag to angle for salmon, steelhead trout, sturgeon
and halibut; and
(J) Resident annual shellfish license.
(b) The holder of each sportsperson's license who wishes to
engage in hunting or angling activities for which permits are
required that are limited by quota must participate in the
process for allocation of the permits in the same manner as all
other permit applicants. However, if the holder of a
sportsperson's license is unsuccessful in obtaining a permit
limited by quota for a particular activity, the holder will be
issued a tag valid for any general season for that species.
(c) Notwithstanding any other provision of the wildlife laws,
of the moneys received from the sale of sportsperson's licenses:
(A) Four dollars from each such license shall be credited to
the { + Access and Habitat Board + } Subaccount { - referred
to - } { + described + } in ORS 496.242.
(B) Four dollars from each such license shall be credited to
the subaccount { - referred to - } { + described + } in ORS
496.283.
(C) Seventy-five cents from each such license shall be credited
to the Fish Screening Subaccount established under ORS 496.303.
(D) Twenty-five cents from each such license shall be credited
to the Fish Passage Fund established under ORS 497.139.
(3)(a) In lieu of issuing to resident persons under 18 years of
age separate licenses and tags for angling and hunting, the
commission is authorized to issue resident annual sportsperson's
licenses for persons under 18 years of age and shall charge
therefor a fee of $50. The purchaser of each such license is
authorized to engage in those hunting and angling activities for
which the following licenses and tags are required:
(A) Resident annual juvenile hunting license for persons 12
through 17 years of age;
(B) Resident annual juvenile angling license for persons 14
through 17 years of age;
(C) Black bear tag;
(D) Cougar tag;
(E) General season elk tag;
(F) General season deer tag;
(G) Upland bird stamp;
(H) Oregon migratory waterfowl stamp;
(I) Juvenile turkey tag;
(J) Annual tag for persons under 18 years of age to angle for
salmon, steelhead trout, sturgeon and halibut; and
(K) Resident annual shellfish license.
(b) The holder of each resident annual sportsperson's license
for persons under 18 years of age who wishes to engage in hunting
or angling activities for which permits are required that are
limited by quota must participate in the process for allocation
of the permits in the same manner as all other permit applicants.
However, if the holder of a resident annual sportsperson's
license for persons under 18 years of age is unsuccessful in
obtaining a permit limited by quota for a particular activity,
the holder will be issued a tag valid for any general season for
that species.
(c) Notwithstanding any other provision of the wildlife laws,
of the moneys received from the sale of resident annual
sportsperson's licenses for persons under 18 years of age:
(A) One dollar from each such license shall be credited to the
{ + Access and Habitat Board + } Subaccount { - referred
to - } { + described + } in ORS 496.242.
(B) One dollar from each such license shall be credited to the
subaccount { - referred to - } { + described + } in ORS
496.283.
(C) Seventy-five cents from each such license shall be credited
to the Fish Screening Subaccount established under ORS 496.303.
(D) Twenty-five cents from each such license shall be credited
to the Fish Passage Fund established under ORS 497.139.
SECTION 152. ORS 497.134 is amended to read:
497.134. (1) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } may provide a means
for persons to make voluntary contributions to be used for
special fish and wildlife management programs, including programs
to improve access for recreational angling. The commission may
seek voluntary contributions in conjunction with the sale of
hunting and angling licenses and tags or by such other means as
the commission considers appropriate.
(2) If the commission implements an electronic licensing
system, the commission shall provide a means for persons to make
voluntary contributions in conjunction with the sale of licenses
and tags referred to in ORS 497.121 (1). All such voluntary
contributions received by the commission may be expended only for
projects for which applications are made pursuant to ORS 496.450.
SECTION 153. ORS 497.136 is amended to read:
497.136. The moneys received from the fee increases prescribed
in the amendments to ORS 497.121 and 497.132 and section 4,
chapter 512, Oregon Laws 1989, and section 15, chapter 858,
Oregon Laws 1991, by sections 1 to 4, chapter 619, Oregon Laws
1993, shall be used by the { - State Department of Fish and
Wildlife - } { + Oregon Department of Natural Resources + } for
recreational fishing activities, including fish hatchery
production, freshwater fish programs, groundfish sampling, fish
research projects, Oregon State Police Game Bureau enforcement, a
name and address database, and the Hatchery Maintenance
Information System.
SECTION 154. ORS 497.139 is amended to read:
497.139. The Fish Passage Fund is established in the State
Treasury, separate and distinct from the General Fund. Interest
earned by the Fish Passage Fund shall be credited to the fund.
Moneys in the fund are continuously appropriated to the
{ - State Department of Fish and Wildlife - } { + Oregon
Department of Natural Resources + } for purposes related to fish
passage.
SECTION 155. ORS 497.142 is amended to read:
497.142. (1) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } is authorized to
issue, upon application, to persons desiring to take fur-bearing
mammals the following licenses and tags and shall charge therefor
the following fees:
(a) Resident annual license to trap or hunt fur-bearing
mammals, $45.
(b) Juvenile annual license to trap or hunt fur-bearing
mammals, $15.
(c) Resident annual license to hunt fur-bearing mammals, $20.
(d) Nonresident annual fur-takers license to trap or hunt
fur-bearing mammals, $350.
(e) Furbearer annual tags to take fur-bearing mammals, such
amount for each tag as the commission may prescribe, but not more
than $20.
(2) The tags referred to in subsection (1)(e) of this section
are in addition to and not in lieu of the licenses referred to in
subsection (1)(c) and (d) of this section.
SECTION 156. ORS 497.146 is amended to read:
497.146. (1) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + }, by rule, shall
prescribe and administer a trapper education program to provide
instruction in the proper use of trapping equipment. The program
may also include instruction on wildlife and natural resource
conservation, firearms safety, first aid and survival and such
other subjects as the commission considers desirable to promote
good outdoor conduct and respect for the rights and property of
others. The commission may cooperate and enter into agreements
with other public or private agencies and individuals in carrying
out the provisions of this section.
(2) Except as provided in subsection (3) of this section, no
person shall trap mammals with commercial fur value unless the
person has in possession a certificate issued by the commission
indicating that the person has satisfactorily completed a course
in trapper education prescribed or approved by the commission.
However, the commission shall issue the certificate
automatically, without the necessity of completing the course, to
any person who has previously held a valid trapping license
issued by the commission and who is 18 years of age or older on
July 1, 1986.
(3) The certificate referred to in subsection (2) of this
section is not required of a person to trap mammals with
commercial fur value on land owned or leased by that person or a
member of that person's immediate family.
(4) Nothing in this section is intended to prevent any person
or the persons' agent from taking mammals with commercial fur
value that are damaging livestock or agricultural crops on lands
the person owns or leases.
(5) As used in this section, 'mammals with commercial fur
value' means badger, beaver, bobcat, coyote, red fox, gray fox,
marten, mink, muskrat, nutria, opossums, raccoon, river otter,
striped skunk, spotted skunk and weasel.
SECTION 157. ORS 497.151 is amended to read:
497.151. (1) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } is authorized to
issue, upon application, to resident persons desiring to hunt
migratory waterfowl an annual migratory waterfowl stamp and shall
charge therefor a fee of $9.50.
(2) The stamp referred to in subsection (1) of this section is
in addition to and not in lieu of the hunting licenses required
by ORS 497.102.
(3) Notwithstanding subsection (1) of this section, a migratory
waterfowl stamp is not required of a person younger than 14 years
of age.
(4) ORS 497.016 to 497.026 and 497.036 apply to the stamp
referred to in subsection (1) of this section.
(5) Nothing in this section is intended to prevent nonresident
persons from purchasing resident migratory waterfowl stamps for
stamp collecting or other purposes. However, possession of a
resident migratory waterfowl stamp does not authorize a
nonresident to hunt migratory waterfowl.
SECTION 158. ORS 497.153 is amended to read:
497.153. (1) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } is authorized to
issue, upon application, to resident persons desiring to hunt
upland birds an annual upland bird stamp and shall charge
therefor a fee of $6.50.
(2) The stamp referred to in subsection (1) of this section is
in addition to and not in lieu of the hunting licenses required
by ORS 497.102.
(3) Notwithstanding subsection (1) of this section, an upland
bird stamp is not required of a person younger than 14 years of
age.
(4) ORS 497.016 to 497.026 and 497.036 apply to the stamp
referred to in subsection (1) of this section.
(5) Nothing in this section is intended to prevent nonresident
persons from purchasing resident upland bird stamps for stamp
collecting or other purposes. However, possession of a resident
upland bird stamp does not authorize a nonresident to hunt upland
birds.
SECTION 159. ORS 497.156 is amended to read:
497.156. (1) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } is authorized to
issue, upon application, to nonresident persons desiring to hunt
either migratory waterfowl or upland birds an annual
bird-waterfowl stamp and shall charge therefor a fee of $36.50.
(2) The stamp referred to in subsection (1) of this section is
in addition to and not in lieu of the hunting licenses required
by ORS 497.102.
(3) Notwithstanding subsection (1) of this section, a
bird-waterfowl stamp is not required of:
(a) A person younger than 14 years of age; or
(b) A nonresident hunter on a private hunting preserve who
holds an annual private hunting preserve permit issued under ORS
497.102.
(4) ORS 497.016 to 497.026 and 497.036 apply to the stamp
referred to in subsection (1) of this section.
SECTION 160. ORS 497.158 is amended to read:
497.158. The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } shall adopt a system
for renewing licenses issued under ORS 497.102 and 497.121
through the mail and the World Wide Web.
SECTION 161. ORS 497.162 is amended to read:
497.162. (1) Upon application of the Oregon Youth Authority,
the Oregon Health Authority or the Department of Human Services,
the { - State Fish and Wildlife Commission - } { + Oregon
Natural Resources Commission + } shall issue, without fee, a
license to angle for the temporary use of any person in a state
institution as described in ORS 179.610, any student in a youth
correction facility or related camps or programs operated by the
Oregon Youth Authority, any child placed by the Department
{ + of Human Services + } and under the care of a foster home or
a private nonprofit child-caring agency certified by the
department, or any person in an alternative to state
hospitalization program as described in ORS 430.630 (2)(b) or
(c). The licenses issued under this subsection shall be in bearer
form and, subject to applicable laws and regulations relating to
angling, shall be used as the agency applying for the license
directs.
(2) Upon application of the Department of Human Services, the
commission shall issue, without fee, a license to take shellfish
for the temporary use of any child placed by the department and
under the care of a foster home or a private nonprofit
child-caring agency certified by the department. The licenses
issued under this subsection shall be in bearer form and, subject
to applicable laws and regulations relating to taking shellfish,
shall be used as the Department { + of Human Services + }
directs.
(3) Upon application of the director of any veteran's
administration hospital or domiciliary within this state, the
commission shall issue, without fee, to each hospital or
domiciliary 30 licenses to angle or to take shellfish for the
temporary use of any person who is a patient or resident in the
hospital or domiciliary. The licenses issued under this
subsection shall be in bearer form and, subject to applicable
laws and regulations relating to angling and to taking shellfish,
shall be used as the director of the hospital or domiciliary
provides.
SECTION 162. ORS 497.170 is amended to read:
497.170. The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } shall furnish a
permanent hunting and angling license, without payment of fee, to
all Columbia River Indians who are eligible to hunt and angle
under the terms of the Treaty of 1855 between the Columbia River
Indians and the United States of America. The chief authority of
the Columbia River Indians shall furnish from time to time to the
commission a list of all Indians who have become eligible, and
shall certify under oath that the Indians named in the list are
included in the terms of the treaty.
SECTION 163. ORS 497.218 is amended to read:
497.218. (1) No person shall engage in the business of buying
the skins or pelts of any fur-bearing mammal unless the person
has first obtained from the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + } a
fur dealer license.
(2) Every fur dealer shall maintain a record of transactions
involving the skins or pelts of fur-bearing mammals. The record
shall be in such form and contain such information as the
commission, by rule, prescribes to accurately indicate the date,
type and number of skins or pelts received and the name and
address of the person with whom such transaction was made.
SECTION 164. ORS 497.228 is amended to read:
497.228. (1) No person shall engage in the business of
propagating game birds or game mammals for sale unless a wildlife
propagation license is first obtained from the { - State
Department of Fish and Wildlife - } { + Oregon Natural
Resources Commission + }.
(2) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } may refuse to issue
a license to an applicant if the commission finds that the
conduct of the wildlife propagation business would tend to be
harmful to existing wildlife populations.
(3) The commission, by rule, may prescribe requirements for the
care, inspection, transportation and the sale, taking or other
disposition of the game birds or game mammals and for such record
keeping and reporting procedures as will insure that the
propagation activities are conducted in such manner as will not
be harmful to existing wildlife populations.
SECTION 165. ORS 497.238 is amended to read:
497.238. (1) No person shall engage in the business of
taxidermy unless the person first obtains from the { - State
Fish and Wildlife Commission - } { + Oregon Natural Resources
Commission + } a taxidermist license.
(2) Every licensed taxidermist shall maintain a record of the
taxidermy work the person performs. The record shall be in such
form and contain such information as the commission, by rule,
prescribes to accurately indicate the date, type and number of
wildlife species received for taxidermy work and the name and
address of the persons from whom the wildlife species were
received.
SECTION 166. ORS 497.248 is amended to read:
497.248. (1) No person shall engage in the business of
operating a private hunting preserve for the hunting of privately
owned or propagated game birds unless the person first obtains
from the { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } a private hunting
preserve license.
(2) The commission shall issue a private hunting preserve
license to an applicant therefor if the commission finds that the
operation of the preserve will meet the following requirements:
(a) The preserve is on one continuous tract of land owned by
the applicant or leased by the applicant and contains:
(A) Not more than 640 acres, if the preserve is located in the
area west of the summit of the Cascade Mountains; or
(B) Not more than 1,280 acres, if the preserve is located in
the area east of the summit of the Cascade Mountains.
(b) The preserve is located at least one-half mile from any
other licensed private hunting preserve.
(c) No portion of the preserve is located closer than one-half
mile to any park, wilderness area, refuge or wildlife management
area operated by any agency of the state or federal government.
(d) The exterior boundaries of the preserve are clearly defined
and posted with signs erected around the extremity at intervals
of 1,320 feet or less. The signs shall comply with requirements
prescribed by the { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + }.
(e) The applicant has facilities to propagate or hold not less
than 500 of each wildlife species to be released for hunting.
(f) The applicant will not prevent or attempt to prevent public
hunting on lands adjacent to the preserve.
(3)(a) The commission, by rule, shall prescribe the time,
manner and place of hunting on private preserves, the wildlife
species to be hunted, requirements for the care and marking of
wildlife raised on the preserve, the release of wildlife received
from another state, the procedures for marking indigenous
wildlife incidentally taken on the preserve and the fees
therefor, and record keeping and reporting procedures.
(b) Pursuant to paragraph (a) of this subsection, the
commission shall:
(A) Allow private hunting preserve operators to use plastic
poultry leg bands for marking wildlife species to be released for
hunting.
(B) Allow the transportation of game birds killed on a private
hunting preserve if the birds are cleaned, wrapped, packaged and
accompanied by a transportation form from the preserve that
states the number and sex of the birds being transported.
(C) Require private hunting preserve operators to have at least
10 resident private hunting preserve permits, 10 nonresident
private hunting preserve permits and 10 wild bird seals. This
requirement shall apply to each operator, regardless of the
number of preserves operated by that person.
(4) No person shall hunt on a private hunting preserve unless
the person first obtains from the commission a hunting license or
a private hunting preserve permit.
SECTION 167. ORS 497.249 is amended to read:
497.249. (1) In addition to the penalties provided in ORS
496.992, the { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + } may revoke or
refuse to renew a license issued under ORS 497.248 if the
operator fails to comply with any provision of ORS 497.248 or any
rule adopted by the
{ - State Fish and Wildlife Commission - } { + Oregon Natural
Resources Commission + } in relation to the operation of private
hunting preserves.
(2) A new license may not be issued to a person whose license
has been revoked unless it appears to the satisfaction of the
department that the person will comply with the provisions of ORS
497.248 and the rules adopted by the commission in relation to
the operation of private hunting preserves.
(3) Notwithstanding subsection (1) of this section, the
department may not revoke a license for a first violation.
(4) Prior to revoking or refusing to renew a license, the
department shall serve written notice, in the manner prescribed
for contested case proceedings pursuant to ORS 183.415, on the
operator of the private hunting preserve, ordering the operator
to:
(a) Notify the department within 30 days of the service of the
notice if the operator seeks a review of the proposed revocation
or refusal to renew the license in the manner provided for
contested case proceedings in ORS 183.413 to 183.470; and
(b) Set forth in any notification under paragraph (a) of this
subsection the operator's reasons why the license should be
renewed or not be revoked.
(5) At the conclusion of a contested case proceeding conducted
by the department pursuant to subsection (4) of this section, an
operator may petition the commission for a review of the
determination by the department.
SECTION 168. ORS 497.252 is amended to read:
497.252. (1) Except as provided in ORS 508.700 to 508.745 and
622.220, no person shall engage in the business of propagating
game fish or food fish for sale unless a fish propagation license
is first obtained from the { - State Department of Fish and
Wildlife - } { + Oregon Natural Resources Commission + }.
(2) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } may refuse to issue
a license to an applicant if the commission finds that the
conduct of the fish propagation business would tend to be harmful
to existing game fish or food fish populations.
(3) The commission, by rule, may prescribe requirements for the
care, inspection, transportation and the sale, taking or other
disposition of the game fish or food fish, and for such record
keeping and reporting procedures as will insure that the
propagation activities are conducted in such manner as will not
be harmful to existing game fish or food fish populations.
(4) Persons propagating the following food fish under the
license prescribed in subsection (1) of this section are exempt
from the licensing provisions of ORS 508.025 and 508.035:
(a) Food fish raised entirely in, then harvested from
facilities { - which - } { + that + } are enclosed or
designed to prevent escape and from which the fish are not
released for natural rearing.
(b) Food fish harvested from the wild under licenses prescribed
in ORS 508.025 and 508.035 and on which the appropriate fee has
been paid at the time holding or rearing commences in the
licensed fish propagation facility.
(5) As used in this section, food fish has the meaning as
defined in ORS 506.011.
SECTION 169. ORS 497.258 is amended to read:
497.258. The { - State Department of Fish and Wildlife - }
{ + Oregon Natural Resources Commission + } is authorized to
issue, upon application, to persons desiring to engage in the
following occupations the following licenses and shall charge
therefor the following fees:
(1) Resident annual fur dealer license, $50.
(2) Resident annual taxidermist license, $50.
(3) Resident annual wildlife propagation license, $25.
(4) Resident annual fish propagation license, $125.
(5) Resident annual private hunting preserve license, $200.
SECTION 170. ORS 497.298 is amended to read:
497.298. (1) Any person desiring to take wildlife for
scientific purposes shall first obtain from the { - State Fish
and Wildlife Commission - } { + Oregon Natural Resources
Commission + } a scientific taking permit. The commission, by
rule, shall prescribe a procedure for applying for permits and
the form thereof, and shall prescribe the terms and conditions of
taking wildlife under the permit to insure that wildlife taken
pursuant to the permit will be used only for scientific purposes.
(2) No person who holds a scientific taking permit shall
violate any of the terms or conditions of the permit.
(3) As used in this section, 'scientific purposes' means the
study or examination of wildlife for the acquisition of knowledge
thereof.
SECTION 171. ORS 497.308 is amended to read:
497.308. (1) No person shall remove from its natural habitat or
acquire and hold in captivity any live wildlife in violation of
the wildlife laws or of any rule promulgated pursuant thereto.
(2) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } may promulgate rules
to carry out the provisions of subsection (1) of this section
that include but are not limited to:
(a) Providing for the issuance and form of permits for the
holding or removal from habitat of wildlife.
(b) Prescribing the wildlife species for which holding or
habitat removal permits are required.
(c) Prescribing the terms and conditions of holding wildlife
and removing wildlife from habitat to insure the humane care and
treatment of the wildlife.
(3) No person to whom a wildlife holding or removal from
habitat permit has been issued shall violate any of the terms or
conditions thereof.
SECTION 172. ORS 497.312 is amended to read:
497.312. (1) Any rules promulgated by the { - State Fish and
Wildlife Commission - } { + Oregon Natural Resources
Commission + } pursuant to ORS 497.308 that authorize the
acquisition and holding in captivity of a coyote must require,
among other matters:
(a) That the holder of the permit obtain for the animal rabies
inoculations;
(b) That the animal must at all times wear an identification
tag issued by the commission;
(c) That the holder of the permit notify the commission upon
the death or the sale, transfer, removal from the state or other
disposition of the animal;
(d) That the holder of the permit not abandon the animal; and
(e) That the holder of the permit cause the animal to be
neutered.
(2) The holder of a permit referred to in subsection (1) of
this section is subject to the same liability and other
requirements of ORS 609.135 to 609.190 as provided for dogs.
(3) The holder of any permit referred to in subsection (1) of
this section shall at all times be able to demonstrate to the
satisfaction of the commission that the holder has physical
custody of the animal or evidence of the death or other
disposition of the animal in compliance with the provisions of
this section and ORS 497.308.
(4) Nothing in this section or in ORS 497.308 authorizes the
acquisition and holding in captivity of any coyote not held in
captivity at the { - State Fish and Wildlife Facility - }
{ + Oregon Department of Natural Resources facility + } at
Pendleton before September 10, 1976, or held pursuant to a
scientific taking permit issued pursuant to ORS 497.298.
SECTION 173. ORS 497.318 is amended to read:
497.318. In accordance with any applicable provision of ORS
chapter 183, the { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } may revoke a permit
issued pursuant to ORS 497.298 or 497.308 if the commission
determines that the holder of the permit has violated any of the
terms or conditions thereof. Revocation of a permit is in
addition to and not in lieu of any other penalty provided by law
for violation of the terms or conditions of the permit.
SECTION 174. ORS 497.325 is amended to read:
497.325. (1) A person may not operate a fish hatchery for those
members of the family Acipenseridae, commonly known as green
sturgeon or white sturgeon, without holding a permit therefor
from the { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + }.
(2) Any permit issued pursuant to this section shall be subject
to such terms and conditions as the commission considers
appropriate to protect, perpetuate and enhance the sturgeon
population of the Columbia River and other waters of this state.
(3) The commission by rule shall specify:
(a) The number of permits under this section that may be issued
each calendar year;
(b) The method for allocating the permits; and
(c) The standards and criteria under which a permit must be
exercised.
(4) When issuing a permit under this section, the commission
may impose any additional conditions that the commission deems
necessary to ensure compliance with this section.
(5)(a) A permit issued under this section for a fish hatchery
operated for commercial purposes may not authorize the use of
green sturgeon or white sturgeon broodstock taken from the wild.
(b) The commission shall collect an annual fee of $3,000 for
any permit issued under this section that allows the artificial
propagation of green sturgeon or white sturgeon for commercial
purposes. Payment of a fee under this subsection satisfies the
payment of the fee required for a fish propagation license under
ORS 497.252.
SECTION 175. ORS 497.327 is amended to read:
497.327. When considering an application for a permit under ORS
497.325, the { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } shall, to the
greatest extent practicable, give priority to any person who
holds a permit on December 31, 2007, unless the commission finds
good cause not to give such priority.
SECTION 176. ORS 497.360 is amended to read:
497.360. (1) No person younger than 18 years of age shall hunt
wildlife, except on the person's own land or land owned by the
parent or legal guardian of the person, unless the person:
(a) Has in possession a certificate, issued by the { - State
Fish and Wildlife Commission - } { + Oregon Natural Resources
Commission + } or by an agency of another state, stating that the
person has satisfactorily completed a course prescribed or
approved by the commission in the safe handling of lawful hunting
weapons; or
(b) Is participating in a supervised hunt as provided in
subsection (3) of this section.
(2) The commission, by rule, shall prescribe and administer a
hunter safety training program to provide instruction in the safe
handling of lawful hunting weapons. The program may also include
instruction on wildlife and natural resource conservation, first
aid and survival and such other subjects as the commission
considers desirable to promote good outdoor conduct and respect
for the rights and property of others. The commission may
cooperate and enter into agreements with other public or private
agencies and individuals in carrying out the provisions of this
subsection. The Department of State Police and the Department of
Education are directed to cooperate with the commission in
carrying out the provisions of this section.
(3)(a) The commission, by rule, shall prescribe and administer
a youth hunter mentoring program that allows a person who is
between nine and 14 years of age to hunt while in the presence of
a supervisory hunter who is 21 years of age or older and who
holds the appropriate licenses, tags and permits issued pursuant
to the wildlife laws. Only one lawful hunting weapon may be
carried during a supervised hunt under this subsection. A person
participating in a supervised hunt under this subsection may hunt
wildlife under the same conditions applicable to the supervisory
hunter's licenses, tags and permits.
(b) The commission, by rule, may prescribe any relevant safety
and ethical standards for participation in a supervised hunt
under this subsection.
SECTION 177. ORS 497.400 is amended to read:
497.400. No person shall:
(1) Apply for, obtain or possess for personal use or for the
use of any other person more licenses, tags or permits issued by
the { - State Fish and Wildlife Commission - } { + Oregon
Natural Resources Commission + } than are authorized for personal
use during the current year by the wildlife laws and rules
promulgated pursuant thereto.
(2) Alter, borrow, loan or transfer to another person any
license, tag or permit issued by the commission.
(3) In applying for a license, tag or permit issued by the
commission, knowingly make any false statement of any information
required by the application regarding the person in whose name
the license, tag or permit is to be issued.
(4) Possess any license, tag or permit that has been altered,
borrowed, loaned or transferred or for which any false statements
were knowingly made in applying therefor.
(5) Apply for or obtain any license, tag or permit issued by
the commission when civil damages due pursuant to ORS 496.705 or
when moneys due the { - State Department of Fish and
Wildlife - } { + Oregon Department of Natural Resources + }
from court-ordered restitutions for violations of the wildlife
laws have not been paid.
SECTION 178. ORS 497.415, as amended by section 1, chapter 58,
Oregon Laws 2010, is amended to read:
497.415. (1) When any person is convicted of a violation of law
or any rule adopted pursuant thereto or otherwise fails to comply
with the requirements of a citation in connection with such
violation as provided in subsection (2) of this section, the
court may order the { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } to revoke all
licenses, tags and permits issued to that person pursuant to the
wildlife laws. Revocation of licenses, tags and permits is in
addition to and not in lieu of other penalties provided by law.
(2) The license, tag and permit revocation provisions of
subsection (1) of this section apply to the following persons:
(a) Any person who is convicted of a violation of the wildlife
laws, or any rule adopted pursuant thereto, or who otherwise
fails to comply with the requirements of a citation in connection
with any such offense when the base fine amount for the offense
is $50 or more.
(b) Any person who is convicted of a violation of ORS 164.245,
164.255, 164.265, 164.345, 164.354 or 164.365 committed while the
person was angling, taking shellfish, hunting or trapping or who
otherwise fails to comply with the requirements of a citation in
connection with any such offense when the base fine amount for
the offense is $50 or more.
(c) Any person who is convicted of a violation of ORS 166.630
or 166.638 committed while hunting or who otherwise fails to
comply with the requirements of a citation in connection with any
such offense when the base fine amount for the offense is $50 or
more.
(3) When a court orders the revocation of a license, tag or
permit pursuant to this section, the court shall take up any such
licenses, tags and permits and forward them, together with a copy
of the revocation order, to the commission. Upon receipt thereof,
the commission shall cause revocation of the appropriate
licenses, tags and permits in accordance with the court order.
(4) For purposes of the Wildlife Violator Compact:
(a) The commission shall suspend a violator's license as
defined in ORS 496.750 for failure to comply with the terms of a
citation from a party state. A copy of a report of failure to
comply from the licensing authority of the issuing state shall be
conclusive evidence. Suspension under this paragraph commences on
the date the commission issues a final order pursuant to the
provisions of ORS chapter 183 to suspend the license in this
state. The period of suspension under this paragraph is the
period provided by Oregon law or such longer period as provided
by commission rule based on the period of suspension imposed by
the party state.
(b) The commission shall revoke a violator's license as defined
in ORS 496.750 for a conviction in a party state. A report of
conviction from the licensing authority of the issuing state
shall be conclusive evidence. Revocation under this paragraph
commences on the date the commission issues a final order
pursuant to the provisions of ORS chapter 183 to revoke the
license in this state. The period of revocation under this
paragraph is the period provided by Oregon law or such longer
period as provided by commission rule based on the period of
revocation imposed by the party state.
(5)(a) No person who has had a license, tag or permit revoked
pursuant to this section for the first time shall apply for or
obtain another such license, tag or permit for the period of 36
months from the date the court or commission ordered the
revocation.
(b) Upon having a license, tag or permit revoked for a second
time pursuant to this section, no person shall apply for or
obtain another such license, tag or permit for the period of five
years.
(c) Upon having a license, tag or permit revoked for a third or
subsequent time pursuant to this section, a person is prohibited
from applying for or obtaining another such license, tag or
permit.
(6)(a) If a person convicted of conduct described in subsection
(2) of this section does not possess at the time of conviction
those licenses, tags and permits issued pursuant to the wildlife
laws that the court would have revoked pursuant to this section,
the court shall specify by order those licenses, tags and permits
that would have been revoked and shall forward a copy of the
order to the commission. No person who is the subject of such a
court order shall apply for, possess or obtain another such
license, tag or permit for the period of 36 months from the date
of the order.
(b) Upon being the subject of a court order under this
subsection for a second time, no person shall apply for or obtain
another such license, tag or permit for the period of five years.
(c) Upon being the subject of a court order under this
subsection for a third time, a person is prohibited from applying
for or obtaining another such license, tag or permit.
SECTION 179. ORS 498.006 is amended to read:
498.006. Except as the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + } by
rule may provide otherwise, no person shall chase, harass,
molest, worry or disturb any wildlife except while engaged in
lawfully angling for, taking, hunting or trapping such wildlife.
SECTION 180. ORS 498.012 is amended to read:
498.012. (1) Nothing in the wildlife laws is intended to
prevent any person from taking any wildlife that is causing
damage, is a public nuisance or poses a public health risk on
land that the person owns or lawfully occupies. However, no
person shall take, pursuant to this subsection, at a time or
under circumstances when such taking is prohibited by the
{ - State Fish and Wildlife Commission - } { + Oregon Natural
Resources Commission + }, any game mammal or game bird,
fur-bearing mammal or nongame wildlife species, unless the person
first obtains a permit for such taking from the commission.
(2)(a) Nothing in subsection (1) of this section requires a
permit for the taking of cougar, bobcat, red fox or bear pursuant
to that subsection. However, any person who takes a cougar,
bobcat, red fox or bear must have in possession written authority
therefor from the landowner or lawful occupant of the land that
complies with subsection (4) of this section.
(b) Nothing in subsection (1) of this section requires the
commission to issue a permit for the taking of any wildlife
species for which a U. S. Fish and Wildlife Service permit is
required pursuant to the Migratory Bird Treaty Act (16 U.S.C.
703 to 711), as amended.
(3) Any person who takes, pursuant to subsection (1) of this
section, any cougar, bobcat, red fox, bear, game mammal, game
bird, fur-bearing mammal or wildlife species whose survival the
commission determines is endangered shall immediately report the
taking to a person authorized to enforce the wildlife laws, and
shall dispose of the wildlife in such manner as the commission
directs. In determining procedures for disposal of bear and
cougar, the commission shall direct the { - State Department of
Fish and Wildlife - } { + Oregon Department of Natural
Resources + } to first offer the animal to the landowner
incurring the damage.
(4) The written authority from the landowner or lawful occupant
of the land required by subsection (2) of this section for the
taking of cougar, bobcat, red fox or bear must set forth all of
the following:
(a) The date of issuance of the authorization;
(b) The name, address, telephone number and signature of the
person granting the authorization;
(c) The name, address and telephone number of the person to
whom the authorization is granted;
(d) The wildlife damage control activities to be conducted,
whether for bear, cougar, red fox or bobcat; and
(e) The expiration date of the authorization, which shall be
not later than one year from the date of issuance of the
authorization.
(5) Any regional office of the { - State Department of Fish
and Wildlife - } { + department + } ordering the disposal of an
animal under subsection (3) of this section shall file a report
with the { - State Fish and Wildlife Director - }
{ + Director of the Oregon Department of Natural Resources + }
within 30 days after the disposal. The report shall include but
need not be limited to the loss incurred, the financial impact
and the disposition of the animal. The director shall compile all
reports received under this subsection on a bimonthly basis. The
reports compiled by the director shall be available to the public
upon request.
(6) As used in this section:
(a) 'Damage' means loss of or harm inflicted on land, livestock
or agricultural or forest crops.
(b) 'Nongame wildlife' has the meaning given that term in ORS
496.375.
(c) 'Public nuisance' means loss of or harm inflicted on
gardens, ornamental plants, ornamental trees, pets, vehicles,
boats, structures or other personal property.
SECTION 181. ORS 498.016 is amended to read:
498.016. Nothing in the wildlife laws is intended to prohibit
any person from killing any crippled or helpless wildlife when
the killing is done for a humane purpose. Any person so killing
any wildlife shall immediately report such killing to a person
authorized to enforce the wildlife laws, and shall dispose of the
wildlife in such manner as the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + }
directs.
SECTION 182. ORS 498.019 is amended to read:
498.019. (1) If the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + },
pursuant to its authority under ORS 498.022, establishes a
license for the purchase of deer, elk and antelope hides and
antlers, any person holding such license shall also be authorized
to purchase, sell or exchange, or offer to purchase, sell or
exchange, the hooves, dewclaws and sinews of deer, elk and
antelope.
(2) A licensee under subsection (1) of this section shall
maintain a record of transactions involving specimens of deer,
elk or antelope. The record shall be in such form and contain
such information as the commission, by rule, prescribes to
accurately indicate the date, type and number of specimens
received and the name and address of the person with whom such
transaction was made.
SECTION 183. ORS 498.022 is amended to read:
498.022. Except as the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + } by
rule may provide otherwise, no person shall purchase, sell or
exchange, or offer to purchase, sell or exchange any wildlife, or
any part thereof.
SECTION 184. ORS 498.029 is amended to read:
498.029. (1) No person shall offer for sale, trade, barter or
exchange as a household pet any fox, skunk or raccoon.
(2) An animal specified in subsection (1) of this section may
be offered for sale, trade, barter or exchange to a public park,
zoo, museum or educational institution for educational, medical,
scientific or exhibition purposes if the organization possesses a
permit from the { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + }. The commission may
refuse to issue a permit if the commission finds that the
organization requesting the permit does not have physical
facilities adequate to maintain the animal in health and safety
and to prevent the escape of the animal from confinement.
SECTION 185. ORS 498.036 is amended to read:
498.036. Except as the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + } by
rule may provide otherwise, no person shall possess in the field
or forest, or in transit from the field or forest, the carcass of
any wildlife that has been skinned, plucked or mutilated in any
manner so that the sex, size or species of the wildlife cannot be
determined.
SECTION 186. ORS 498.042 is amended to read:
498.042. (1) No person shall remove from the carcass of any
game mammal or game bird, the head, antlers, horns, hide or
plumage, and utilize only those parts so removed, except:
(a) When engaged in lawful trapping activities.
(b) When utilizing those game mammals or game birds that the
{ - State Fish and Wildlife Commission - } { + Oregon Natural
Resources Commission + } by rule declares to be inedible.
(2) No person shall waste any edible portion of any game
mammal, game bird or game fish or the pelt of any fur-bearing
mammal.
SECTION 187. ORS 498.052 is amended to read:
498.052. No person shall release within this state any
domestically raised wildlife or wildlife brought to this state
from any place outside this state unless the person first obtains
a permit therefor from the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + }.
SECTION 188. ORS 498.106 is amended to read:
498.106. Competitive field trials for hunting dogs may be held
at such times and places and under such conditions as the
{ - State Fish and Wildlife Commission - } { + Oregon Natural
Resources Commission + } may prescribe by rule.
SECTION 189. ORS 498.126 is amended to read:
498.126. (1) A person may not:
(a) Hunt game mammals or game birds from or with the aid of an
aircraft.
(b) Transmit from an aircraft to a person not in the aircraft
information regarding the location of any game mammals or game
birds.
(c) Otherwise use an aircraft to assist another person in
hunting or locating game mammals or game birds for the purpose of
hunting.
(2) A person may not hunt any game mammal within eight hours
after having been transported by aircraft to or from any place
other than a recognized airport that the Oregon Department of
Aviation has licensed as a public use airport, registered as a
personal use airport or specifically exempted from licensing or
registration.
(3) Every pilot shall maintain a log book that shows the names
and addresses of record of the persons transported, point of
departure, point of destination, time and date of each flight
that the pilot makes in an aircraft within this state to
transport a person to or from any place to hunt. The log book is
subject to inspection by any person authorized to enforce the
wildlife laws.
(4)(a) Notwithstanding subsections (1) to (3) of this section,
and except as provided in subsection (5) of this section, the
{ - State Department of Fish and Wildlife - } { + Oregon
Department of Natural Resources + }, or its agents, may conduct
wildlife management activities necessary for scientific research
or, in emergency situations, to protect human safety, wildlife
species or property by:
(A) Hunting game mammals or game birds from or with the aid of
an aircraft; or
(B) Transmitting from an aircraft information regarding the
location of any game mammal or game bird.
(b) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } shall define by rule
the terms 'emergency situations' and 'necessary' for purposes of
implementation of this section.
(5) If the definition of 'game mammal' in ORS 496.004 is
modified to include wolves, then the department may conduct wolf
management activities under this section only under a statewide
wolf management plan adopted by the commission.
SECTION 190. ORS 498.136 is amended to read:
498.136. (1) Except as provided in subsection (2) of this
section, a person may not hunt wildlife from a motor-propelled
vehicle.
(2) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + }, by rule, may
authorize hunting from a motor-propelled vehicle by a person with
a disability or for the purpose of alleviating damage by wildlife
to other resources.
(3)(a) Nothing in the wildlife laws, or rules adopted pursuant
thereto, is intended to prohibit the companion of a person with a
disability who is lawfully hunting from a motor-propelled vehicle
from killing an animal wounded by the person and applying to the
animal the tag issued to the person for the taking of the animal,
even if the companion has already validated any tag required for
the taking of such an animal.
(b) For purposes of this subsection, 'companion' means a person
who does not have a disability.
SECTION 191. ORS 498.142 is amended to read:
498.142. (1) Except as provided in subsection (2) of this
section, no person shall hunt wildlife with the aid of any
artificial light.
(2) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + }, by rule, may
authorize hunting with the aid of an artificial light for the
purpose of taking raccoon, opossum or bobcat or to alleviate
damage by wildlife to other resources.
SECTION 192. ORS 498.152 is amended to read:
498.152. (1) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } may enter into
agreements with the owners or lawful possessors of land to
restrict the operation or parking of motor-propelled vehicles on
the land when the commission determines that such operation or
parking is damaging wildlife or wildlife habitat.
(2) An agreement shall restrict the types and uses of
motor-propelled vehicles on the land and shall specify the times
and places that such restrictions apply.
(3) The commission shall cause notice of the restrictions,
including the effective date thereof, to be posted on the main
traveled roads entering the area to which the restrictions apply.
(4) Nothing in this section authorizes the establishment of any
restrictions that impede normal forest or range management
operations.
SECTION 193. ORS 498.158 is amended to read:
498.158. (1) Except as provided in ORS 448.305 and in
subsection (2) of this section, no person shall hunt or trap any
wildlife within the boundaries of any city, public park, cemetery
or on any school lands.
(2) No hunting or trapping shall be allowed on any lands within
the boundaries of any city, public park or on any school lands
unless:
(a) The governing body or other agency that administers the
affairs of the city, public park or school, after notice and
hearing, authorizes such hunting or trapping by ordinance or
resolution; and
(b) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + }, after notice and
hearing, determines that such hunting or trapping would not
adversely affect public safety or unreasonably interfere with
other authorized uses of such lands.
SECTION 194. ORS 498.164 is amended to read:
498.164. (1) Except as provided in subsections (2) to (4) of
this section, a person may not use bait to attract or take black
bears or use one or more dogs to hunt or pursue black bears or
cougars.
(2) Nothing in subsection (1) of this section prohibits the use
of bait or one or more dogs by employees or agents of county,
state or federal agencies while acting in their official
capacities.
(3)(a) As allowed by subsection (2) of this section, the
{ - State Department of Fish and Wildlife - } { + Oregon
Department of Natural Resources + } is authorized to appoint
persons to act as agents for the department for the purpose of
using one or more dogs to hunt or pursue black bears or cougars.
Such hunt or pursuit must be in compliance with any black bear
management plan and any cougar management plan adopted by rule by
the { - State Fish and Wildlife Commission - } { + Oregon
Natural Resources Commission + }. An agent acts on the
department's behalf and, subject to the department's direction
and control, implements specific management programs of the
department. An agent may not engage in any other hunting or
pursuit while acting on the department's behalf.
(b) The department shall:
(A) Make the appointment in written form; and
(B) Ensure that the written appointment is available to the
public for review at the main office of the department in Salem.
(c) Upon appointment of an agent by the department, the
department shall fix the compensation of the agent and prescribe
the duties of the agent. The authority of the agent to act shall
be limited to the terms set forth in the written appointment
under paragraph (b) of this subsection.
(d) The commission shall adopt by rule a process and criteria
for selecting and training persons to act as agents pursuant to
paragraph (a) of this subsection. The process and criteria shall
include, but are not limited to, the qualifications and training
for agents and are to cover any guidelines, policies or codes of
conduct of the department regarding firearms, first aid,
all-terrain vehicles and snowmobiles and the use of alcohol or
drugs. The department may also require fingerprints as specified
in { - ORS 496.121 - } { + section 9 of this 2011 Act + } for
the purpose of requesting state or nationwide criminal records
checks.
(4) Nothing in subsection (1) of this section prohibits the use
of bait or dogs by persons for the taking of black bears or
cougars in accordance with the provisions of ORS 498.012 relating
to taking wildlife that is causing damage.
(5) Any person who violates subsection (1) of this section
commits a Class A misdemeanor and, upon conviction, shall in
addition to appropriate criminal penalties have his or her
privilege to apply for any hunting license suspended for a period
of five years for a first offense and permanently suspended for
any subsequent offense.
(6) For the purposes of this section, 'bait' means any material
placed for the purpose of attracting or attempting to attract
bears.
SECTION 195. ORS 498.166 is amended to read:
498.166. (1) Notwithstanding the licensing and tag requirements
of ORS 497.102 and 497.112, a person may take a cougar or bear
that poses a threat to human safety.
(2) Any person who takes a cougar or bear pursuant to
subsection (1) of this section shall immediately report the
taking to a person authorized to enforce the wildlife laws and
shall dispose of the animal in such manner as the { - State
Fish and Wildlife Commission - } { + Oregon Natural Resources
Commission + } directs.
(3) Any regional office of the { - State Department of Fish
and Wildlife - } { + Oregon Department of Natural Resources + }
ordering the disposal of an animal under subsection (2) of this
section shall file a report with the { - State Fish and
Wildlife Director - } { + Director of the Oregon Department of
Natural Resources + } within 30 days after the disposal. The
report shall include but need not be limited to the disposition
of the animal, the events leading to the taking of the animal and
any injury caused by the animal to humans or domesticated
animals. The director shall compile all reports received under
this subsection on a bimonthly basis. The reports compiled by the
director shall be available to the public upon request.
(4) As used in this section:
(a) 'Structure' includes a building being used as a residence,
a building located on land actively used for agricultural, timber
management, ranching or construction purposes or a building used
as part of a business.
(b) 'Threat to human safety' means the exhibition by a cougar
or bear of one or more of the following behaviors:
(A) Aggressive actions directed toward a person or persons,
including but not limited to charging, false charging, growling,
teeth popping and snarling.
(B) Breaking into, or attempting to break into, a residence.
(C) Attacking a pet or domestic animal as defined in ORS
167.310.
(D) Loss of wariness of humans, displayed through repeated
sightings of the animal during the day near a permanent
structure, permanent corral or mobile dwelling used by humans at
an agricultural, timber management, ranching or construction
site.
SECTION 196. ORS 498.170 is amended to read:
498.170. (1) A person who does not have a visual impairment and
who accompanies a hunter who possesses a visually impaired hunter
license may:
(a) Assist the hunter in selecting a game animal or bird;
(b) Assist the aiming or sighting of a firearm;
(c) Advise the hunter when to fire a firearm;
(d) Shoot a game animal or bird on behalf of the hunter while
in the immediate presence of the hunter; and
(e) Tag and retrieve game animals and birds on behalf of the
hunter.
(2) The person accompanying a hunter who has a visual
impairment shall be required to possess a valid hunting license.
The person accompanying a hunter who has a visual impairment may
also hunt game animals or birds if the person possesses the
appropriate tags, permits and stamps for the area and time
period.
(3) A hunter who possesses a visually impaired hunter license
must comply with all other tag, permit and stamp requirements of
the { - State Fish and Wildlife Commission - } { + Oregon
Natural Resources Commission + } and applicable hunting laws.
(4) As used in this section, 'hunter who has a visual
impairment' means a person who files proof with the commission
that the person's central visual acuity does not exceed 20/200 in
the better eye with best correction or that the person's visual
acuity, if better than 20/200, is accompanied by a limit to the
field of vision to such a degree that its widest diameter
subtends an angle of no greater than 20 degrees.
SECTION 197. ORS 498.180 is amended to read:
498.180. (1) A person may not offer for sale or sell a hunt for
feral swine on public or private lands.
(2) Violation of subsection (1) of this section is a Class A
misdemeanor. A person may not be convicted under this subsection
if a civil penalty has been imposed against the person under
subsection (3) of this section.
(3)(a) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } may impose a civil
penalty of $1,000 for a violation of subsection (1) of this
section.
(b) Civil penalties described in this subsection shall be
imposed in the manner provided in ORS 183.745. A civil penalty
may not be imposed against a person under this subsection if the
person has been convicted under subsection (2) of this section.
(4) Notwithstanding ORS 497.415 (1), (2), (3) and (5) and in
addition to any criminal penalty or civil penalty imposed under
this section, when a person is convicted under subsection (2) of
this section or a civil penalty is imposed under subsection (3)
of this section, the commission shall revoke all hunting
licenses, tags and permits issued to the person under the
wildlife laws, and the person may not apply for or obtain any
hunting license, tag or permit for a period of 24 months after
the conviction or imposition of the civil penalty.
SECTION 198. ORS 498.182 is amended to read:
498.182. (1) A person, or an employee of that person who acts
as a land manager, may not knowingly, as defined in ORS 161.085,
allow feral swine to roam on land owned or controlled by that
person.
(2) A person, or an employee of that person who acts as a land
manager, shall take action in a manner consistent with rules
adopted by the { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } to remove any feral
swine that roams on land owned or controlled by that person if
the person or employee knows that feral swine roam on land owned
or controlled by that person. ORS 497.075 does not apply to this
subsection.
(3) A person, or an employee of that person who acts as a land
manager, shall, within 10 days after discovering feral swine on
land owned or controlled by that person, inform the { - State
Department of Fish and Wildlife - } { + Oregon Department of
Natural Resources + } about the feral swine.
SECTION 199. ORS 498.208 is amended to read:
498.208. (1) Except as the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + } by
rule may provide otherwise, no person shall:
(a) Use in any body of water any electric current that may
attract, frighten, retard, stun, kill or obstruct the movement of
any game fish.
(b) Place in any body of water any foreign substance such as
blood or fish offal or any gas, chemical, drug or powder that may
attract, frighten, retard, stun, kill or obstruct the movement of
any game fish.
(c) Use in any body of water any explosive device for the
purpose of taking game fish.
(2) No person shall possess any game fish that the person knows
or has reason to know was taken in violation of subsection (1) of
this section.
SECTION 200. ORS 498.216 is amended to read:
498.216. Except as the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + } by
rule may provide otherwise, no person shall trespass upon or
angle from any fishway or angle within an area of a body of water
bounded by a line extending across the body of water 200 feet
above the upper end of a fishway and a line across the body of
water 200 feet below the lower end of a fishway.
SECTION 201. ORS 498.222 is amended to read:
498.222. (1) No person shall:
(a) Transport any live fish unless the person has first
obtained a permit therefor from the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + }.
(b) Release or attempt to release into any body of water any
live fish that was not taken from that body of water, unless the
person has first obtained a permit therefor from the commission.
(2) The commission may refuse to issue the permit referred to
in subsection (1)(b) of this section if the commission finds that
release of the fish into a body of water would adversely affect
existing fish populations.
(3) Subsection (1)(a) of this section does not apply to live
fish that are for aquaria use.
(4) Notwithstanding ORS 496.992, violation of subsection (1)(b)
of this section is:
(a) A Class C felony if the violation is committed
intentionally or knowingly.
(b) A Class A misdemeanor if the violation is committed
recklessly or with criminal negligence.
(5)(a) Notwithstanding ORS 497.415 (1), (2), (3) and (5), when
a person is convicted of violating subsection (1)(b) of this
section, the court in which the conviction occurs shall notify
the commission, which shall revoke all angling licenses and tags
issued to that person pursuant to the wildlife laws. Revocation
of licenses and tags is in addition to and not in lieu of other
penalties provided by law.
(b) No person who has been convicted of violating subsection
(1)(b) of this section shall apply for, obtain or possess any
angling license or tag issued pursuant to the wildlife laws
within five years after the conviction.
(6)(a) The commission may institute suit for the recovery of
damages for the control or eradication of live fish released into
a body of water in violation of subsection (1)(b) of this
section. The damages awarded under this subsection shall be the
amount necessary to return the body of water to its condition
prior to the violation.
(b) In any action under this subsection, the court shall award
to the prevailing party, in addition to costs and disbursements,
reasonable attorney fees.
(c) Damages awarded under this subsection shall be in addition
to other penalties prescribed by the wildlife laws for releasing
or attempting to release live fish without a permit.
(d) Any circuit or justice court has jurisdiction to try any
case for the recovery of damages as provided by this subsection.
SECTION 202. ORS 498.234 is amended to read:
498.234. (1) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } shall, by rule,
establish a program to protect all finfish and shellfish in
waters of this state, both public and private, from infection by
the introduction of detrimental fish diseases.
(2) Rules adopted under subsection (1) of this section shall
not apply to live aquaria species imported or transported for
aquaria use unless those species are reared in facilities from
which effluent directly enters waters of this state.
(3) The requirements of subsection (1) of this section are in
addition to any other requirement of law, or rule promulgated
pursuant thereto, regarding the importation into this state of
live game fish or game fish eggs.
SECTION 203. ORS 498.242 is amended to read:
498.242. (1) Except as provided in subsections (2) and (3) of
this section, no person shall possess any live fish of the
various species:
(a) Of the family Clariidae, commonly known as walking catfish;
or
(b) Of the subfamily Serrasalminae of the family Characidae,
commonly known as caribe or piranha.
(2) A public park, zoo, museum or educational institution may
possess any of the fish referred to in subsection (1) of this
section for educational, medical, scientific or exhibition
purposes if the organization first obtains a permit from the
{ - State Fish and Wildlife Commission - } { + Oregon Natural
Resources Commission + }. The commission may refuse to issue the
permit if the commission finds that the organization requesting
the permit has physical facilities for holding the fish that are
inadequate to prevent their escape from confinement.
(3) Subsections (1) and (2) of this section do not prohibit the
possession or require a permit for the possession of live fish
that are of the genera Pygocentrus, Serrasalmus or Pristobrycon
that are carnivorous fish in the subfamily Serrasalminae, from
the family Characidae, commonly known as piranha or caribe.
SECTION 204. ORS 498.247 is amended to read:
498.247. (1) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } shall issue not more
than three permits annually for activities involving the
protection of juvenile salmonids from cormorants
(Phalacrocoracidae) on Oregon coastal river systems between Cape
Falcon and Cascade Head.
(2) Activities authorized under the permits shall not include
the killing, trapping or other taking of cormorants.
(3) Persons to whom permits are issued may subcontract with
others for the performance of protection activities.
SECTION 205. ORS 498.279 is amended to read:
498.279. (1) A person, or group of persons, may conduct,
sponsor and participate in any competition or contest in which
prizes are offered for the amount, quality, size, weight or other
physical characteristics of black bass or walleye, provided that
the rules of a competition or contest are prepared and
distributed by the sponsors to the contestants and are
administered and enforced by the sponsors. Such rules shall
include, but are not limited to:
(a) A requirement that the contestants use aerated live wells
or other equipment so that all reasonable efforts are made to
maintain the fish taken in a live and healthy condition.
(b) A requirement that all fish caught that are in a healthy
condition are immediately returned to the water where they were
caught, after weighing. Black bass may be turned over to the
{ - State Department of Fish and Wildlife - } { + Oregon
Department of Natural Resources + } for restocking.
(c) A requirement that bass tournament contestants use only
artificial or other such prepared baits.
(2) As used in this section, 'black bass' means largemouth
bass, smallmouth bass, redeye bass, spotted bass and all other
basses of the genus Micropterus.
(3) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } may adopt rules to
limit the number of contests and participants, determine the
location of contests and prescribe other terms and conditions
regarding the conduct of contests under this section.
SECTION 206. ORS 498.286 is amended to read:
498.286. (1) Except as provided in subsection (2) of this
section and ORS 498.279, no person shall conduct, sponsor or
participate in any competition or contest in which any prize of a
retail value of more than $1,000 is offered for the amount,
quality, size, weight or other physical characteristic of game
fish taken.
(2) When a prize is offered that exceeds $1,000 for the amount,
quality, size, weight or other physical characteristic of a game
fish taken, the { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + }, by rule, may limit
the number of contests and participants, determine the location
of contests and prescribe other terms and conditions regarding
the conduct of contests.
SECTION 207. ORS 498.301 is amended to read:
498.301. It is the policy of the State of Oregon to prevent
appreciable damage to game fish populations or populations of
nongame fish that are classified as sensitive species, threatened
species or endangered species by the { - State Fish and
Wildlife Commission - } { + Oregon Natural Resources
Commission + } as the result of the diversion of water for
nonhydroelectric purposes from any body of water in this state.
SECTION 208. ORS 498.306 is amended to read:
498.306. (1) Any person who diverts water from any body of
water in this state in which any fish, subject to the { - State
Fish and Wildlife Commission's - } { + Oregon Natural Resources
Commission's + } regulatory jurisdiction, exist may be required
to install, operate and maintain screening or by-pass devices to
provide adequate protection for fish populations present at the
water diversion in accordance with the provisions of this
section.
(2)(a) The { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + } shall establish a
cost-sharing program to implement the installation of screening
or by-pass devices on not less than 150 water diversions or 150
cubic feet per second of diverted water per biennium. The
department shall select the water diversions to be screened from
the priority listing of diversions established by the department
and reviewed by the Fish Screening Task Force. The installation
of a screening or by-pass device may be required only if:
(A) The water diversion is 30 cubic feet per second or more;
(B) A new water right is issued for the water diversion;
(C) The point of water diversion is transferred as described in
ORS 540.525;
(D) Fewer than 150 persons per biennium volunteer to request
such installation on the diversions for which they are
responsible; or
(E) The Fish Screening Task Force has reviewed and approved the
department's request to require installation of screening or
by-pass devices in order to complete the screening of a stream
system or stream reach.
(b) The limitations on the number of diversions or cubic feet
per second of diverted water to be screened as provided in this
section do not prevent the installation of screening and by-pass
devices for diversions by persons responsible for diversions who
are willing to pay the full cost of installing screening and
by-pass devices.
(c) Cost-sharing program funds may not be provided under this
subsection for screening or by-pass devices on a water diversion
involving water rights issued on or after January 1, 1996, unless
the Fish Screening Task Force finds there is good cause to allow
an exception. The department shall give preference to diversions
of 30 cubic feet per second or less when making cost-sharing
program funds available.
(3) When selecting diversions to be equipped with screening or
by-pass devices, the department shall attempt to solicit persons
who may volunteer to request the installation of such devices on
the diversions for which they are responsible. When selecting
diversions to be equipped with screening or by-pass devices, the
department shall select those diversions that will provide
protection to the greatest number of indigenous naturally
spawning fish possible.
(4) If the department constructs and installs the screening or
by-pass device, a fee shall be assessed against the person
responsible for the diversion in an amount that does not exceed
40 percent of the construction and installation costs of the
device. The fee shall be paid into the Fish Screening
Subaccount. If the person responsible for the diversion
constructs and installs the by-pass or screening device, the
person shall be reimbursed from the Fish Screening Subaccount or
other state funds in an amount that does not exceed 60 percent of
the actual construction and installation costs of the device.
(5) The department's cost of major maintenance and repair of
screening or by-pass devices shall be paid from the Fish
Screening Subaccount.
(6) The department is responsible for major maintenance and
repair of screening or by-pass devices at water diversions of
less than 30 cubic feet per second, and if failure by the
department to perform major maintenance on or repair such devices
results in damage or blockage to the water diversion on which a
device has been installed, the person responsible for the water
diversion shall give written notice of such damage or blockage to
the department. If within seven days of the notice, the
department fails to take appropriate action to perform major
maintenance on or repair the device, and to repair any damage
that has occurred, the person responsible for the water diversion
may remove the device. If an emergency exists that will result in
immediate damage to livestock or crops, the person responsible
for the water diversion may remove the screening or by-pass
device. A person required to comply with this section is
responsible for minor maintenance and shall, in a timely manner,
notify the department of the need for activities associated with
major maintenance.
(7) A person who diverts water at a rate of 30 cubic feet per
second or more is responsible for all maintenance of an installed
screening or by-pass device.
(8) A person required to comply with this section may design,
construct and install screening or by-pass devices adequate to
prevent fish from leaving the body of water and entering the
diversion or may request the department to design, construct and
install such devices. However, if a person required to comply
with this section fails to comply within 180 days after notice to
comply by the department, the department shall design, install,
operate and maintain on that person's water diversion appropriate
screening or by-pass devices and shall charge and collect from
the person the actual costs thereof in an amount not to exceed
the average cost for diversions of that size.
(9) If the diversion requiring screening or by-pass devices is
located on public property, the department shall obtain from the
property owner approval or permits necessary for such devices.
Activities of the department pursuant to this section may not
interfere with existing rights of way or easements of the person
responsible for the diversion.
(10)(a) The department or its agent has the right of ingress
and egress to and from those places where screening or by-pass
devices are required, doing no unnecessary injury to the property
of the landowner, for the purpose of designing, installing,
inspecting, performing major maintenance on or repairing such
devices.
(b) If a screening or by-pass device installed by the
department must be removed or replaced due to inadequate design
or faulty construction, the person responsible for the diversion
shall bear no financial responsibility for its replacement or
reconstruction.
(c) If a screening or by-pass device installed by the person
responsible for the diversion must be removed or replaced due to
faulty construction, the person shall bear full financial
responsibility for its replacement or reconstruction.
(d) If the person responsible for a diversion on which a
screening or by-pass device is installed fails to conduct
appropriate inspection and minor maintenance, the department may
perform such activities and charge and collect from the person
responsible a fee not to exceed $150 for each required visit to
the location of the screening or by-pass device.
(e) If the department determines that a person must install,
operate, maintain, repair or replace a screening or by-pass
device under this section, the department shall notify the
person, by registered mail, of the specific action the person is
required to take. The person may request a contested case hearing
before the
{ - State Fish and Wildlife Commission - }
{ + commission + }, to be conducted as provided in ORS chapter
183.
(11) A person may not interfere with, tamper with, damage,
destroy or remove in any manner not associated with regular and
necessary maintenance procedures any screening or by-pass devices
installed pursuant to this section.
(12) The department may maintain an action to cover any costs
incurred by the department when a person who is required to
comply with this section fails to comply. Such action shall be
brought in the circuit court for the county in which the
screening or by-pass device is located.
(13) Upon receiving notice from the department to comply with
this section, a person responsible for a water diversion may be
excused from compliance if the person demonstrates to the Fish
Screening Task Force that:
(a) The installation and operation of screening or by-pass
devices would not prevent appreciable damage to the fish
populations in the body of water from which water is being
diverted.
(b) Installation and operation of screening or by-pass devices
would not be technically feasible.
(c) Installation of screening or by-pass devices would result
in undue financial hardship.
(14)(a) Not later than January 1, 1996, the department, with
the assistance of the Fish Screening Task Force { - and the
Water Resources Department - } , shall establish and publish an
updated priority listing of 3,500 water diversions in the state
that should be equipped with screening or by-pass devices.
Changes may be made to the list whenever deletions are made for
any reason. The priority listing shall include the name and
address of the person currently responsible for the water
diversion, the location of the diversion, size of the diversion,
type of screening or by-pass device required, estimated costs for
construction and installation of screening or by-pass devices for
the individual diversion and species of fish present in the water
body. When developing the priority listing, the department shall
base priorities for the installation of screening or by-pass
devices on unscreened diversions on the following criteria:
(A) Fish species status.
(B) Fish numbers.
(C) Fish migration.
(D) Diversion size.
(E) Diversion amount.
(F) Any other criteria that the department, in consultation
with the Fish Screening Task Force, considers appropriate.
(b) Criteria identified in this subsection shall be given
appropriate consideration by the department when updating its
priority listing. The priority listing will be updated to give
the highest priority to those diversions that save the greatest
number of fish and simultaneously protect the greatest number of
threatened or endangered fish species.
(c) After the priority listing has been updated, the persons
responsible for the diversions on the list shall be notified that
their diversions appear on the list. Such persons also shall be
furnished a description of the fish screening cost-sharing
program.
(d)(A) The department shall notify, by means of registered
mail, each person responsible for the first 250 diversions on the
priority listing on or before January 1, 1996. The department
shall furnish information regarding the fish screening
cost-sharing program to each person responsible for a diversion
included in the first 250 diversions on the priority listing on
or before January 1, 1996. A person may not be required to
install a screening or by-pass device unless previously notified
by the department of the requirement to install such devices.
(B) On January 1 of each even-numbered year, the department
shall notify each person responsible for a diversion included in
the first 250 diversions on the priority listing. However, the
department is not required to notify in a subsequent year any
person previously notified. The department shall include with
such notification information regarding the fish screening
cost-sharing program.
(C) Before any person is required to install a screening or
by-pass device, the department shall confirm the need for the
device through a visual, on-site inspection by appropriate staff
of the fish screening division of the department, or a district
biologist of the department.
(15) As used in this section:
(a) 'Behavioral barrier' means a system that utilizes a
stimulus to take advantage of natural fish behavior to attract or
repel fish. A behavioral barrier does not offer a physical
impediment to fish movement, but uses such means as electricity,
light, sound or hydraulic disturbance to move or guide fish.
(b) 'Body of water' includes but is not limited to irrigation
ditches, reservoirs, stock ponds and other artificially created
structures or impoundments.
(c) 'By-pass device' means any pipe, flume, open channel or
other means of conveyance that transports fish back to the body
of water from which the fish were diverted but does not include
fishways or other passages around a dam.
(d) 'Fish screen' means a screen, bar, rack or other barrier,
including related improvements necessary to ensure its effective
operation, to provide adequate protection for fish populations
present at a water diversion.
(e) 'Major maintenance' means all maintenance work done on a
screening or by-pass device other than minor maintenance.
(f) 'Minor maintenance' means periodic inspection, cleaning and
servicing of screening or by-pass devices at such times and in
such manner as to ensure proper operation of the screening or
by-pass device.
(g) 'Person' means any person, partnership, corporation,
association, municipal corporation, political subdivision or
governmental agency.
(h) 'Screening device' means a fish screen or behavioral
barrier.
SECTION 209. ORS 498.316 is amended to read:
498.316. ORS 498.306 does not require the installation of
screening or by-pass devices in those water diversions for which
the { - State Fish and Wildlife Commission - } { + Oregon
Natural Resources Commission + }, by contract or other form of
agreement with the person diverting the water, has made such
other provision as the commission determines is adequate for the
protection of the game fish in the body of water from which water
is being diverted.
SECTION 210. ORS 498.321 is amended to read:
498.321. (1) In order to carry out the provisions of ORS
498.301 and 498.306, the following minimum standards and criteria
apply to actions of the { - State Fish and Wildlife Commission
and the State Department of Fish and Wildlife - } { + Oregon
Department of Natural Resources and the Oregon Natural Resources
Commission + } with regard to fish screening or by-pass devices:
(a) Standards and criteria shall address the overall level of
protection necessary at a given water diversion and may not favor
one technology or technique over another.
(b) Standards and criteria shall take into account at least the
following factors relating to the fish populations present at a
water diversion:
(A) The source of the population, whether native or introduced
and whether hatchery or wild.
(B) The status of the population, whether endangered,
threatened or sensitive.
(c) Standards and criteria may take into account the cumulative
effects of other water diversions on the fish populations being
protected.
(d) Design and engineering recommendations shall consider
cost-effectiveness.
(e) Alternative design and installation proposals must be
approved if they can be demonstrated to provide an equal level of
protection to fish populations as those recommended by the
department.
(2) In order to maximize effectiveness and promote consistency
relating to the protection of fish at nonhydroelectric water
diversions, the department shall establish a single
organizational entity to administer all agency activities related
to fish screening and by-pass devices.
(3) The department shall emphasize cooperative effort and
mutual understanding with those responsible for water diversions
that need fish screening or by-pass devices.
(4) The department shall aggressively investigate and encourage
the development of new technologies and techniques to provide
protection for fish populations at water diversions in order to
reduce initial costs, reduce operating costs and improve
cost-effectiveness.
SECTION 211. ORS 498.326 is amended to read:
498.326. (1) The { - State Department of Fish and
Wildlife - } { + Oregon Department of Natural Resources + }
shall establish guidelines to determine the need for and location
of potential fish screening and by-pass projects. The guidelines
shall include a plan to be used for determining priorities for
and expected costs of installing and maintaining the fish
screening and by-pass devices.
(2) Nothing in subsection (1) of this section is intended to
prevent the { - State Department of Fish and Wildlife - }
{ + department + } from expending federal or other funds if such
funds become available for the installation and maintenance of
fish screening and by-pass projects.
SECTION 212. ORS 498.341 is amended to read:
498.341. Notwithstanding the limitations imposed by ORS
498.306, if sufficient funds are made available in the Fish
Screening Subaccount of the { - Fish and Wildlife Account, - }
{ + Oregon Natural Resources Fund + } by allocation from the
Administrative Services Economic Development Fund or from other
sources, the
{ - State Department of Fish and Wildlife - } { + Oregon
Department of Natural Resources + } may provide financial
assistance for construction and installation of screening or
by-pass devices on additional water diversions.
SECTION 213. ORS 498.346 is amended to read:
498.346. The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } may maintain a suit
to enjoin any person, including governmental agencies of this
state and political subdivisions of this state, from violating
the provisions of ORS 498.306. The circuit court for any county
in which are situated any waters in which any such violations are
threatened has jurisdiction of the suit authorized by this
section.
SECTION 214. ORS 498.406 is amended to read:
498.406. (1) Except as provided in ORS 498.412, no person shall
operate an outdoor club unless the person has a valid license for
such operation issued by the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + }, if
the outdoor club activities are to be conducted on land that is
leased from the owners thereof and if:
(a) The members of the club are not parties to the lease; and
(b) The members of the club do not have any financial or
proprietary interest in the club.
(2) No person required by subsection (1) of this section to
obtain a license to operate an outdoor club shall engage in
promotional plan activities for the sale of membership in the
outdoor club unless the person first obtains the license.
SECTION 215. ORS 498.418 is amended to read:
498.418. (1) A person who is required to obtain a license from
the { - State Fish and Wildlife Commission - } { + Oregon
Natural Resources Commission + } to operate an outdoor club shall
submit to the commission an application for such license, on a
form approved by the commission, that contains such information
as the commission may require regarding the ownership, financial
condition and operation of the club and promotional plans for
sale of membership therein.
(2) The application shall be accompanied by a fee of $100.
SECTION 216. ORS 498.424 is amended to read:
498.424. (1) A person who is licensed to operate an outdoor
club shall report immediately to the { - State Fish and
Wildlife Commission - } { + Oregon Natural Resources
Commission + } any material changes in the information required
to be contained in the application.
(2) Upon receipt of any such report, the commission may suspend
a license that has been issued for such time as the commission
considers necessary to adequately investigate and approve the
information submitted.
SECTION 217. ORS 498.432 is amended to read:
498.432. (1) Upon receipt in proper form of an application for
a license to operate an outdoor club, the { - State Fish and
Wildlife Commission - } { + Oregon Natural Resources
Commission + } shall issue a notice of filing to the applicant.
Within 30 days from the date of the notice of filing, the
commission shall enter an order granting or denying the license.
If the license is denied, the commission shall give the applicant
notice of the reasons therefor.
(2) If an order denying a license is not entered within 60 days
from the date of notice of filing of an application, a license
shall be considered granted unless the applicant has consented in
writing to a delay.
(3) Orders of the commission regarding the issuance, renewal,
suspension or revocation of a license shall be issued and
reviewed in accordance with ORS chapter 183.
SECTION 218. ORS 498.438 is amended to read:
498.438. The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } may cause to be
investigated, to such extent as the commission considers
appropriate, the activities and operations of an outdoor club for
which a license to operate has been received, previously granted
or previously denied. The commission's power to investigate
includes, but is not limited to:
(1) Contracting for investigative services with, and receiving
information and recommendations from, any other agency or
political subdivision of this state, another state or of the
United States.
(2) Making on-site inspections of all lands upon which outdoor
club activities are to be conducted.
SECTION 219. ORS 498.444 is amended to read:
498.444. Each application to the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + } for
a license to operate an outdoor club, all information submitted
with the application, and all information obtained by the
commission through investigation of applications, is a public
record.
SECTION 220. ORS 498.452 is amended to read:
498.452. The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } may refuse to issue
or renew a license to operate an outdoor club, or may revoke a
license that has been previously issued if the commission finds:
(1) Failure by the outdoor club or person advertising the sale
of membership in the outdoor club to comply with the provisions
of ORS 498.400 to 498.464 and 498.993 or any rule promulgated
pursuant thereto;
(2) That the promotional plan for the sale of outdoor club
membership is false, deceptive or misleading, or that the
promotional plan for the sale of membership is not in conformity
with the plan submitted with the license application and approved
by the commission;
(3) That any land upon which it has been represented that
outdoor club activities are to be conducted is unsuitable for the
purposes for which represented;
(4) That any obligation, guaranty or warranty to members of the
club by the outdoor club that was included in the promotional
plan for the sale of membership or in the contract or other
documents relating to membership is not being fulfilled or that
adequate financial arrangements to secure performance of such
obligations, guaranties or warranties has not been made; or
(5) That the proposed outdoor club activities would have
adverse effect upon existing wildlife populations or habitat or
upon wildlife-oriented recreation.
SECTION 221. ORS 498.458 is amended to read:
498.458. A license to operate an outdoor club expires one year
from the date of its issuance. A person who desire to renew a
license shall submit an application therefor to the { - State
Fish and Wildlife Commission - } { + Oregon Natural Resources
Commission + }, together with a fee of $100. The application
shall be in such form, contain such information and be submitted
at such time as the commission prescribes.
SECTION 222. ORS 498.464 is amended to read:
498.464. (1) Whenever the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + } has
cause to believe that any person is engaged in or is about to
engage in any acts or practices that constitute a violation of
ORS 498.400 to 498.464 and 498.993, or any rule promulgated
pursuant thereto, that requires immediate action to protect the
wildlife resources of this state, the commission shall institute
actions or proceedings for legal or equitable remedies to
restrain the violation or threatened action.
(2) The actions or proceedings authorized by subsection (1) of
this section may be instituted without necessity of a prior
administrative proceeding, or at any time during an
administrative proceeding if a proceeding has been commenced.
SECTION 223. ORS 501.005 is amended to read:
501.005. (1) The Governor by proclamation may suspend any
season established by the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + } for
hunting when the Governor determines that hunting may result in
extreme fire danger in any part of the state.
(2) The suspension referred to in subsection (1) of this
section may be applicable in all or any portion of this state,
and shall be effective for a specified or indeterminate period
until it appears to the Governor that the possible excessive fire
danger no longer exists. A suspension for an indeterminate period
shall be terminated by proclamation of the Governor.
(3) No person shall hunt during a period when or in an area
where the appropriate season has been suspended pursuant to this
section.
SECTION 224. ORS 501.015 is amended to read:
501.015. Except as the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + } by
rule may provide otherwise, no person shall hunt or trap any
wildlife on any wildlife refuge created by any law of this state
or any rule promulgated pursuant thereto.
SECTION 225. ORS 501.025 is amended to read:
501.025. Notwithstanding any restrictions to the contrary
regarding the uses of any wildlife refuge created by any law of
this state or any rule promulgated pursuant thereto, the
{ - State Fish and Wildlife Commission - } { + Oregon Natural
Resources Commission + } may authorize the hunting or trapping of
wildlife on any such wildlife refuge when the commission
determines that such action is necessary to properly manage the
supply or condition of the wildlife on such refuge.
SECTION 226. ORS 501.035 is amended to read:
501.035. (1) When any wildlife refuge is created by the laws of
this state or any rule promulgated thereto, the { - State Fish
and Wildlife Commission - } { + Oregon Natural Resources
Commission + } shall post signs around the boundary of the refuge
giving notice of restrictions on hunting or trapping of wildlife
on the refuge and on such other uses of the refuge as are
specified by law or rule.
(2) No person shall remove, deface, alter or destroy any sign
referred to in subsection (1) of this section.
SECTION 227. ORS 501.045 is amended to read:
501.045. The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } may enter into
contracts with the owners of land for the purpose of establishing
a wildlife refuge on the land. The contract shall be for such
period and shall contain such terms, conditions and restrictions
regarding the hunting and trapping of wildlife and other uses of
the land as the commission considers appropriate to properly
manage the supply and condition of the wildlife on the land.
SECTION 228. ORS 501.505 is amended to read:
501.505. (1) The following described lakes, the islands therein
and the lands adjacent thereto shall be known as the Sturgeon
Lake Wildlife Refuge:
(a) Big Sturgeon Lake, situated in sections 9, 10, 15, 16, 21,
22, 23, 26, 27, 28, 33 and 34, township 3 north, range 1 west,
Willamette Meridian.
(b) West Sturgeon Lake, situated in sections 20, 28, 29, 30, 32
and 33, township 3 north, range 1 west, Willamette Meridian.
(c) Little Sturgeon Lake, situated in sections 32 and 33,
township 3 north, range 1 west, Willamette Meridian, and sections
4 and 5, township 2 north, range 1 west, Willamette Meridian.
(d) Marquam Lake, situated in sections 34 and 35, township 3
north, range 1 west, Willamette Meridian, and sections 2 and 3,
township 2 north, range 1 west, Willamette Meridian.
(2) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } by rule shall
establish the exact boundaries of the wildlife refuge referred to
in subsection (1) of this section in such manner as the
commission determines will provide adequate protection for the
wildlife within the area. However, the boundaries so established
shall not include land adjacent to any lake referred to in
subsection (1) of this section that is further than 100 yards
from the line of ordinary high water of such lake.
SECTION 229. ORS 506.006 is amended to read:
506.006. As used in the commercial fishing laws, unless the
context requires otherwise:
(1) 'Angling' means fishing for personal use with one line
attached to a pole held in hand while landing the fish, or with a
hand-operated line without rod or reel, to which may be attached
not to exceed three hooks, except on floating bass plugs.
(2) 'Boat' means any vessel, any floating craft, powered,
towed, rowed or otherwise propelled which is used for landing or
taking food fish.
(3) 'Buy' includes offer to buy, barter, exchange or trade.
(4) 'Commercial purposes' means taking food fish with any gear
unlawful for angling, or taking or possessing food fish in excess
of the limits permitted for personal use, or taking, fishing for,
handling, processing, or otherwise disposing of or dealing in
food fish with the intent of disposing of such food fish or parts
thereof for profit, or by sale, barter or trade, in commercial
channels.
{ - (5) 'Commission' means the State Fish and Wildlife
Commission created by ORS 496.090. - }
{ - (6) 'Department' means the State Department of Fish and
Wildlife. - }
{ - (7) 'Director' means the State Fish and Wildlife Director
appointed pursuant to ORS 496.112. - }
{ - (8) - } { + (5) + } 'Fishing gear' means any appliance
or device intended for or capable of being used to take food fish
except by angling.
{ - (9) - } { + (6) + } 'Fixed fishing gear' includes but
is not limited to stationary gear operated at a fixed location.
{ - (10) - } { + (7) + } 'Personal use' means taking or
fishing for food fish by angling or by such other means and with
such gear as the { + Oregon Natural Resources + } Commission
may authorize for fishing for personal use, or possessing the
same for the use of the person fishing for, taking or possessing
the same and not for sale or barter.
{ - (11) - } { + (8) + } 'Sell' includes offer or possess
for sale, barter, exchange or trade.
{ - (12) - } { + (9) + } 'Take' means fish for, hunt,
pursue, catch, capture or kill or attempt to fish for, hunt,
pursue, catch, capture or kill.
{ - (13) - } { + (10) + } 'Transport' means transport by
any means, and includes offer or receive for transportation.
{ - (14) - } { + (11) + } 'Waters of this state' means all
waters over which the State of Oregon has jurisdiction, or joint
or other jurisdiction with any other state or government,
including waters of the Pacific Ocean and all bays, inlets,
lakes, rivers and streams within or forming the boundaries of
this state.
SECTION 230. ORS 506.011 is amended to read:
506.011. As used in the commercial fishing laws, unless the
context requires otherwise:
(1) 'Anadromous fish' includes but is not limited to salmon, as
defined in ORS 506.016; roccus saxatilis, commonly known as
striped bass; alosa sapidissima, commonly known as shad;
acipenser medirostris and acipenser transmontanus, commonly known
as sturgeon; and thaleichthys pacificus, commonly known as smelt.
(2) 'Animals living intertidally on the bottom' includes but is
not limited to starfish, sea urchins, sea cucumbers, snails,
bivalves, worms, coelenterates and shore, hermit and other small
crabs not included within subsection (1) or (7) of this section.
(3) 'Black rockfish' means sebastes melanops, commonly known as
black rockfish.
(4) 'Blue rockfish' means sebastes mystinus, commonly known as
blue rockfish.
(5) 'Food fish' means any animal over which the { - State
Fish and Wildlife Commission - } { + Oregon Department of
Natural Resources + } has jurisdiction pursuant to ORS 506.036.
(6) 'Nearshore fish' means:
(a) Enophrys bison, commonly known as buffalo sculpin;
(b) Hemilepidotus hemilepidotus, commonly known as red Irish
lord;
(c) Hemilepidotus spinosus, commonly known as brown Irish lord;
(d) Scorpaenichthys marmoratus, commonly known as cabezon;
(e) Hexagrammos decagrammus, commonly known as kelp greenling;
(f) Hexagrammos lagocephalus, commonly known as rock greenling;
(g) Hexagrammos stelleri, commonly known as whitespotted
greenling;
(h) Oxylebius pictus, commonly known as painted greenling;
(i) Sebastes atrovirens, commonly known as kelp rockfish;
(j) Sebastes auriculatus, commonly known as brown rockfish;
(k) Sebastes carnatus, commonly known as gopher rockfish;
(L) Sebastes caurinus, commonly known as copper rockfish;
(m) Sebastes chrysomelas, commonly known as black and yellow
rockfish;
(n) Sebastes dalli, commonly known as calico rockfish;
(o) Sebastes maliger, commonly known as quillback rockfish;
(p) Sebastes miniatus, commonly known as vermilion rockfish;
(q) Sebastes nebulosus, commonly known as china rockfish;
(r) Sebastes nigrocinctus, commonly known as tiger rockfish;
(s) Sebastes rastrelliger, commonly known as grass rockfish;
(t) Sebastes serranoides, commonly known as olive rockfish; or
(u) Sebastes serriceps, commonly known as treefish.
(7) 'Shellfish' includes but is not limited to abalone, clams,
crabs, crayfish or crawfish, mussels, oysters, piddocks, scallops
and shrimp.
SECTION 231. ORS 506.036 is amended to read:
506.036. (1) Except as otherwise provided in subsection (4) of
this section and in ORS 506.045 and 506.050, the { - State Fish
and Wildlife Commission - } { + Oregon Department of Natural
Resources + } has exclusive jurisdiction over all fish,
shellfish, and all other animals living intertidally on the
bottom, within the waters of this state. The { - commission - }
{ + department + } has joint or other jurisdiction with any
other state or government over all such fishes within the waters
of the Columbia River and its tributaries where such waters form
the boundaries of this state.
(2) The { - commission - } { + department + } has
jurisdiction over those species of fish, shellfish and all other
animals living intertidally on the bottom referred to in
subsection (1) of this section transported into or landed in this
state which have been taken in waters outside this state.
(3) The duty of protection, preservation, propagation,
cultivation, development and promotion of all fishes under its
jurisdiction is delegated to and imposed upon the
{ - commission - } { + department + }.
(4) The { - commission - } { + department + } has no
regulatory authority or jurisdiction over the commercial
cultivation of oysters in the waters of this state. However,
nothing in this subsection is intended to affect the authority of
the { + Oregon Natural Resources + } Commission under ORS
509.140.
SECTION 232. ORS 506.050 is amended to read:
506.050. (1) The United States Fish and Wildlife Service, the
{ - State Fish and Wildlife Commission - } { + Oregon
Department of Natural Resources + } and their duly authorized
agents may conduct fish cultural operations and scientific
investigations in the waters of this state in such manner and at
such times as may be considered necessary and proper by the
service, the { - commission - } { + department + } or their
agents.
(2) The { - commission - } { + department + } shall
propagate and stock the waters of this state with such fish as it
considers proper.
SECTION 233. ORS 506.119 is amended to read:
506.119. (1) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } has the authority to
formulate and implement the policies and programs of this state
for the management of food fish, and may perform all acts
necessary to administer and carry out the provisions of the
commercial fishing laws.
(2) In accordance with any applicable provision of ORS chapter
183, the commission may promulgate rules to carry out the
provisions of the commercial fishing laws.
SECTION 234. ORS 506.124 is amended to read:
506.124. The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } shall adopt rules
governing public and private salmon hatchery practices by July 1,
1984. The commission shall also submit quarterly reports to the
Emergency Board on matters related to the adoption of rules and
the impact of hatchery practices on the salmon resource.
SECTION 235. ORS 506.129 is amended to read:
506.129. (1) After investigation of the supply and condition of
food fish, the { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + }, at appropriate
times each year, shall by rule:
(a) Prescribe the times, places and manner in which food fish
may be taken or sold, except when canned or otherwise processed,
and the amount of those food fish species that may be taken or
sold.
(b) Prescribe such other restrictions or procedures regarding
the taking, selling or possessing of food fish as the commission
determines will carry out the provisions of the commercial
fishing laws.
(2) In carrying out the provisions of subsection (1) of this
section, the power of the commission includes, but is not limited
to:
(a) Prescribing the amount of each food fish species that may
be taken and possessed in terms of sex, size and other physical
characteristics.
(b) Prescribing such regular and special time periods and areas
closed to the taking and selling of any food fish species when
the commission determines such action is necessary to protect the
supply of such food fish.
(c) Prescribing regular and special time periods and areas open
to the taking and selling of any food fish species, and
prescribing means by which the taking of food fish is permitted.
SECTION 236. ORS 506.136 is amended to read:
506.136. The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } shall:
(1) Investigate the habits, supply and economic uses of, and
classify all food fish.
(2) Classify all fishing gear and such classification shall be
final.
SECTION 237. ORS 506.142 is amended to read:
506.142. The Fish Division established pursuant to ORS 496.124
shall be responsible for the management of all fish and other
marine life over which the { - State Fish and Wildlife
Commission - } { + Oregon Department of Natural Resources + }
has regulatory jurisdiction.
SECTION 238. ORS 506.154 is amended to read:
506.154. The { - State Fish and Wildlife Director - }
{ + Director of the Oregon Department of Natural Resources + }
shall:
(1) Be responsible to the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + } for
the administration and enforcement of the commercial fishing
laws.
(2) Be responsible for the collection, application and
dissemination of information pertinent to the management of food
fish resources and to the regulation of the uses of such
resources.
SECTION 239. ORS 506.201 is amended to read:
506.201. The { - State Fish and Wildlife Commission - }
{ + Oregon Department of Natural Resources and the Oregon
Natural Resources Commission + } may:
(1) Acquire by purchase, lease, gift, agreement or donation,
real property, or any right or interest therein, including any
easement or right of access, necessary:
(a) To construct or maintain fish hatcheries, fishways or
research facilities;
(b) To remove logjams; or
(c) Otherwise to carry out the duties imposed on the { +
department or the + } commission by law.
(2) Acquire by exercise of the power of eminent domain any
easement or right of access necessary to construct or maintain
fishways or remove logjams. Proceedings instituted by the { +
department or the + } commission under this subsection shall be
conducted in accordance with ORS chapter 35.
(3) Lease, dispose of or grant easements upon any property
owned by the state and used for the protection, propagation or
preservation of food fish, which is found to be of no further use
or value to the state. The { + department or the + } commission
shall turn over the proceeds arising from such disposition to the
State Treasurer to be credited to the General Fund.
SECTION 240. ORS 506.211 is amended to read:
506.211. (1) Subject to subsection (2) of this section, the
{ - State Fish and Wildlife Commission - } { + Oregon
Department of Natural Resources + } may acquire by gift or
purchase, and may acquire by capture or otherwise in this state,
any fish, eggs or larvae thereof for propagation, experimental or
scientific purposes.
(2) The { - commission - } { + department + } or any other
person authorized by it who takes salmon eggs from the waters of
the Rogue River for the purpose of supplying the various
hatcheries of this state, shall return at least 40 percent of the
fish hatched from the eggs to the Rogue River.
SECTION 241. ORS 506.213 is amended to read:
506.213. (1) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } shall cause to be
commenced and shall supervise the construction of a fish hatchery
on the Oregon coast for the purpose of rearing coho and chinook
salmon. The location for the site of the hatchery shall be at the
discretion of the commission. Selection of the site shall be
based upon the most recent research data available to the
commission.
(2) The hatchery constructed pursuant to subsection (1) of this
section shall be maintained and operated by the commission.
SECTION 242. ORS 506.215 is amended to read:
506.215. The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } may construct,
maintain or operate hatcheries in an adjoining state, but no
hatchery shall be constructed or operated on any stream in an
adjoining state that is not a tributary of the Columbia River, or
whose waters do not flow into the Columbia River.
SECTION 243. ORS 506.220 is amended to read:
506.220. Whenever deadlines are established on any of the
waters of this state, either by legislative enactment or by order
of the { - State Fish and Wildlife Commission - } { + Oregon
Natural Resources Commission + }, the commission shall, within a
reasonable time, erect suitable monuments or markers in the water
or on the banks of the water designating the closed portion of
the water. It is unlawful to remove, destroy, alter or mutilate
any of these monuments or markers.
SECTION 244. ORS 506.226 is amended to read:
506.226. Notwithstanding any other provision of law the
{ - State Department of Fish and Wildlife - } { + Oregon
Department of Natural Resources + } shall not use in any body of
water any electric current or electric shock device for the
purpose of capturing any adult salmonids for a person granted a
permit pursuant to ORS 508.700 to 508.745.
SECTION 245. ORS 506.231 is amended to read:
506.231. The { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + } shall prepare and
make available to the public upon request monthly reports of fish
hatchery operations. Information in the report shall include, but
is not limited to:
(1) The location of each state facility at which salmon eggs
were taken and the number of eggs taken.
(2) The number and destination of salmon eggs transferred from
one state facility to another.
(3) The number of salmon eggs to be reared at each state
facility.
(4) The number of salmon eggs sold from each state facility to
any person granted a permit pursuant to ORS 508.700 to 508.745.
(5) The number of salmon eggs from state facilities allocated
for volunteer salmonid improvement program activities.
(6) The location and circumstances of each mortality incident
involving 10,000 or more salmon eggs at a state facility.
SECTION 246. ORS 506.241 is amended to read:
506.241. The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + }, by rule, may
prescribe a commercial fishing vessel fleet reduction program
that complies with the federal Salmon and Steelhead Conservation
and Enhancement Act of 1980.
SECTION 247. ORS 506.306 is amended to read:
506.306. (1) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } shall collect all
moneys to be paid to this state for the protection, preservation,
propagation and development of the commercial fishing industry
and arising under the commercial fishing laws and deposit such
moneys in the
{ - Commercial Fisheries Fund - } { + Oregon Natural
Resources Fund. Except as provided in ORS 506.690, all moneys
deposited in the fund under this subsection are continuously
appropriated to the Oregon Department of Natural Resources for
the administration and enforcement of the commercial fishing laws
of this state and for the management, propagation, research, or
habitat improvement of the food fish resources of this state or
other activities that protect, maintain or enhance the food fish
resource of this state + }.
{ + (2) Except as provided in ORS 508.949, all moneys
collected pursuant to ORS 508.505 to 508.550 for fish species
taken pursuant to developmental fishery activities described in
ORS 506.460 shall be credited to a separate subaccount in the
Oregon Natural Resources Fund. Notwithstanding subsection (1) of
this section, the department shall expend 25 percent of moneys
collected under this subsection on general fish management
purposes and 75 percent on expenses related to developmental
fishery activities described in ORS 506.460. + }
{ - (2) - } { + (3) + } Except as provided in ORS 506.630,
all fines collected for violation of the commercial fishing laws
shall be credited and distributed under ORS 137.293 and 137.295
as monetary obligations payable to the state.
SECTION 248. ORS 506.316 is amended to read:
506.316. Except as otherwise provided in ORS 506.321, all
expenditures of the { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } pursuant to the
commercial fishing laws shall be made from moneys appropriated
for the purposes for which such moneys are used, upon claims
presented and warrants drawn pursuant to law.
SECTION 249. ORS 506.321 is amended to read:
506.321. The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } may accept gifts of
money, lands or other property and use the same for the
protection, preservation, propagation and development of the
fishery resource, subject to the terms of the gift. Subject to
such terms the gifts may be used or exchanged for the acquisition
of other lands, waters, rights, easements or other property. Any
moneys received under this section not otherwise appropriated
hereby are appropriated for such purposes.
SECTION 250. ORS 506.405 is amended to read:
506.405. The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } may:
(1) Enter into such contracts, appoint such officers and do any
other act or thing necessary fully to meet the requirements of
the United States and the officers acting under federal statute
in aid of the conservation and preservation of fish and fisheries
in this state or concerning any federal project wherein the
conservation and preservation of such fish and fisheries are
involved.
(2) Accept contributions of funds from the federal government
for such purposes.
SECTION 251. ORS 506.450 is amended to read:
506.450. As used in ORS 506.450 to 506.465, 'developmental
fishery' means activity for the development of commercial taking
of an underutilized food fish species. The { - State Fish and
Wildlife Commission - } { + Oregon Natural Resources
Commission + } by rule shall determine those species of food fish
that are underutilized.
SECTION 252. ORS 506.460 is amended to read:
506.460. In consultation with the Developmental Fisheries
Board, the { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } shall:
(1) Establish an annual list of food fish species that are
considered to be developmental fishery species.
(2) Establish and review commercial harvest programs for
developmental fishery species.
(3) Establish methods to obtain biological information
necessary to determine the long term sustainability of the
resource.
(4) Establish limited entry harvest systems for developmental
fisheries. An annual fee of not more than $100 to participate in
a developmental fishery may be charged by the commission.
(5) Issue permits for developmental fisheries within 14 days of
receiving a written request for a permit.
SECTION 253. ORS 506.462 is amended to read:
506.462. (1) A person whose application for a developmental
fisheries permit or a restricted permit established under
subsection (6) of this section, or for the renewal or transfer of
a developmental fisheries permit or restricted permit, is denied
may make written request to the Commercial Fishery Permit Board
for review of the denial. The review provided in this subsection
is in lieu of any review by the { - State Department of Fish
and Wildlife or the State Fish and Wildlife Commission - }
{ + Oregon Department of Natural Resources or the Oregon Natural
Resources Commission + }. The request shall be in such form and
shall contain such information as the board considers
appropriate. The request shall be accompanied by a nonrefundable
fee of $125. The fee shall apply toward any applicable permit
fees resulting from an order of the board in favor of the
requesting applicant.
(2) The board shall review a denial as a contested case under
ORS chapter 183. Orders issued by the board are not subject to
review by the commission, but may be appealed as provided in ORS
183.482.
(3) The board may waive requirements for renewal of a
developmental fisheries permit or a restricted permit established
under subsection (6) of this section if the board finds that an
individual applicant fails to meet the requirements as the result
of illness, accident or other circumstances beyond the
individual's control.
(4) The board may delegate to the department the board's
authority to waive requirements for renewal of developmental
fisheries permits or restricted permits established under
subsection (6) of this section.
(5) The board may adopt such rules as it determines necessary
to carry out its duties, functions and powers under this section.
(6) Once the commission determines that a commercial harvest of
a developmental fishery can be sustained, it may remove that
fishery from the developmental fisheries list, and may, by rule,
establish a restricted participation system or a restricted
vessel permit system for that fishery. These restricted permit
systems may include, but are not limited to, provisions relating
to the following matters:
(a) Establishment of criteria for initial entry into the
restricted permit system and criteria for annual qualification
for continued participation in the system; and
(b) Establishment of terms and conditions for transferring
participation rights.
SECTION 254. ORS 506.465 is amended to read:
506.465. (1) The Developmental Fisheries Board is established
in the { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + }. The board shall
consist of members appointed by the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + }
after consultation with commercial fishing industry
representatives to { - insure - } { + ensure + }
representation on the board of a broad range of fishing
interests.
(2) The commission shall appoint:
(a) Two members who are commercial fishermen licensed in this
state and who are the operators of commercial fishing vessels
that are less than 60 feet in length.
(b) Two members who are commercial fishermen licensed in this
state and who are the operators of commercial fishing vessels
that are 60 feet or more in length.
(c) One member who represents commercial fishing interests in
general.
(d) One member who is employed by a fish processor having fewer
than 50 employees.
(e) One member who is employed by a fish processor having 50 or
more employees.
(f) One member who is an employee of the { - State Department
of Fish and Wildlife - } { + Oregon Department of Natural
Resources who has knowledge of the commercial fishing
industry + }.
(g) One member who is an employee of the State Department of
Agriculture.
(3) A member of the board shall receive no compensation for
services as a member. However, subject to any applicable law
regulating travel and other expenses of state officers and
employees, a member shall be reimbursed for actual and necessary
travel and other expenses incurred in the performance of duties
as a board member. The board shall meet at least once each year.
SECTION 255. ORS 506.501 is amended to read:
506.501. The { - State Fish and Wildlife Commission has - }
{ + Oregon Department of Natural Resources and the Oregon
Natural Resources Commission have + } jurisdiction and authority
to enforce the commercial fishing laws, except as provided in ORS
506.506 to 506.516.
SECTION 256. ORS 506.506 is amended to read:
506.506. It is the intent of ORS 506.511 and 506.516 to permit
the { - State Fish and Wildlife Commission - } { + Oregon
Department of Natural Resources + } to employ only such deputy
fish wardens as are agreed necessary or expedient among the
{ - commission - } { + department + }, the Governor and the
Superintendent of State Police, and that the duties of enforcing
criminal provisions of the commercial fishing laws, so far as is
economical and practicable, be performed by the Department of
State Police.
SECTION 257. ORS 506.516 is amended to read:
506.516. The { - State Fish and Wildlife Commission - }
{ + Oregon Department of Natural Resources + }, with the
approval of the Governor and the Superintendent of State Police,
may employ deputy fish wardens to the extent necessary or
expedient.
SECTION 258. ORS 506.518 is amended to read:
506.518. The { - State Fish and Wildlife Commission - }
{ + Oregon Department of Natural Resources + } may appoint
special deputy fish wardens who shall serve without compensation
except for what the
{ - commission - } { + Oregon Natural Resources
Commission + } may allow for special services.
SECTION 259. ORS 506.521 is amended to read:
506.521. Each member of the { - State Fish and Wildlife
Commission, the State Fish and Wildlife Director - } { + Oregon
Natural Resources Commission, the Director of the Oregon
Department of Natural Resources + } and every inspector, deputy
fish warden, special deputy fish warden, and all peace officers
of this state or any political subdivision therein, shall enforce
the commercial fishing laws within their respective
jurisdictions. In the performance of these duties such officers
are subject to the direction and control of the commission or
director.
SECTION 260. ORS 506.526 is amended to read:
506.526. (1) The { - State Fish and Wildlife Director - }
{ + Director of the Oregon Department of Natural Resources + }
or any inspector, deputy fish warden or special deputy fish
warden may arrest any person the officer has probable cause to
believe is in the act of committing a violation of the commercial
fishing laws. Such officers are peace officers of the state for
this purpose and may execute all criminal process issued for the
arrest or detention of any person complained against for
violation of the commercial fishing laws. It is unlawful
knowingly or willfully to resist or oppose such officers in the
discharge of their duties.
(2) Any officer described in subsection (1) of this section who
makes an arrest must report it, together with the disposition of
the case, to the director within 30 days after the date of the
arrest. Failure so to report subjects the officer to removal from
office by the authority that appointed the officer.
(3) The officers described in subsection (1) of this section
have all the powers and authority of a peace officer in serving
warrants, subpoenas and other legal process in the enforcement of
the commercial fishing laws.
SECTION 261. ORS 506.535 is amended to read:
506.535. (1) Unless otherwise specifically provided, justice
courts have concurrent jurisdiction in the first instance with
circuit courts of all offenses under the commercial fishing laws.
(2) Any action or proceedings under the commercial fishing laws
shall be commenced on order of the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + } or a
person duly authorized to enforce such laws, or by any district
attorney, in the county in which the offense is alleged to have
been committed.
SECTION 262. ORS 506.540 is amended to read:
506.540. The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } may offer and
authorize payment of rewards for the arrest and conviction of any
person who has violated any of the commercial fishing laws, but
no reward of more than $100 shall be offered or paid for any one
arrest or conviction.
SECTION 263. ORS 506.620 is amended to read:
506.620. The { - State Fish and Wildlife Director - }
{ + Director of the Oregon Department of Natural Resources, + }
or { + the + } authorized agent { + of the director, + } may
enter and inspect all canneries, cold storage houses, packing
establishments, business places, boats, fishing gear, and all
property used in the taking, processing and packing of food fish,
for the purpose of enforcing the commercial fishing laws.
SECTION 264. ORS 506.690 is amended to read:
506.690. (1) All fish taken by or in the possession of any
person in violation of the commercial fishing laws or the rules
of the { - State Fish and Wildlife Commission - } { + Oregon
Natural Resources Commission + } shall be seized by any member of
the commission or any officer described in ORS 506.521.
(2) Any fish seized under the provisions of subsection (1) of
this section may be disposed of, sold, preserved or used for food
purposes, under the rules of the commission, to prevent loss or
spoilage. At the time the court passes sentence in the criminal
prosecution for violation of the commercial fishing laws, the
court may order that any fish seized under subsection (1) of this
section or the proceeds from the sale of such fish shall be
forfeited. Any moneys derived from the sale of any forfeited fish
shall be deposited in the { - Commercial Fisheries Fund. - }
{ + Oregon Natural Resources Fund. Moneys deposited in the fund
under this subsection are continuously appropriated to the Oregon
Department of Natural Resources for the purpose of carrying out
the duties, functions and powers of the department as prescribed
by sections 1 (1) and (2) and 5 (1)(a) and (b) of this 2011
Act. + }
(3) If the fish seized under subsection (1) of this section are
not subsequently forfeited, the commission shall pay to the
person from whom the fish were seized an amount equal to the
market value of the fish at the time of seizure.
(4) The commission shall approve the amount to be paid under
subsection (3) of this section, and the claim shall be paid from
the { - Commercial Fisheries Fund - } { + Oregon Natural
Resources Fund + } in the manner provided by law for the payment
of claims against the state. There is { - appropriated
continuously from the Commercial Fisheries Fund - }
{ + continuously appropriated from the fund + } an amount equal
to the amounts approved by the commission under this subsection.
SECTION 265. ORS 506.695 is amended to read:
506.695. (1) All boats, fishing gear and vehicles used in
violation of the commercial fishing laws or the rules of the
{ - State Fish and Wildlife Commission - } { + Oregon Natural
Resources Commission + } may be seized, and piling driven for the
sole or primary purposes of violation of such laws may be
removed, by any member of the commission or any officer described
in ORS 506.521. The agency that seizes property under this
subsection shall retain custody of the seized property until it
is ordered returned to the owner or confiscation is adjudged
pursuant to this section.
(2) Upon the order of the court at the time of passing sentence
for a crime, the property seized under subsection (1) of this
section may be forfeited. If forfeited, such property shall be
turned over to the commission.
(3) The commission may dispose of such forfeited property in
any manner it deems proper, but the clear proceeds derived from
the sale of any forfeited property shall be deposited with the
State Treasury to be placed in the Common School Fund.
SECTION 266. ORS 506.720 is amended to read:
506.720. (1) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } may institute suit
for the recovery of damages for the unlawful taking, possession
or killing of food fish referred to in this section that are the
property of the state.
(2) The damages referred to in subsection (1) of this section
shall be as follows:
(a) For food fish other than pink shrimp, salmon or steelhead,
twice the average market value of the food fish.
(b) For salmon or steelhead taken in waters other than the
waters of the Pacific Ocean, $125 per fish.
(c) For salmon or steelhead taken in the waters of the Pacific
Ocean:
(A) For the first violation, twice the average market value of
the food fish.
(B) For the second and each subsequent violation within a
five-year period, $125 per fish.
(d) For pink shrimp:
(A) For the first violation, five percent of the average market
value of the food fish.
(B) For the second violation within a five-year period, 10
percent of the average market value of the food fish.
(C) For the third and each subsequent violation within a
five-year period, 20 percent of the average market value of the
food fish.
(3) The commission shall by rule in January of each year
establish the average market value for each species of food fish
for the year.
(4) No person shall apply for or obtain any license, tag or
permit issued by the commission when civil damages due pursuant
to this section, or when moneys due the { - State Department of
Fish and Wildlife - } { + Oregon Department of Natural
Resources + } from court-ordered restitutions for violations of
the commercial fishing laws have not been paid.
SECTION 266a. ORS 506.755 is amended to read:
506.755. (1) The State of Oregon adopts a Fisheries
Conservation Zone for the maintenance, preservation and
protection of all coastal species of fish and other marine
fisheries resources between the mean high water mark of the state
and a straight line extension of the lateral boundaries of the
state drawn seaward to a distance of 50 statute miles.
(2) Activities of marine commercial fishing within the limits
and boundaries of the Fisheries Conservation Zone shall be under
the jurisdiction and regulation of the { - commission - } { +
Oregon Department of Natural Resources + }.
(3) The { - commission - } { + department + } shall study
the fishery within the zone and when appropriate adopt, amend or
repeal all rules, according to the provisions of ORS 506.119 and
506.129 necessary for the maintenance, preservation and
protection of all coastal species of fish and other marine
fisheries resources.
(4) The jurisdiction within the Fisheries Conservation Zone
shall include, but not be limited to, provisions for inspection
of catch, particularly regarding anadromous fish; rules relating
to methods of fishing, size and kind of gear and nets; rules
designating seasons, closures and restricted areas.
(5) ORS 506.501 to 506.695 shall provide the authority for
enforcing rules adopted by the { - commission - }
{ + department + } as specified in this section.
(6) Subject to ORS 153.022, any person convicted of violating
any rule authorized under the provisions of this section shall be
punished by a fine not to exceed $10,000.
(7) Nothing contained within this section is intended to
abrogate a nation's right of free passage or navigation of the
high seas.
(8) Nothing contained within this section is intended to
abrogate international fish compacts, agreements or treaties
providing for the management of anadromous or pelagic fish
species.
SECTION 267. ORS 506.991 is amended to read:
506.991. (1) Except as provided in this section, and subject to
ORS 153.022, violation of any provision of the commercial fishing
laws, or of any rule promulgated by the { - State Fish and
Wildlife Commission - } { + Oregon Natural Resources
Commission + } in carrying out the commercial fishing laws, is a
Class A misdemeanor.
(2) In lieu of the fine provided in ORS 161.635, and in
addition to the imprisonment provided in ORS 161.615, any
violation of this section is punishable as follows:
(a) For the first conviction, a fine not to exceed $2,500.
(b) For the second conviction within a 10-year period, a fine
not to exceed $4,000.
(c) For the third conviction within a 10-year period, a fine
not to exceed $10,000.
(d) For the fourth and subsequent convictions within a 10-year
period, a fine not to exceed $25,000.
(3) Violation of any provision of ORS 509.011 which occurs more
than 12 hours prior to or more than 12 hours subsequent to a
season established under ORS 506.129 by the commission for the
lawful taking of food fish when the total value of the food fish
is $200 or more is a Class C felony.
(4) In addition to the penalties of this section and
notwithstanding the provisions of ORS 506.690, all fish or sexual
products therefrom taken by or in the possession of any person
sentenced under this section shall be seized and confiscated,
condemned, and sold.
SECTION 268. ORS 506.995 is amended to read:
506.995. (1) As used in this section, 'gain' means the amount
of money and the value of any property derived from the
violation.
(2) In addition to any other sanction imposed by law, if a
person derives a gain of at least $5,000 from violating any
commercial fishing law or rule promulgated pursuant to such laws,
the person shall be subject to a civil penalty that is equal to
twice the amount of the gain.
(3) Civil penalties under this section shall be imposed
pursuant to ORS 183.745.
(4) Any civil penalty received by the { - State Department of
Fish and Wildlife - } { + Oregon Department of Natural
Resources + } under this section shall be deposited in the
{ - Commercial Fisheries Fund. - } { + Oregon Natural
Resources Fund. Moneys deposited in the fund under this
subsection are continuously appropriated to the department for
the purpose of carrying out the duties, functions and powers of
the department as prescribed by sections 1 (1) and (2) and 5
(1)(a) and (b) of this 2011 Act. + }
SECTION 269. ORS 507.030 is amended to read:
507.030. (1) The { - State Fish and Wildlife Commission - }
{ + Director of the Oregon Department of Natural Resources and
the Oregon Natural Resources Commission + }, on behalf of the
State of Oregon, may enter into an agreement with the constituted
authority of the State of Washington, to modify the existing
agreement with respect to fishing in the waters of the Columbia
River and its tributaries, within the confines of the States of
Oregon and Washington, where such waters are state boundaries
between the States of Oregon and Washington, as approved by the
United States Congress on April 8, 1918.
(2) The { + director and the + } commission, in entering into
any agreement with the constituted authority of the State of
Washington, as provided in subsection (1) of this section, may
hold a hearing jointly with such constituted authority of the
State of Washington within the State of Washington. However, any
such joint meeting scheduled in either state shall be held not
more than 25 miles from an area of the Columbia River where
commercial fishing is permitted.
SECTION 270. ORS 507.050 is amended to read:
507.050. The { - State Fish and Wildlife Director - }
{ + Director of the Oregon Department of Natural Resources + },
one legislator appointed as provided in this section and one
public member appointed by the Governor shall act as
representatives of the State of Oregon on the Pacific States
Marine Fisheries Commission in accordance with the provisions of
and with the powers and duties in the compact set forth in ORS
507.040. The legislative member shall be appointed by the
President of the Senate or the Speaker of the House of
Representatives from among those legislators who, at the time of
appointment, are serving on the Pacific Fisheries Legislative
Task Force. The legislative member shall serve for a term of four
years. The Speaker of the House of Representatives and the
President of the Senate shall alternate in making the appointment
of the legislative member.
SECTION 271. ORS 508.025 is amended to read:
508.025. (1) It is unlawful for any person, without first
procuring a license from the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + }, to:
(a) Take food fish in any of the waters of this state for
commercial purposes or land food fish in this state for
commercial purposes.
(b) Buy, sell or otherwise deal in food fish for commercial
purposes.
(c) Process or can food fish for commercial purposes.
(2) In a prosecution under this section, it is no defense that
a person did take the person's own food fish for commercial
purposes.
SECTION 272. ORS 508.030 is amended to read:
508.030. It is unlawful for any individual to operate, or leave
in a condition to take food fish in any of the waters of this
state, any fishing gear used in taking food fish, without first
obtaining from the { - State Fish and Wildlife Director or the
authorized agent of the director - } { + Oregon Natural
Resources Commission + } such license as may be prescribed by
this chapter. The license must be in the possession of such
individual at the time the fishing gear is being used.
SECTION 273. ORS 508.035 is amended to read:
508.035. (1) Separate licenses are required for each:
(a) Person other than an employee operating as a canner of food
fish.
(b) Person other than an employee operating as a wholesale fish
dealer, for each separate place of business.
(c) Individual acting or engaged as a fish buyer by a person
licensed under paragraph (a) or (b) of this subsection.
(d) Person licensed under paragraph (a) or (b) of this
subsection, for each permanent site or location operated by such
person as a fish-buying station.
(e) Individual taking or assisting in the taking of food fish
for commercial purposes as described in ORS 508.235.
(f) Boat, used in taking food fish for commercial purposes, as
described in ORS 508.260.
(g) Single delivery of food fish from the Pacific Ocean for
commercial purposes in the absence of licenses under paragraphs
(e) and (f) of this subsection.
(h) Person other than an employee operating as a fish bait
dealer, for each separate place of business.
(i) Individual taking or assisting in the taking of food fish
for sale to a fish bait dealer.
(2) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } shall classify and
define the various licenses provided for in this section and
shall { - direct the State Fish and Wildlife Director - }
{ + authorize the Director of the Oregon Department of Natural
Resources + } to issue licenses accordingly and the
classification shall be final.
SECTION 274. ORS 508.106 is amended to read:
508.106. (1) Upon receiving a written application therefor,
accompanied by a fee of $30, the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + } may
issue to any person a permit to take carp or other nongame fish.
(2) The kind or kinds of fish, the method to be used and the
name and location of the body of water from which the fish are to
be taken, shall be specified in the permit.
(3) After having obtained a permit as provided for in
subsection (1) of this section, and subject to any rules of the
commission, any person may take carp or nongame fish from any of
the waters of this state described in the permit.
(4) It is unlawful to:
(a) Retain any fish other than described in the permit in
connection with the use of any permit issued under subsection (1)
of this section, and any other fish taken shall at once be set
free; or
(b) Take any fish for commercial purposes by a permit issued
under subsection (1) of this section without first having
obtained a license under ORS 508.035.
SECTION 275. ORS 508.111 is amended to read:
508.111. The { - State Fish and Wildlife Director - }
{ + Director of the Oregon Department of Natural Resources + }
may issue to any person a permit to take food fish solely for
educational and scientific purposes.
SECTION 276. ORS 508.116 is amended to read:
508.116. (1) The { - State Fish and Wildlife Director - }
{ + Director of the Oregon Department of Natural Resources + }
may issue to any person a permit to take animals living
intertidally on the bottom. The annual fee for a permit issued
under this section is $40.
(2) It is unlawful to take animals living intertidally on the
bottom for commercial purposes by a permit issued under
subsection (1) of this section without first having obtained a
license under ORS 508.035.
SECTION 277. ORS 508.121 is amended to read:
508.121. (1) Any juvenile may secure from the { - State Fish
and Wildlife Commission - } { + Oregon Natural Resources
Commission + } free of charge a juvenile jig line license to take
herring, pilchard, perch, anchovies and candlefish by a hand or
jig line and to sell such fish so taken by the juvenile to a
wholesale fish dealer or a fish bait dealer.
(2) As used in this section, 'juvenile' means any individual 17
years of age or younger as of January 1 of the year for which the
license is issued.
(3) The license, for the purposes authorized in this section,
is in lieu of the commercial fisherman and boat licenses required
under ORS 508.235 and 508.260.
SECTION 278. ORS 508.235 is amended to read:
508.235. (1) A commercial fishing license must be obtained by
each individual who, for commercial purposes:
(a) Takes or assists in the taking of any food fish from the
waters or land of this state;
(b) Operates or assists in the operation of any boat or fishing
gear for the taking of food fish in the waters of this state; or
(c) Lands food fish from the waters of the Pacific Ocean at any
point in this state.
(2) A commercial fishing license must be in the possession of
the licensee, when engaged in the taking or landing of commercial
fish, and is required in addition to any other license under this
chapter.
(3) Notwithstanding any other provision of this section or ORS
508.035, upon application of the holder of a boat license, the
{ - State Fish and Wildlife Commission - } { + Oregon Natural
Resources Commission + } shall issue to the applicant in the name
of the boat, one commercial fishing license for each individual
who assists the holder of the boat license in the taking of fish
for commercial purposes. Notwithstanding ORS 508.465, licenses
issued pursuant to this subsection are transferable to all
individuals who assist in the taking of fish for commercial
purposes on the boat for which the licenses are issued.
Notwithstanding ORS 508.285, the fee for the license issued
pursuant to this subsection in the name of a boat:
(a) With a resident boat license is $125 for each individual.
(b) With a nonresident boat license is $350 for each
individual.
SECTION 279. ORS 508.260 is amended to read:
508.260. (1) A boat license must be obtained by the owner or
operator of any boat used in taking food fish or shellfish for
commercial purposes except for the taking of clams or crayfish.
(2) A pair of decals bearing the last two numbers of the year
for which the license is issued shall be included with the
license for placement on the licensed boat.
(3) In accordance with rules promulgated by { - it, the State
Fish and Wildlife Commission - } { + the Oregon Natural
Resources Commission, the commission + } shall assign a number to
each licensed boat and shall designate the size, location and
manner of placement of the number and license year decal on the
boat.
SECTION 280. ORS 508.306 is amended to read:
508.306. (1) Any person may obtain a fish bait dealer license
to purchase food fish directly from a commercial fisherman
licensed under ORS 508.235 or commercial bait fisherman licensed
under ORS 508.312, for retail sale as fish or shellfish bait.
(2) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } by regulation may
designate those species of food fish or parts thereof which may
not be used for fish or shellfish bait.
SECTION 281. ORS 508.316 is amended to read:
508.316. Except as provided in ORS 508.843 and 508.883, the
{ - State Fish and Wildlife Director - } { + Director of the
Oregon Department of Natural Resources + } shall not issue a boat
more than one single delivery license under ORS 508.285 during a
12-month period as established by rule of the director. For
purposes of this section, the disqualification from receiving
additional single delivery licenses shall apply to a boat without
regard to ownership or changes in ownership.
SECTION 282. ORS 508.406 is amended to read:
508.406. The { - State Fish and Wildlife Director - }
{ + Director of the Oregon Department of Natural Resources + }
or the authorized agent of the director shall issue or renew any
license required by the commercial fishing laws to a qualified
person upon proper application and payment of the license fee
required by ORS 508.285.
SECTION 283. ORS 508.410 is amended to read:
508.410. All applications for licenses under ORS 508.406 shall
be made on blanks furnished by the { - State Fish and Wildlife
Director - } { + Director of the Oregon Department of Natural
Resources + } and shall contain such information as the
{ - State Fish and Wildlife Commission - } { + Oregon Natural
Resources Commission + } determines to be necessary for proper
administration and enforcement of the commercial fishing laws.
SECTION 284. ORS 508.415 is amended to read:
508.415. (1) In case of license applications by canners or
wholesalers, the { - State Fish and Wildlife Director - }
{ + Director of the Oregon Department of Natural Resources + },
in addition to license fees provided by law, may exact from the
applicant a bond from a corporate surety, authorized to do
business in this state, guaranteeing the payment of fees, if the
director considers such action is necessary to insure compliance
with ORS 508.505 to 508.540.
(2) In lieu of any bond that may be required under subsection
(1) of this section, any applicant may deposit with the
{ - State Fish and Wildlife Commission - } { + Oregon Natural
Resources Commission + }, under such terms and conditions as the
director may prescribe, a like amount of lawful money of the
United States or an irrevocable letter of credit issued by an
insured institution, as defined in ORS 706.008. The commission
shall turn over to the State Treasurer for safekeeping all such
deposits so received.
SECTION 285. ORS 508.445 is amended to read:
508.445. In all prosecutions requiring proof as to the issuance
or nonissuance of a license by the { - State Fish and Wildlife
Director - } { + Director of the Oregon Department of Natural
Resources + } under any of the laws of this state, the
certificate of the director as to the issuance or nonissuance of
the license by the director shall be sufficient proof on that
question to establish the fact. This certificate shall be
admitted in evidence as to the issuance or nonissuance of the
license in any such prosecution.
SECTION 286. ORS 508.450 is amended to read:
508.450. Each license issued under ORS 508.406 shall be
numbered and dated by the { - State Fish and Wildlife
Director - } { + Director of the Oregon Department of Natural
Resources + } or an authorized agent { + of the director + } and
contain the site or address where the appliance or business is
located and the name of the person to whom the license is
granted.
SECTION 287. ORS 508.470 is amended to read:
508.470. All licenses for which fees are provided for under ORS
508.285 unless otherwise specified in law expire as of midnight,
December 31, following the dates of their issuance or on such
date as may be specified by rule of the { - State Department of
Fish and Wildlife - } { + Oregon Department of Natural
Resources + }. The licenses may be renewed annually thereafter
upon application and payment of fees required therefor.
SECTION 288. ORS 508.485 is amended to read:
508.485. Except for vessel licenses prescribed in ORS 508.285,
508.470, 508.775 to 508.796, 508.801 to 508.825, 508.880, 508.883
and 508.889 to 508.910, the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + } may,
in its discretion, revoke for the remainder of the license year
any license issued to a person under the authority of the
commission or the { - State Fish and Wildlife Director - }
{ + Director of the Oregon Department of Natural Resources + },
and in its discretion may refuse the issuance of any license
issued under the authority of the commission or director during
any period not to exceed one year from the date of the license
revocation order:
(1) Upon conviction within this state of any person of
violation of any of the commercial fishing laws or rules;
(2) Upon receiving notice from the agency that regulates
commercial fishing in the State of Washington of the conviction
of any person in that state of an offense that was a violation of
Columbia River commercial fishing rules adopted pursuant to the
Columbia River Compact and that if committed in this state would
be grounds for license revocation pursuant to subsection (1) of
this section;
(3) Upon conviction within this state of any person for
violation of ORS 498.022, or any rule promulgated pursuant
thereto, involving game fish, through the use of a license issued
pursuant to the commercial fishing laws; or
(4) Upon conviction within this state of a person for violation
of ORS 164.043 to 164.065 when the subject of the theft is
commercial fishing crab rings or crab pots, or the crabs taken
therefrom.
SECTION 289. ORS 508.490 is amended to read:
508.490. Except for vessel licenses prescribed in ORS 508.260
and vessel permits prescribed in ORS 508.285, 508.470, 508.775 to
508.796, 508.801 to 508.825, 508.880, 508.883 and 508.889 to
508.910, the { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } may, in its
discretion, refuse the issuance of any license issued under the
authority of the commission or the
{ - State Fish and Wildlife Director - } { + Director of the
Oregon Department of Natural Resources + } during any period not
to exceed two years from the date of the license revocation
order:
(1) Upon conviction within this state of any person of
violation of any of the commercial fishing laws or rules after
the person has once been convicted and penalized under ORS
508.485; or
(2) Upon receiving notice from the agency that regulates
commercial fishing in the State of Washington of the conviction
of any person in that state of an offense that was a violation of
Columbia River commercial fishing rules adopted pursuant to the
Columbia River Compact and that if committed in this state would
be grounds for refusal to issue a license pursuant to subsection
(1) of this section.
SECTION 290. ORS 508.495 is amended to read:
508.495. Upon the receipt of a fee of $16.50 and the filing of
an affidavit that a license issued under authority of ORS 508.406
has been lost or destroyed, the { - State Fish and Wildlife
Director - } { + Director of the Oregon Department of Natural
Resources + } or the authorized agent of the director shall issue
a certificate that such license has been issued and has been lost
or destroyed. Except as provided in ORS 508.260, the certificate
may be used in lieu of the lost or destroyed license.
SECTION 291. ORS 508.500 is amended to read:
508.500. No person shall:
(1) Alter, borrow or loan to any other person any license or
permit issued by the department.
(2) In applying for a license or permit issued by the
{ - State Department of Fish and Wildlife - } { + Oregon
Department of Natural Resources + } knowingly make any false
statement of any information required by the application
regarding the person in whose name the license or permit is to be
issued.
(3) Possess any license or permit that has been altered,
borrowed or loaned or for which any false statements were
knowingly made in applying therefor.
SECTION 292. ORS 508.505 is amended to read:
508.505. (1) Additional fees shall be collected by the
{ - State Fish and Wildlife Director - } { + Director of the
Oregon Department of Natural Resources + } in the amount
prescribed by this section, except as provided in ORS 508.510.
Every person operating within the state as a canner, buyer, bait
dealer or wholesaler of any food fish or shellfish shall pay, in
addition to all other licenses or fees provided by law, a fee
equal to the value of the food fish at the point of landing
multiplied by the following rates:
(a) All salmon and steelhead, 3.15 percent.
(b) All black rockfish, blue rockfish and nearshore fish, five
percent.
(c) All other food fish and shellfish, 2.25 percent.
(d) All tuna, 1.09 percent.
(2) Only live, fresh or frozen in the round or dressed food
fish or shellfish are subject to the fees provided in this
section. 'Dressed' includes but is not limited to beheaded,
gutted, filleted, loined or shucked. However, frozen food fish or
frozen shellfish received in a wrapped package to which a legible
label is stamped or printed showing the name, address, brand or
trade name of the original processor or wholesale distributor
under which the package is marketed and the kind of frozen food
fish or frozen shellfish contained therein, for distribution and
ultimate sale in the original package are not subject to the fees
provided in this section.
SECTION 293. ORS 508.515 is amended to read:
508.515. (1) The fee required by ORS 508.505 shall be paid to
the { - State Fish and Wildlife Director - } { + Director of
the Oregon Department of Natural Resources + } on or before the
20th day of each calendar month for the preceding calendar month.
(2) The fee shall be accompanied by a report showing the total
number of pounds of all varieties of food fish, stated separately
upon blanks furnished by the director, and the value at the point
of landing.
(3) In the event that such fee is not paid within the time for
payment provided in subsection (1) of this section, there shall
be added as a late payment charge a sum equal to five percent of
the unpaid fees or $5, whichever is greater, and there shall be
charged an interest rate of one percent per month until the
principal and interest is paid.
(4) Notwithstanding subsection (1), (2) or (3) of this section,
the { - State Fish and Wildlife Commission - } { + Oregon
Natural Resources Commission + } may waive or extend payment of
any fees required by ORS 508.505 amounting to less than $10
during any calendar year.
SECTION 294. ORS 508.520 is amended to read:
508.520. It is the intention that only one fee based on the
value of the fish at the point of landing shall be collected for
each fish purchased or received, and in order that this end may
be accomplished the { - State Fish and Wildlife Commission and
the State Fish and Wildlife Director - } { + Director of the
Oregon Department of Natural Resources and the Oregon Natural
Resources Commission + } may determine finally any dispute
arising out of the operation and enforcement of ORS 508.505.
SECTION 295. ORS 508.525 is amended to read:
508.525. The fee required by ORS 508.505 constitutes a first
lien upon the cannery, packing plant, scow, boat and its
equipment used in the canning, receiving or transporting of the
fish. This lien may be foreclosed by the { - State Fish and
Wildlife Commission - } { + Oregon Natural Resources
Commission + } in the name of the state by a suit in equity in
the circuit court of the county in which the property upon which
a lien is given by this section is situated. If situated in two
or more counties the court first acquiring jurisdiction of a part
of the property shall have jurisdiction of all the property
described in such foreclosure suit.
SECTION 296. ORS 508.530 is amended to read:
508.530. (1) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } may make such rules
and require such reports to be made as, in its judgment, are
necessary to { - insure - } { + ensure + } the collection and
payment of the fee required by ORS 508.505.
(2) It is unlawful for any person to falsify any of the reports
or to violate any of the rules made or required by the
commission.
SECTION 297. ORS 508.535 is amended to read:
508.535. (1) Every fish canner, fish buyer, retail fish dealer,
fish bait dealer or wholesale fish dealer shall keep a record, of
all food fish received and bought, in accordance with rules
promulgated by the { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + }. Such information
may be required as is necessary to enable the commission to carry
out its duties of conservation, protection, administration or
enforcement under the commercial fishing laws without imposing
undue hardship on the licensees.
(2) At least one copy of this record shall be kept:
(a) On each boat, vessel, scow, pickup boat or other craft,
truck, automobile, motor vehicle or other vehicle of any kind
whatsoever used in buying, receiving or transporting the fish.
(b) By the canner, buyer, retailer, fish bait dealer or
wholesaler.
(3) This record is subject to inspection by the
{ - commissioners, the State Fish and Wildlife Director - }
{ + commission, the Director of the Oregon Department of Natural
Resources + }, the authorized agent of the director, or any duly
authorized police officer. This record shall be transmitted to
the office of the director at such times and in such manner as
the commission directs.
(4) Every person shall always keep open to inspection by the
commission or { - its - } { + an authorized + } agent any
books, records, papers or memoranda { - which - }
{ + that + } are pertinent to the administration of ORS 508.505
to 508.540. For the purpose of ascertaining the correctness of
any fee record or report or the number of pounds or value of fish
upon which the additional fee is based or such other information
as may be necessary to the administration of ORS 508.505 to
508.540, the commission or { - its - } { + an authorized + }
agent may inspect such books, records, papers or memoranda.
(5) Restaurants licensed under ORS 624.020 shall keep a record
of all fresh or frozen fish received or bought while such fish
are in the restaurant's possession. This record shall be subject
to inspection by the { - commissioners - } { +
commission + }, the director, { - the - } { + an + }
authorized agent { - of the director - } , or any duly
authorized police officer. An invoice or receipt shall be
adequate for the purposes of this subsection.
SECTION 298. ORS 508.540 is amended to read:
508.540. (1) In addition to the penalty prescribed by ORS
506.991, the { - State Fish and Wildlife Director, under the
authority of the State Fish and Wildlife Commission, - }
{ + Director of the Oregon Department of Natural Resources + }
may suspend or revoke any license for which a fee is required
under ORS 508.285 if the person holding the license fails to keep
the record required by ORS 508.535 or fails to submit the books,
records, papers or memoranda of the person for inspection,
pursuant to ORS 508.535 (4), to any member of the commission or
any of its representatives presenting written authority from the
commission.
(2) The { - State Fish and Wildlife - } director may
suspend, deny the renewal of or refuse to issue any license for
which a fee is required under ORS 508.285 if the person holding
or applying for the license is more than 60 days past due in an
amount of more than $400 owed:
(a) From fees pursuant to ORS 508.505;
(b) From overage, incidental catch or bycatch charges; or
(c) To any food fish commodity commission established under ORS
chapter 576.
(3) The { - State Fish and Wildlife Commission - }
{ + director and the Oregon Natural Resources Commission + } may
contact any food fish commodity commission at any time to obtain
lists of persons who owe past due fees to the commodity
commission.
(4) For purposes of this section:
(a) 'Bycatch' means the unintended taking of a species of food
fish that:
(A) Occurs while targeting another species of food fish; and
(B) Is prohibited due to time, place, manner, regulations or
quota restrictions.
(b) 'Incidental catch' means the unintended legal taking of a
species of food fish that occurs while targeting another species
of food fish.
(c) 'Overage' means the amount of food fish taken for
commercial purposes that exceeds the amount allowed by federal
and state law.
SECTION 299. ORS 508.550 is amended to read:
508.550. Notwithstanding any other provision of this chapter, a
person who holds a valid Oregon commercial fishing license may
sell any species of food fish taken in lawful commercial fishing
activity directly from the license holder's boat, subject to the
following conditions:
(1) The person must first obtain from the { - State Fish and
Wildlife Commission - } { + Oregon Natural Resources
Commission + } an annual limited fish seller permit for such
sales, the fee for which is $40. The commission by rule may limit
the number of permits available for any species of food fish.
(2) Prior to making any sale pursuant to this section, the
person must notify the commission, in such manner as the
commission prescribes, of the estimated number of food fish on
board the boat and of the location where the sale is to take
place.
(3) Within seven days of making any sale pursuant to this
section, the person shall submit to the commission a report
thereof, in such form as the commission may prescribe. The person
must pay the fees required as prescribed in ORS 508.505 to
508.540, or in such other manner as the commission by rule may
prescribe.
(4) The person may sell food fish from any port and dock
location in this state.
(5) If a person fails to comply with subsection (3) of this
section, the commission may revoke and thereafter refuse to issue
another limited fish seller permit.
SECTION 300. ORS 508.700 is amended to read:
508.700. (1) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } may issue a permit,
subject to such restrictions and regulations as the commission
deems desirable, to any person to construct and operate a
hatchery for:
(a) Chinook salmon, also known as Oncorhynchus tshawytscha; or
(b) Chum salmon, also known as Oncorhynchus keta or dog salmon;
or
(c) Silver salmon, also known as Oncorhynchus kisutch or coho
salmon; or
(d) Pink salmon, also known as Oncorhynchus gorbuscha or
humpback salmon.
(2) The application for a permit to construct and operate a
chum salmon, chinook salmon, silver salmon, or pink salmon
hatchery shall include an application fee of $3,000.
SECTION 301. ORS 508.705 is amended to read:
508.705. (1) Prior to issuance of any permit by the { - State
Fish and Wildlife Commission - } { + Oregon Natural Resources
Commission + }, a public hearing shall be held. Notice of the
hearing shall be published at least once and at least 10 days
prior to the hearing in a newspaper of general circulation in
each of the counties in which the hearing is to be held, or if no
such newspaper is published in that county or counties, then such
a newspaper in an adjoining county.
(2) The hearing shall be conducted by either the commission or
a representative designated by the commission.
SECTION 302. ORS 508.710 is amended to read:
508.710. No permit shall be issued:
(1) { - Which - } { + That + } may tend to deplete any
natural run of anadromous fish or any population of resident game
fish.
(2) { - Which - } { + that + } may result in waste or
deterioration of fish.
(3) If the proposed operation is to be located on the same
stream or river or tributary thereof on which a state or federal
fish culture facility is established or is planned to be
established.
(4) If the proposed operation is not consistent with sound
resource management and is not in close proximity to the ocean.
(5) If the { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } determines the
applicant does not have the financial capability to successfully
construct and operate the hatchery or may not properly conduct
the operation authorized under the permit.
SECTION 303. ORS 508.715 is amended to read:
508.715. Any permit granted by the { - State Fish and
Wildlife Commission - } { + Oregon Natural Resources
Commission + } pursuant to ORS 508.700 to 508.745 shall contain
at least the following conditions:
(1) All propagated fish released into state waters shall be
marked annually at no less than the level of marking of the same
species of fish by hatcheries operated by the commission for the
purpose of determining contributions to ocean fisheries.
(2) All propagated coho and chinook salmon released into state
waters shall be marked annually, consistent with subsection (8)
of this section, at a minimum level necessary to determine the
proportion of straying of hatchery coho and chinook salmon into
the spawning beds of natural and hatchery produced native stocks
of salmon. However, the commission shall not require private
hatcheries to meet marking standards that the commission would
not apply to its own operations in similar circumstances.
(3) Prior to release into state waters, the fish must be
subject to examination by a qualified fish pathologist approved
by the commission to determine that { - they - } { + the
fish + } are not diseased or infected with any disease
{ - which - } { + that, + } in the opinion of the
commission { + , + } may be detrimental to the state fishery
resources. Cost of such examination shall be paid by the
permittee. No fish shall be released without written approval
from the commission. The commission may require diseased fish to
be destroyed. The commission shall not suffer civil or criminal
liability for any fish destroyed under this section.
(4) The permittee may be authorized by the commission to divert
all fish returning to the stream to an inspection area, the
location of such area to be approved by the commission, to
examine all fish for the purpose of identifying propagated fish.
(5) Notwithstanding the provisions of ORS chapters 509 and 511,
the permittee shall have the right to take for commercial
purposes, only those fish the commission determines were
propagated by the permittee, and the commission's decision is
final.
(6) It shall be unlawful for the permittee to select stocks of
fish or to genetically alter the life history or habits of
propagated fish in a way the { - State Department of Fish and
Wildlife - } { + Oregon Department of Natural Resources + }
determines is inconsistent with the provisions of ORS 496.012 or
506.109.
(7) It shall be unlawful for the permittee to conduct any
activity not authorized by the permit or fail to conduct
activities required by the permit without approval of the
commission after public hearings.
(8) The permittee shall pay all reasonable costs incurred by
the commission as a result of the operation of the private
hatchery.
SECTION 304. ORS 508.718 is amended to read:
508.718. (1) The Legislative Assembly finds that protecting the
natural runs and genetic diversity of anadromous fish is
essential to the long-term health of Oregon's natural resources
and sport and commercial fisheries.
(2) Not later than January 1, 1990, the { - State Department
of Fish and Wildlife - } { + Oregon Department of Natural
Resources + } shall:
(a) Develop and implement monitoring programs, consistent with
ORS 508.715 (8) at a minimum level necessary to determine the
proportion of straying of hatchery fish into the spawning beds of
natural and hatchery produced native stocks of salmon.
(b) Utilizing the best available scientific evidence, adopt
rules, after public hearing, that determine the proportion of
straying that by indicator stock is likely to cause deterioration
of the genetic diversity and habitat necessary to maintain
long-term species viability or that causes a deterioration of
natural or native stocks of salmon.
(3) The Legislative Assembly further finds that private
hatcheries are a significant part of Oregon's salmon resource and
that the Legislative Assembly relies on the { - State Fish and
Wildlife Commission - } { + Oregon Natural Resources
Commission + } to monitor and regulate private hatcheries in a
way that will optimize { - their - } { + the + } long-term
contribution { + of private hatcheries + } to Oregon's salmon
resource in conformity with the findings under subsection (1) of
this section.
SECTION 305. ORS 508.720 is amended to read:
508.720. (1) If the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + }
finds that the operation described in the permit is not in the
best public interest, { - it - } { + the commission + } shall
alter the conditions of the permit to mitigate such adverse
effects or may cause an orderly termination of the operation
under the permit. Proceedings to cause such alteration or
termination shall be conducted in accordance with ORS chapter
183. An orderly termination shall not exceed a four-year period
and shall culminate in the revocation of the permit in its
entirety. During this period the permittee may continue to
examine and take specified propagated chum salmon, chinook
salmon, silver salmon or pink salmon according to the provisions
of the permit but may not release additional fish.
(2) If the commission finds the operation has caused
deterioration of the natural run of anadromous fish or any
population of resident game fish in the waters covered by the
permit, { - it - } { + the commission + } may require the
permittee to return the fish populations to the same condition
that existed prior to issuance of the permit. If the permittee
fails to take appropriate action, the commission shall take such
action and the permittee shall bear any cost incurred by the
commission.
SECTION 306. ORS 508.725 is amended to read:
508.725. (1) { - All fish released under ORS 508.700 to
508.745 - } During the time { - they - } { + all fish
released under ORS 508.700 to 508.745 + } are in the wild { + ,
the fish + } will be the property of { - the - } { + this + }
state and may be taken under angling or commercial fishing laws
of this state until { - they - } { + the fish + } return to
the private hatchery.
(2) In carrying out the provisions of ORS 496.162 or 506.129,
the { - State Fish and Wildlife Commission shall - }
{ + Oregon Natural Resources Commission may + } not consider
evidence of or argument regarding the prospect of adverse
economic impact on the activities of hatcheries for which permits
have been issued unless the commission determines that it is
necessary in order to comply with the policies set forth in ORS
496.012 or 506.109.
SECTION 307. ORS 508.730 is amended to read:
508.730. After first ensuring that all natural and artificial
fish production needs of the { - State Department of Fish and
Wildlife - } { + Oregon Department of Natural Resources + }
have been met, the { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } may provide at a
reasonable fee chum salmon, chinook salmon, silver salmon or pink
salmon, or the sexual products therefrom, for the needs of any
person granted a permit by the commission pursuant to ORS 508.700
to 508.745 in the following order of priority:
(1) The needs of the salmon and trout enhancement program.
(2) The needs of fish propagation facilities operated under
contract or agreement with other state or federal agencies, local
governments, special districts and nonprofit organizations.
(3) The needs of all federal and other fish propagation
facilities located on the Columbia River and its tributaries.
SECTION 308. ORS 508.735 is amended to read:
508.735. The provisions of this chapter shall apply to the
taking and sale of chum salmon, chinook salmon, silver salmon or
pink salmon artificially reared under any permit granted by the
{ - State Fish and Wildlife Commission - } { + Oregon Natural
Resources Commission + } pursuant to ORS 508.700 to 508.745.
SECTION 309. ORS 508.745 is amended to read:
508.745. All moneys received by the { - State Fish and
Wildlife Commission - } { + Oregon Natural Resources
Commission + } under ORS 508.700 to 508.745 except those under
ORS 508.735 shall be paid over to the State Treasurer to be held
in a suspense account established under ORS 293.445. After the
payment of costs of administration incurred by the commission in
carrying out the provisions of ORS 508.700 to 508.745, that
portion of the balance of the moneys in this suspense account as
of the end of each fiscal year shall be deposited to the General
Fund for general governmental purposes.
SECTION 310. ORS 508.755 is amended to read:
508.755. (1) There is established within the { - State
Department of Fish and Wildlife - } { + Oregon Department of
Natural Resources + } the Commercial Fishery Permit Board. The
board shall consist of members appointed by the { - State Fish
and Wildlife Commission - } { + Oregon Natural Resources
Commission + } as follows:
(a) Three members shall be chosen to represent the Columbia
River gillnet salmon fishing industry.
(b) Three members shall be chosen to represent the ocean troll
salmon fishing industry.
(c) Three members shall be chosen to represent the ocean pink
shrimp fishing industry.
(d) Three members shall be chosen to represent the Yaquina Bay
roe-herring fishing industry.
(e) Three members shall be chosen to represent the sea urchin
commercial fishery.
(f) Three members shall be chosen to represent the ocean
Dungeness crab fishing industry.
(g) Three members shall be chosen to represent the black
rockfish and blue rockfish fishing industry and the nearshore
fish fishing industry.
(h) Three members shall be chosen to represent developmental
fisheries as described in ORS 506.450 to 506.465.
(i) Three members shall be chosen to represent each restricted
participation system or restricted vessel permit system
established by rule of the commission under ORS 506.462.
(j) Two members shall be chosen to represent the public.
(2) A member of the board shall receive no compensation for
services as a member. However, subject to any applicable law
regulating travel and other expenses of state officers and
employees, a member shall be reimbursed for travel and other
expenses incurred in the performance of official duties.
(3) The board shall select such officers, for such terms and
with such duties and powers, as the board considers necessary for
the performance of those offices.
(4) A majority of the members of the board constitutes a quorum
for the transaction of business.
(5) The board shall meet at such times and places as may be
determined by the chairperson or by a majority of the members of
the board.
(6) Notwithstanding any other provision of law:
(a) Members of the board representing the Columbia River
gillnet salmon fishing industry shall participate in actions of
the board only on matters arising under ORS 508.285, 508.470 and
508.775 to 508.796.
(b) Members of the board representing the ocean troll salmon
fishing industry shall participate in actions of the board only
on matters arising under ORS 508.801 to 508.825.
(c) Members of the board representing the ocean pink shrimp
fishing industry shall participate in actions of the board only
on matters arising under ORS 508.880, 508.883 and 508.889 to
508.910.
(d) Members of the board representing the Yaquina Bay
roe-herring fishing industry shall participate in actions of the
board only on matters arising under ORS 508.765.
(e) Members of the board representing the sea urchin commercial
fishery shall participate in actions of the board only on matters
arising under ORS 508.760.
(f) Members of the board representing the ocean Dungeness crab
fishing industry shall participate in actions of the board only
on matters arising under ORS 508.921.
(g) Members of the board representing the black rockfish and
blue rockfish fishing industry and the nearshore fish fishing
industry shall participate in actions of the board only on
matters arising under ORS 508.947, 508.957 or 508.960.
(h) Members of the board representing developmental fisheries
shall participate in actions of the board only on matters arising
under ORS 506.450 to 506.465.
(i) Members of the board representing a restricted
participation system or a restricted vessel permit system
established by rule of the commission under ORS 506.462 shall
participate in actions of the board only on matters related to
that system.
SECTION 311. ORS 508.760 is amended to read:
508.760. (1) Notwithstanding any other provision of the
commercial fishing laws, in order to provide a sea urchin
(Strongylocentrotus franciscanus, S. purpuratus and S.
droebachiensis) commercial fishery with optimum profits to those
engaged in the fishery and to prevent a concentration of fishing
effort that would deplete the resource, the { - State Fish and
Wildlife Commission - } { + Oregon Natural Resources
Commission + }, by rule, shall establish a system for limiting
participation in the sea urchin commercial fishery. Any such
system may include, but is not limited to, provisions on the
following matters:
(a) Establishment of criteria for initial entry into fishery
participation and for annual qualification for participation
thereafter.
(b) Establishment of terms and conditions for transferring
participation rights.
(2)(a) The annual fee to participate in the sea urchin fishery
is:
(A) $100 for resident applicants.
(B) $290 for nonresident applicants.
(b) A fee of $100 shall be charged for each transfer of
participation rights under this section.
SECTION 312. ORS 508.762 is amended to read:
508.762. (1) A person whose application for renewal or transfer
of a permit established pursuant to ORS 508.760 is denied may
make written request to the Commercial Fishery Permit Board for
review of the denial. The review provided in this subsection is
in lieu of any such review by the { - State Department of Fish
and Wildlife or the State Fish and Wildlife Commission - }
{ + Oregon Department of Natural Resources or the Oregon Natural
Resources Commission + }. The request shall be in such form and
shall contain such information as the board considers
appropriate. The request shall be accompanied by a nonrefundable
fee of $125. Such fee shall apply toward the permit fee of an
applicant seeking review who is successful in obtaining a permit.
(2) The board shall review a denial of an application for
renewal or request to transfer a permit according to the
applicable provisions of ORS chapter 183. Orders issued by the
board are not subject to review by the commission, but may be
appealed as provided in ORS 183.480 to 183.500.
(3) According to the applicable provisions of ORS chapter 183,
the board may promulgate such rules as { - it - } { + the
board + } considers necessary to carry out its duties, functions
and powers.
(4) The board may delegate to the department its authority to
waive requirements for renewal of permits.
SECTION 313. ORS 508.765 is amended to read:
508.765. (1) Notwithstanding any other provision of the
commercial fishing laws, in order to provide a roe-herring
commercial fishery with optimum profits to those engaged in the
fishery and to prevent a concentration of fishing effort that
would deplete the resource, the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + }, by
rule, shall establish a system for limiting participation in the
roe-herring commercial fishing. Any such system may include, but
is not limited to, provisions on the following matters:
(a) Establishment of criteria for initial entry into fishery
participation and for annual qualification for participation
thereafter.
(b) Establishment of terms and conditions for transferring
participation rights.
(2)(a) The annual fee to participate in the roe-herring fishery
is:
(A) $125 for resident applicants.
(B) $290 for nonresident applicants.
(b) A fee of $100 shall be charged for each transfer of
participation rights under this section.
(3)(a) A denial by the commission of an application for renewal
of any permit or transfer of any permit established under this
section shall be subject to review by the Commercial Fishery
Permit Board upon written request of the applicant. The review
provided under this subsection shall be in lieu of any such
review by the commission or the { - State Department of Fish
and Wildlife - } { + Oregon Department of Natural
Resources + }.
(b) Request for review under this subsection shall be on such
forms and contain such information as the board shall determine.
Requests for review shall be accompanied by a $125 fee, which fee
shall apply toward any applicable permit fees resulting from an
order of the board in favor of the requesting applicant.
(4) Orders issued by the board are not subject to review by the
commission but may be appealed as provided in ORS chapter 183.
(5) According to the provisions of ORS chapter 183, the board
shall adopt such rules as { - it - } { + the board + }
determines necessary to carry out its duties, functions and
powers.
SECTION 314. ORS 508.781 is amended to read:
508.781. An individual who obtained the permit required by ORS
508.775 for a particular calendar year is eligible to obtain
renewal of the permit in a subsequent calendar year, upon
application and payment of the fees therefor by December 31 of
the permit year or by such date as may be specified by rule of
the
{ - State Department of Fish and Wildlife - } { + Oregon
Department of Natural Resources + }.
SECTION 315. ORS 508.784 is amended to read:
508.784. In making determinations regarding renewal of the
permits required by ORS 508.775, the { - State Department of
Fish and Wildlife - } { + Oregon Department of Natural
Resources + } and the Commercial Fishery Permit Board may
consider as evidence of permit qualifications or requirements
department records and such receipts, accounts, contracts and
other business records of private parties as the department or
the board consider reliable evidence of the qualifications or
requirements in question.
SECTION 316. ORS 508.790 is amended to read:
508.790. (1) The annual fee for the vessel permit required by
ORS 508.775 is:
(a) $26 for resident applicants.
(b) $216 for nonresident applicants.
(2) Applications shall be in such form and contain such
information as the { - State Department of Fish and
Wildlife - } { + Oregon Department of Natural Resources + }, by
rule, may prescribe.
SECTION 317. ORS 508.792 is amended to read:
508.792. (1) Except as provided in subsection (2) of this
section, if the number of permits renewed under ORS 508.781 falls
below 200, the { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + } shall issue
permits by a lottery system for vessels that do not meet the
requirements of ORS 508.781. However, the number of permits
issued pursuant to any such lottery system shall not increase the
number of permits issued to a total number greater than 200.
(2) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } may, in its
discretion, suspend the lottery for up to two years. Suspension
shall be based on the commission's assessment of the condition of
the resource and shall account for the recommendations of the
Gillnet Salmon Review Board.
SECTION 318. ORS 508.793 is amended to read:
508.793. (1) The vessel permit required by ORS 508.775 is
transferable:
(a) To a replacement vessel of the permit holder.
(b) To the purchaser of the vessel when the vessel is sold.
(2) Notwithstanding subsection (1) of this section, upon
request of a permit holder, the { - State Department of Fish
and Wildlife - } { + Oregon Department of Natural Resources + }
may authorize transfer of a permit to a replacement vessel owned
by an individual other than the permit holder. However, any
transfer of a permit away from a vessel without the written
consent of each person holding a security interest in such vessel
is void.
(3) A fee of $100 shall be charged for each transfer of a
vessel permit under this section.
SECTION 319. ORS 508.796 is amended to read:
508.796. (1) An individual whose application for renewal of the
permit required by ORS 508.775 is denied by the { - State
Department of Fish and Wildlife - } { + Oregon Department of
Natural Resources + } may make written request to the Commercial
Fishery Permit Board for review of the denial. The review
provided in this subsection is in lieu of any such review by the
department or the
{ - State Fish and Wildlife Commission - } { + Oregon Natural
Resources Commission + }. The request shall be in such form and
shall contain such information as the board considers
appropriate. The request shall be accompanied by a nonrefundable
fee of $125. Such fees shall apply toward the permit fee of
successful applicants.
(2) In accordance with any applicable provision of ORS chapter
183, the board shall review denials of applications for renewal
of permits. Orders issued by the board are not subject to review
by the commission, but may be appealed as provided in ORS 183.480
to 183.500. The board may waive requirements for renewal of
permits if the board finds:
(a) That the individual for personal or economic reasons chose
to actively commercially fish in some other fishery during the
Columbia River gillnet salmon seasons; or
(b) That the individual failed to meet the requirements as the
result of illness, accident or other circumstances beyond the
individual's control.
(3) In accordance with any applicable provision of ORS chapter
183, the board may promulgate such rules as it considers
necessary to carry out its duties, functions and powers.
(4) The board may delegate to the department its authority to
waive requirements for renewal of permits.
(5) Notwithstanding any other provision of law, without the
prior approval of the Commercial Fishery Permit Board, a Columbia
River gillnet salmon vessel permit acquired as a result of a
waiver pursuant to subsection (2) of this section may not be
transferred to another vessel until the vessel for which the
permit was issued has been used in the Columbia River gillnet
salmon fishery for two or more calendar years.
SECTION 320. ORS 508.807 is amended to read:
508.807. (1) An individual who obtained the permit required by
ORS 508.801 for a particular calendar year is eligible to obtain
renewal of the permit in a subsequent calendar year upon
obtaining the annual boat license referred to in ORS 508.285. The
permit must be renewed, and the boat license obtained, not later
than December 31 of each year or such date as may be established
by rule of the { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + }.
(2) Notwithstanding any other provision of law, an individual
who permanently loses the services of a vessel through capsizing,
sinking, fire, collision or other catastrophic accident has a
period of two years from the date of loss to replace the vessel
without losing eligibility to renew the vessel permit.
SECTION 321. ORS 508.808 is amended to read:
508.808. (1) In order to be able to renew the vessel permit in
any subsequent year, an individual is not required to renew the
boat license as provided in ORS 508.807 if:
(a) In the year prior to renewal there was not an ocean troll
salmon season of more than 20 consecutive days between May 1 and
July 31 in the Pacific Fisheries Management Council management
area adjacent to the port where the vessel lands fish; and
(b) The vessel landed salmon in only one single Oregon port and
no other during the preceding three years in which there was a
salmon season of more than 20 consecutive days between May 1 and
July 31 in the Pacific Fisheries Management Council management
area adjacent to the port.
(2) The { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + } may, upon written
request by the purchaser, refund any amount paid for a boat
license for a boat that qualifies under the provisions of
subsection (1) of this section.
SECTION 322. ORS 508.810 is amended to read:
508.810. In making determinations regarding renewal of the
permits required by ORS 508.801, the { - State Department of
Fish and Wildlife - } { + Oregon Department of Natural
Resources + } and the Commercial Fishery Permit Board may
consider as evidence of permit qualifications or requirements
department records and such receipts, accounts, contracts and
other business records of private parties as the department or
the board considers reliable evidence of the qualifications or
requirements in question.
SECTION 323. ORS 508.816 is amended to read:
508.816. (1) The annual fee for the vessel permit required by
ORS 508.801 is:
(a) $35 for resident applicants.
(b) $225 for nonresident applicants.
(2) Applications shall be in such form and contain such
information as the { - State Department of Fish and
Wildlife - } { + Oregon Department of Natural Resources + }, by
rule, may prescribe.
SECTION 324. ORS 508.819 is amended to read:
508.819. (1)(a) Except as provided in subsections (2) and (3)
of this section, if the number of permits renewed under ORS
508.807 falls below 1,000, the { - State Department of Fish and
Wildlife - } { + Oregon Department of Natural Resources + }
shall issue permits by a lottery system for vessels that do not
meet the requirements of ORS 508.807. However, the number of
permits issued pursuant to any such lottery system may not
increase the number of permits issued to a total number greater
than 1,000.
(b) In issuing permits under the lottery system, the department
shall issue permits for vessels based on the following
categories:
(A) Vessels less than or equal to 30 feet;
(B) Vessels greater than 30 feet and less than or equal to 42
feet; or
(C) Vessels greater than 42 feet.
(c) When a vessel in one category does not renew its permit,
only another vessel in the same category, or a vessel in a
category for vessels of a smaller size, may qualify for the
permit.
(d) When the department holds a lottery under this section, the
following fees shall be charged for each vessel permit that the
department issues as a result of the lottery:
(A) For vessels less than or equal to 30 feet, $250.
(B) For vessels greater than 30 feet and less than or equal to
42 feet, $500.
(C) For vessels greater than 42 feet, $750.
(2) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } may, in its
discretion, suspend the lottery for up to two years. Suspension
shall be based on the commission's assessment of the condition of
the resource and shall account for the recommendations of the
Troll Salmon Permit Review Board.
(3) The department shall consider a permit transferred to,
purchased by or otherwise held by the federal government as a
permit renewed under ORS 508.807. A permit transferred to,
purchased by or otherwise held by the federal government is a
permit under the limit of 1,000 permits established by this
section.
SECTION 325. ORS 508.822 is amended to read:
508.822. (1) The vessel permit required by ORS 508.801 is
transferable:
(a) To a replacement vessel of the permit holder.
(b) To the purchaser of the vessel when the vessel is sold.
(c) Upon request of a permit holder, transfer of a permit to a
replacement vessel owned by an individual other than the permit
holder if authorized by the { - State Department of Fish and
Wildlife - } { + Oregon Department of Natural Resources + }.
However, any transfer of a permit away from a vessel without the
written consent of each person holding a security interest in
such vessel is void.
(2) Permits may be transferred between vessels where both
vessels fall within any one of the following categories:
(a) Vessels less than or equal to 30 feet;
(b) Vessels greater than 30 feet and less than or equal to 42
feet; or
(c) Vessels greater than 42 feet.
(3) A permit may be transferred from a vessel that is in one of
the categories defined in subsection (2) of this section to a
vessel that is in a different category provided that no vessel
permit may be transferred to a vessel more than five feet longer
than the vessel from which the permit is being transferred.
(4)(a) Notwithstanding subsection (3) of this section and
except for transfer to another vessel owned by the current permit
holder, a vessel permit may be transferred to a vessel over 30
feet in length only if, in the calendar year prior to transfer,
the vessel from which the permit is being transferred was used in
the ocean troll salmon fishery in Oregon, Alaska, Washington or
California to take 100 pounds of salmon. The department, by rule,
may require proof of vessel ownership prior to the transfer of a
permit away from any vessel. This section shall not be effective
in the calendar year following a year in which the number of
permits issued pursuant to ORS 508.801 is less than 1,000.
(b) A vessel permit may not be transferred more than once in
any 12-month period. However, the Commercial Fishery Permit Board
may waive the waiting period for additional transfer if the board
finds that strict adherence to the waiting period would create
undue hardship for the individual seeking transfer of the permit.
(5) Persons requesting the transfer of a permit pursuant to
subsection (1)(c) of this section shall provide to the department
copies of documents or state registration for each vessel as
proof of the length and ownership.
(6) A fee of $100 shall be charged for each transfer of a
vessel permit under this section.
SECTION 326. ORS 508.825 is amended to read:
508.825. (1) An individual whose application for renewal or
transfer of the permit required by ORS 508.801 is denied by the
{ - State Department of Fish and Wildlife - } { + Oregon
Department of Natural Resources + } may make written request to
the Commercial Fishery Permit Board for review of the denial. The
review provided in this subsection is in lieu of any such review
by the department or the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + }. The
request shall be in such form and shall contain such information
as the board considers appropriate. The request shall be
accompanied by a nonrefundable fee of $125. Such fee shall apply
toward the permit fee of successful applicants.
(2) In accordance with any applicable provision of ORS chapter
183, the board shall review denials of applications for renewal
or transfer of permits. Orders issued by the board are not
subject to review by the commission, but may be appealed as
provided in ORS 183.480 to 183.540. The board may waive
requirements for renewal or transfer of permits if the board
finds that the individual fails to meet the requirements as the
result of illness, accident or other circumstances beyond the
individual's control.
(3) In accordance with any applicable provision of ORS chapter
183, the board may promulgate such rules as it considers
necessary to carry out its duties, functions and powers.
(4) The board may delegate to the department its authority to
waive requirements for renewal or transfer of permits.
SECTION 327. ORS 508.828 is amended to read:
508.828. Notwithstanding ORS 508.801 to 508.825, 508.880,
508.883 and 508.889 to 508.910, subject to ORS 508.316, a vessel
not having a permit may in an emergency and with the approval of
the { - State Department of Fish and Wildlife - } { + Oregon
Department of Natural Resources + } land salmon by purchase of a
single delivery license.
SECTION 328. ORS 508.852 is amended to read:
508.852. In making determinations regarding renewal of the
permits required by ORS 508.840, the { - State Department of
Fish and Wildlife - } { + Oregon Department of Natural
Resources + } and the Commercial Fishery Permit Board may
consider as evidence of permit qualifications or requirements
department records and such receipts, accounts, contracts and
other business records of private parties as the department or
the board considers reliable evidence of the qualifications or
requirements in question.
SECTION 329. ORS 508.861 is amended to read:
508.861. The { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + } may establish by
rule a lottery system for issuing permits to vessels that do not
meet the requirements of ORS 508.849. The department, by rule,
shall determine the number of permits and the criteria for
issuance.
SECTION 330. ORS 508.867 is amended to read:
508.867. (1) Notwithstanding ORS 508.755 (6)(b) and (c), an
individual whose application for renewal of the permit required
by ORS 508.840 is denied by the { - State Department of Fish
and Wildlife - } { + Oregon Department of Natural Resources + }
may make written request to the Commercial Fishery Permit Board
for review of the denial. The review provided in this subsection
is in lieu of any such review by the department or the
{ - State Fish and Wildlife Commission - } { + Oregon Natural
Resources Commission + }. The request shall be in such form and
shall contain such information as the board considers
appropriate. The request shall be accompanied by a nonrefundable
fee of $125. Such fee shall apply toward the permit fee of
successful applicants.
(2) In accordance with any applicable provision of ORS chapter
183, the board shall review denials of applications for renewal
of permits. Orders issued by the board are not subject to review
by the commission, but may be appealed as provided in ORS 183.480
to 183.540. The board may waive requirements for renewal of
permits if the board finds that the individual for personal or
economic reasons chooses to actively fish the permit vessel in
some other ocean fishery or if the board finds that the
individual fails to meet the requirements as the result of
illness, accident or other circumstances beyond the individual's
control.
(3) In accordance with any applicable provision of ORS chapter
183, the board may promulgate such rules as it considers
necessary to carry out its duties, functions and powers.
(4) The board may delegate to the department the authority to
waive eligibility requirements for renewal of permits.
SECTION 331. ORS 508.883 is amended to read:
508.883. (1) Notwithstanding ORS 508.880, an individual who
holds valid commercial fishing permits required by or issued
pursuant to the laws of the states of Washington or California to
take pink shrimp may land pink shrimp in this state that were
taken in the ocean pink shrimp fishery without the permit
required by ORS 508.880 if the vessel possesses a single delivery
license referred to in ORS 508.285. However, a single delivery
license may be used to land pink shrimp only once in a 12-month
period as established by rule of the { - State Fish and
Wildlife Director - } { + Director of the Oregon Department of
Natural Resources + }.
(2) Subsection (1) of this section shall apply to a vessel
registered under the laws of another state only while laws or
administrative rules are operative in that state that contain, in
substance or effect, provisions similar to the provisions of
subsection (1) of this section.
SECTION 332. ORS 508.892 is amended to read:
508.892. (1) An individual who obtained the permit required by
ORS 508.880 for a particular calendar year is eligible to obtain
renewal of the permit in a subsequent calendar year upon
application and payment of the fees therefor and upon obtaining
the annual boat license referred to in ORS 508.285. The permit
must be applied for, and the boat license obtained, not later
than December 31 of each year or such date as may be established
by rule of the { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + }.
(2) An individual who permanently loses the services of a
vessel through capsizing, sinking, fire, collision or other
catastrophic accident shall remain eligible to obtain a vessel
permit for a replacement vessel for two years from the date of
loss.
SECTION 333. ORS 508.895 is amended to read:
508.895. In making determinations regarding renewal of the
permits required by ORS 508.880, the { - State Department of
Fish and Wildlife - } { + Oregon Department of Natural
Resources + } and the Commercial Fishery Permit Board may
consider as evidence of permit qualifications or requirements
department records and such receipts, accounts, contracts and
other business records of private parties as the department or
the board considers reliable evidence of the qualifications or
requirements in question.
SECTION 334. ORS 508.901 is amended to read:
508.901. (1) The annual fee for the vessel permit required by
ORS 508.880 is:
(a) $125 for resident applicants.
(b) $290 for nonresident applicants.
(2) Applications shall be in such form and contain such
information as the { - State Department of Fish and
Wildlife - } { + Oregon Department of Natural Resources + }, by
rule, may prescribe.
SECTION 335. ORS 508.904 is amended to read:
508.904. (1) Except as provided in subsection (2) of this
section, if the number of permits renewed under ORS 508.892 falls
below 150, the { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + } shall issue
permits by lottery systems for vessels that do not meet such
requirements, first among those individuals who landed pink
shrimp pursuant to a single delivery license referred to in ORS
508.285, and then among all other individuals making application
therefor. However, the number of permits issued pursuant to any
such lottery system may not increase the total number of permits
issued beyond 150.
(2) The department shall consider a permit transferred to,
purchased by or otherwise held by the federal government as a
permit renewed under ORS 508.892. A permit transferred to,
purchased by or otherwise held by the federal government is a
permit under the limit of 150 permits established by this
section.
SECTION 336. ORS 508.910 is amended to read:
508.910. (1) An individual whose application for renewal of the
permit required by ORS 508.880 is denied by the { - State
Department of Fish and Wildlife - } { + Oregon Department of
Natural Resources + } may make written request to the Commercial
Fishery Permit Board for review of the denial. The review
provided in this subsection is in lieu of any such review by the
department or the
{ - State Fish and Wildlife Commission - } { + Oregon Natural
Resources Commission + }. The request shall be in such form and
shall contain such information as the board considers
appropriate. The request shall be accompanied by a nonrefundable
fee of $125. Such fee shall apply toward the permit fee of
successful applicants.
(2) In accordance with any applicable provision of ORS chapter
183, the board shall review denials of applications for renewal
of permits. Orders issued by the board are not subject to review
by the commission, but may be appealed as provided in ORS 183.480
to 183.540. The board may waive requirements for renewal of
permits if the board finds that the individual fails to meet the
requirements as the result of illness, accident or other
circumstances beyond the individual's control.
(3) In accordance with any applicable provision of ORS chapter
183, the board may promulgate such rules as it considers
necessary to carry out its duties, functions and powers.
(4) The board may delegate to the department its authority to
waive requirements for renewal of permits.
SECTION 337. ORS 508.915 is amended to read:
508.915. The { - State Fish and Wildlife Director - }
{ + Director of the Oregon Department of Natural Resources + }
shall work with the appropriate authorities in the States of
California and Washington to negotiate reciprocal agreements that
would allow vessels registered under the laws of those states to
land pink shrimp in Oregon to the same extent that vessels
registered in Oregon may land pink shrimp in California or
Washington.
SECTION 338. ORS 508.921 is amended to read:
508.921. The Legislative Assembly finds that the Oregon ocean
Dungeness crab fishery is overcapitalized. This
overcapitalization has led to economic destabilization of the
ocean Dungeness crab industry and the coastal communities relying
on the crab harvest and can cause excessive harvesting pressure
on Oregon's ocean Dungeness crab resources. Since the state
legislatures of Washington and California have enacted programs
restricting participation in the ocean Dungeness crab fishery,
the possibility of increased effort in Oregon coastal waters by
displaced vessels is increased. Notwithstanding any other
provision of the commercial fishing laws, in order to promote the
economic well-being of the Oregon ocean Dungeness crab industry
and the coastal communities relying on the harvest, to protect
the livelihood of participants in the Oregon ocean Dungeness crab
fishery who have historically and continuously participated in
the ocean Dungeness crab fishery and to prevent a concentration
of fishing effort, the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + } by
rule shall establish a system for restricting participation in
the Oregon ocean Dungeness crab fishery.
SECTION 339. ORS 508.931 is amended to read:
508.931. (1) The system established under ORS 508.921 shall
provide initial eligibility for vessels to participate in the
ocean Dungeness crab fishery seasons established by the
{ - State Fish and Wildlife Commission - } { + Oregon Natural
Resources Commission + }, beginning on December 1, 1995, with a
transferable ocean Dungeness crab permit only if:
(a) The vessel for which application is made was continuously
licensed pursuant to ORS 508.260 for the calendar years 1991
through 1994, and was used in the ocean Dungeness crab fishery to
lawfully land into Oregon ports at least 500 pounds of ocean
Dungeness crab in each of two crab fishing seasons between
December 1, 1988, and December 31, 1994;
(b) The vessel for which application is made was under
construction between December 1, 1988, and August 14, 1991, for
the purpose of ocean Dungeness crab fishing in waters of this
state, and the vessel lawfully landed into Oregon ports at least
500 pounds of ocean Dungeness crab in each of two crab fishing
seasons between December 1, 1988, and December 31, 1994, and was
licensed as an Oregon vessel from the date of completion;
(c) The vessel for which application is made was used in the
ocean Dungeness crab fishery to lawfully land into Oregon ports
at least 500 pounds of ocean Dungeness crab in each of two crab
fishing seasons between December 1, 1991, and December 31, 1994,
and is owned by a person who, prior to December 31, 1994, sold a
vessel that was used prior to sale in the ocean Dungeness crab
fishery to lawfully land into Oregon ports at least 500 pounds of
ocean Dungeness crab in each of two crab fishing seasons between
December 1, 1988, and December 31, 1994, and who, as a condition
of the sale, retained the sold vessel's commercial fishing rights
to fish for ocean Dungeness crab in the ocean waters of Oregon;
(d) The vessel for which application is made was continuously
licensed pursuant to ORS 508.260 for the calendar years 1991
through 1994, was used in the ocean Dungeness crab fishery to
lawfully land into Oregon ports at least 10,000 pounds of ocean
Dungeness crab in one crab fishing season between December 1,
1988, and December 31, 1994, and the owner of the vessel on
December 31, 1994, demonstrates possession of one or more vessel
licenses described in ORS 508.260 in each of 10 separate years
during the period December 1, 1980, to December 31, 1994; or
(e) The vessel for which application is made was licensed
pursuant to ORS 508.260 during 1994, is 26 feet or less in length
and was used in the ocean Dungeness crab fishery to lawfully land
into Oregon ports at least 100 pounds of ocean Dungeness crab in
at least one crab fishing season between December 1, 1988, and
December 31, 1994.
(2) As used in this section:
(a) 'Crab fishing season' is the time period from December 1 of
one year through August 14 of the next year.
(b) 'Owner' includes any ownership interest in a vessel,
including interests arising from partnership or corporation.
SECTION 340. ORS 508.936 is amended to read:
508.936. (1) The system established under ORS 508.921 shall
include provisions to make the vessel ocean Dungeness crab permit
required by ORS 508.926 transferable:
(a) To another vessel; or
(b) To the purchaser of the vessel when the vessel is sold.
(2) The vessel to which a permit is transferred may not be:
(a) More than 10 feet longer than the vessel from which the
permit is transferred; or
(b) More than 99 feet in length.
(3) Notwithstanding subsection (2) of this section, a permit
issued to a vessel:
(a) Under ORS 508.931 (1)(e) shall be transferred only to a
vessel that is 26 feet or less in length.
(b) May not be transferred to a vessel that is more than 10
feet longer than the vessel for which the permit was held on
January 1, 2006. However, the Commercial Fishery Permit Board may
waive the length restriction in this paragraph if the board finds
that strict adherence to the length restriction would create
undue hardship, as that term is defined by rule by the
{ - State Fish and Wildlife Commission - } { + Oregon Natural
Resources Commission + }, for the individual seeking transfer of
the permit.
(4) Transfer of a permit under this section is subject to the
approval of the { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + } according to such
rules as the
{ - State Fish and Wildlife - } commission may adopt. Any
transfer of a permit from a vessel without the written consent of
each person holding a security interest in the vessel is void.
(5) For purposes of this section, the length of a vessel shall
be determined by the manufacturer's specification of overall
length, United States Coast Guard documentation stating overall
length or a survey of overall length by a certified marine
surveyor, as the { - State Fish and Wildlife - } commission by
rule shall establish.
(6) A fee of $100 shall be charged for each transfer of a
vessel permit under this section.
SECTION 341. ORS 508.941 is amended to read:
508.941. (1) The system established under ORS 508.921 shall
include any other provisions for participation that the
{ - State Fish and Wildlife Commission - } { + Oregon Natural
Resources Commission + } considers appropriate.
(2) Any determination by the commission regarding the
eligibility of a vessel to participate in the ocean Dungeness
crab commercial fishery or to transfer participation rights is
subject to review by the Commercial Fishery Permit Board, in
accordance with ORS chapter 183. The board may waive the
eligibility requirements contained in ORS 508.931 if the board
finds that the individual fails to meet the requirements as the
result of illness, fire, sinking, accident or other circumstances
beyond the individual's control. In making a determination of
eligibility under this section, the board shall consider the
applicant's history of participation in the Oregon ocean
Dungeness crab fishery. If a vessel for which application is made
is owned by a person who has served in the Armed Forces of the
United States and the person establishes that a service-related
disability prevented the person from lawfully landing crab in two
seasons during the prescribed time period, there is a rebuttable
presumption in favor of issuing an illness waiver for one of the
two seasons of lawfully landing crab in Oregon required under ORS
508.931 so as to require the landing of crab in only one season
during the prescribed time period. The rebuttable presumption
created by this subsection may be overcome only by clear and
convincing evidence that the service-related disability of the
person did not prevent the person from lawfully landing crab in
two seasons during the prescribed time period. Orders issued by
the board are not subject to review by the commission, but may be
appealed as provided in ORS 183.480 to 183.540.
(3) A commercial fishing vessel that holds a valid Washington
or California permit to fish for ocean Dungeness crab shall be
eligible to participate in the Oregon ocean Dungeness crab
fishery provided there is reciprocal statutory authority in
Washington or California that provides for equal access for
vessels holding Oregon ocean Dungeness crab permits to Washington
or California coastal waters and Washington waters of the
Columbia River. If such reciprocal statutory authority exists, a
vessel licensed by Washington or California is eligible to
participate in accordance with rules that establish reciprocal
border agreements that recognize traditional fishing patterns.
(4) The annual fee to participate in the ocean Dungeness crab
fishery is:
(a) $125 for resident applicants.
(b) $290 for nonresident applicants.
SECTION 342. ORS 508.945 is amended to read:
508.945. (1) Notwithstanding any other provision of the
commercial fishing laws and except as provided in subsection (4)
of this section, a person may not operate a vessel for:
(a) Landing black rockfish or blue rockfish in a fishery
without a black rockfish and blue rockfish vessel permit issued
under ORS 508.947; or
(b) Landing nearshore fish in a fishery without a black
rockfish and blue rockfish vessel permit with a nearshore fish
endorsement issued under ORS 508.947.
(2)(a) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } may prescribe by
rule the type of fishing gear that a vessel required to have a
permit under this section shall use to land black rockfish, blue
rockfish or nearshore fish.
(b) The commission may not prescribe a rule under this
subsection that allows a vessel to use:
(A) Diving gear.
(B) Pots, unless a vessel was issued a pot endorsement in the
Interim Nearshore Fisheries Plan through the Developmental
Fisheries Program enacted by the commission.
(3) Notwithstanding any other provision of the commercial
fishing laws, a wholesaler, canner or buyer may not buy or
receive black rockfish, blue rockfish or nearshore fish taken in
a fishery from a vessel for which the permit required by this
section has not been issued, unless the black rockfish, blue
rockfish or nearshore fish were taken pursuant to subsection
(4)(a), (b) or (c) of this section.
(4) A person may operate a vessel without a permit required by
this section if the person:
(a) For only one landing per day, lands no more than 15 pounds
of black rockfish, blue rockfish, nearshore fish or a combination
of black rockfish, blue rockfish or nearshore fish and if the
black rockfish, blue rockfish and nearshore fish:
(A) Make up 25 percent or less of the total poundage of the
landing; and
(B) Are landed with fishing gear that is legal to use in the
fishery in which the black rockfish, blue rockfish or nearshore
fish are landed;
(b) Operates a vessel in the ocean troll salmon fishery
pursuant to ORS 508.801 to 508.825 and the person lands black
rockfish, blue rockfish or a combination of black rockfish and
blue rockfish in the same landing in which the person lands a
salmon under the permit required by ORS 508.801 to 508.825. The
black rockfish or blue rockfish landed under this paragraph must
be landed dead. A person who lands black rockfish and blue
rockfish under this paragraph may land up to the greater of:
(A) 30 black rockfish or 30 blue rockfish per landing or a
combination of 30 black rockfish and blue rockfish per landing;
or
(B) 100 pounds of black rockfish, blue rockfish or a
combination of black rockfish and blue rockfish per landing;
(c) Operates a vessel in the west coast groundfish trawl
fishery pursuant to federal regulations and lands no more than
1,000 pounds of black rockfish, blue rockfish or a combination of
black rockfish and blue rockfish per calendar year and if the
black rockfish and blue rockfish:
(A) Make up 25 percent or less of the total poundage of each
landing; and
(B) Are landed dead; or
(d) Is a nonprofit aquarium or has contracted with a nonprofit
aquarium to land black rockfish, blue rockfish or nearshore fish
for the purpose of displaying or conducting research on the black
rockfish, blue rockfish or nearshore fish.
(5) Notwithstanding the amounts set forth in subsection (4)(b)
of this section, the { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } may change the
amounts of black rockfish, blue rockfish or the combination of
black rockfish and blue rockfish allowed to be landed under
subsection (4)(b) of this section by rule based on an assessment
of the resource.
SECTION 343. ORS 508.947 is amended to read:
508.947. (1) The { - State Department of Fish and
Wildlife - } { + Oregon Department of Natural Resources + } may
issue a black rockfish and blue rockfish vessel permit to an
owner of a vessel that landed a minimum of 750 pounds of nontrawl
caught black rockfish, blue rockfish or nearshore fish in any one
calendar year between January 1, 1995, and January 1, 2001, or in
the six-month period between January 1, 2001, and July 1, 2001,
for delivery to a fish processor licensed pursuant to ORS
508.025.
(2) The department may issue a black rockfish and blue rockfish
vessel permit with a nearshore fish endorsement to an owner of a
vessel that was issued a permit under the Interim Nearshore
Fisheries Plan through the Developmental Fisheries Program.
(3) The department may renew a black rockfish and blue rockfish
vessel permit or a black rockfish and blue rockfish vessel permit
with a nearshore fish endorsement if the vessel made a minimum of
five commercial fish landings during the calendar year prior to
the request for renewal for delivery to a fish processor licensed
pursuant to ORS 508.025.
(4) Permits issued under this section expire on December 31 of
each year or on such date as may be specified by department rule.
An owner of a vessel with a permit must submit a renewal
application to the department by January 1 of each year or by
such date as may be specified by department rule. If the owner of
a vessel with a permit does not timely submit a renewal
application, the department shall, not more than 30 days after
the application was due, send to the owner by certified letter a
notice of the failure to submit the renewal application. An owner
may submit a late application to renew a permit not more than 90
days after the application was due if the owner pays a $150 late
fee in addition to the fee required in ORS 508.949.
(5) In making determinations regarding initial eligibility for
and renewal of a permit issued under this section, the department
may consider department records and receipts and accounts,
contracts and other business records of private parties that the
department considers reliable.
(6) Except as provided in ORS 508.955, new vessel permits may
not be issued under this section after December 30, 2005.
SECTION 344. ORS 508.949 is amended to read:
508.949. (1) The annual fee for a black rockfish and blue
rockfish vessel permit or a black rockfish and blue rockfish
vessel permit with a nearshore fish endorsement issued under ORS
508.947 is $100.
(2) Applications for a permit shall be in such form and contain
such information as the { - State Department of Fish and
Wildlife - } { + Oregon Department of Natural Resources + }, by
rule, may prescribe.
(3) All fees collected under this section and ORS 508.505
(1)(b) and 508.947 shall be placed into the Black Rockfish, Blue
Rockfish and Nearshore Species Research Account established in
ORS 508.951.
SECTION 345. ORS 508.951 is amended to read:
508.951. (1) There is established a Black Rockfish, Blue
Rockfish and Nearshore Species Research Account in the State
Treasury, separate and distinct from the General Fund. Interest
on moneys in the account shall be credited to the account.
(2) The account shall consist of moneys deposited into the
account by the { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + } from fees
collected for the value of black rockfish, blue rockfish or
nearshore fish at the point of landing pursuant to ORS 508.505
(1)(b) and black rockfish and blue rockfish vessel permit fees
and late fees collected under ORS 508.947 and 508.949. The moneys
in the account are continuously appropriated to the { - State
Department of Fish and Wildlife - } { + department + } for
gathering and analyzing data and conducting research on the black
rockfish and blue rockfish fishery and the nearshore species
fishery.
SECTION 346. ORS 508.953 is amended to read:
508.953. (1) An owner of a vessel that has a black rockfish and
blue rockfish vessel permit or a black rockfish and blue rockfish
vessel permit with a nearshore fish endorsement shall keep a log
book that includes:
(a) The amount of food fish that are caught;
(b) The date on which the food fish are caught;
(c) The species of food fish that are caught by the vessel; and
(d) Any other information that the { - State Department of
Fish and Wildlife - } { + Oregon Department of Natural
Resources + } may prescribe.
(2) The { - State Department of Fish and Wildlife - }
{ + department + } shall:
(a) Annually collect and summarize the information required by
subsection (1) of this section; and
(b) Present a report on the black rockfish and blue rockfish
fishery and the nearshore species fishery, including the summary
prepared in paragraph (a) of this subsection, to the { - State
Fish and Wildlife Commission - } { + Oregon Natural Resources
Commission + } during a public meeting held by July 1.
SECTION 347. ORS 508.955 is amended to read:
508.955. (1) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } may establish by
rule a lottery for issuing permits to vessels under ORS 508.947.
(2) A vessel may qualify for the lottery if the vessel:
(a) Has a boat license issued pursuant to ORS 508.260 for the
current year; and
(b) Had a boat license issued pursuant to ORS 508.260 for the
previous year.
(3) Based on an assessment of the resource, the commission may:
(a) Suspend the lottery for up to two years; and
(b) Renew a suspension of the lottery every two years.
(4) The commission shall establish by rule a threshold number
of permits below which the { + Oregon + } Department { + of
Natural Resources + } shall issue permits through the lottery.
SECTION 348. ORS 508.960 is amended to read:
508.960. (1) A person whose application for issuance, renewal
or transfer of a permit under ORS 508.947 is denied by the
{ - State Department of Fish and Wildlife - } { + Oregon
Department of Natural Resources + } may make written request to
the Commercial Fishery Permit Board for review of the denial. The
review provided in this subsection is in lieu of any such review
by the department or the
{ - State Fish and Wildlife Commission - } { + Oregon Natural
Resources Commission + }. The request shall be in such form and
shall contain such information as the board considers
appropriate. The request shall be accompanied by a nonrefundable
fee of $125, which shall apply toward the permit fee if the
application is approved.
(2) In accordance with the applicable provisions of ORS chapter
183, the board shall review denials of applications for issuance,
transfer or renewal of permits. Orders issued by the board are
not subject to review by the commission, but may be appealed as
provided in ORS 183.480 to 183.540. The board may waive
requirements for renewal or transfer of permits if the board
finds that the person fails to meet the requirements as the
result of illness, accident or other circumstances beyond the
person's control.
(3) In accordance with the applicable provisions of ORS chapter
183, the board may promulgate such rules as it considers
necessary to carry out its duties, functions and powers under
this section.
SECTION 349. ORS 509.015 is amended to read:
509.015. (1) In addition to the penalty prescribed by ORS
506.991, upon conviction of a violation of ORS 509.011, the court
may order the forfeiture of the boat, vessel, vehicle and fishing
gear unlawfully used, in the manner provided by ORS 506.695 and
506.700, and the clear proceeds of the property forfeited shall
be deposited with the State Treasury in the Common School Fund.
(2) All food fish taken, transported or possessed in violation
of ORS 509.011 are subject to seizure by the { - State Fish and
Wildlife Director - } { + Director of the Oregon Department of
Natural Resources + }, a deputy fish or game warden or a member
of the state police, either with or without arrest. Upon such
seizure, the fish are subject to forfeiture and disposition
pursuant to ORS 506.690.
SECTION 350. ORS 509.031 is amended to read:
509.031. (1) It shall be the policy of the State of Oregon that
rainbow trout, Oncorhynchus mykiss, including steelhead trout are
game fish, and shall be managed to provide recreational angling
for the people and to protect wild native stocks. Recognizing
that rainbow trout are sometimes intermingled with food fish, the
{ - State Fish and Wildlife Commission - } { + Oregon Natural
Resources Commission + } shall regulate to minimize the
incidental catch of rainbow trout that may be taken under
subsection (2) of this section by commercial fishing gear,
including but not limited to regulations as to season, gear and
area.
(2) Any rainbow trout, Oncorhynchus mykiss, including steelhead
trout taken as an incidental catch, by any person fishing
commercially shall be returned immediately to the water and shall
not be bought or sold within the state.
(3) Nothing in this section is intended to affect Indian
fishing rights as granted by federal treaties.
SECTION 351. ORS 509.040 is amended to read:
509.040. (1) Any person who takes any immature salmon of any
variety less than 20 inches in length, or any mature salmon of
any variety less than 15 inches in length, by any means other
than angling, shall immediately return such salmon alive to the
water.
(2) It is unlawful to:
(a) Take, buy, sell or possess immature salmon less than 20
inches or mature salmon less than 15 inches in length, taken in
any waters of this state, at any time or in any manner except by
angling.
(b) Take, molest, kill or injure, in any manner at any time, or
expose for sale or have in possession, except for the purpose of
propagation when authorized by law, any spawning salmon.
(3) Notwithstanding subsections (1) and (2) of this section it
is lawful to take precocious salmon commonly called jack salmon
less than 15 inches in length from the waters of this state,
except the Pacific Ocean and to buy, sell or possess such salmon.
(4) To further protect immature salmon the { - State Fish and
Wildlife Commission - } { + Oregon Natural Resources
Commission + } may establish by rule a minimum size for any
species of salmon which is greater than 20 inches.
SECTION 352. ORS 509.075 is amended to read:
509.075. If the { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } or its authorized
representatives finds that food fish about to be processed,
packed, canned, preserved in ice or sold in the open market are
unfit for human consumption, it or they shall notify the packer
or possessor of such fish of the fact. If, in spite of any
warning given to such packer or possessor, such fish are packed,
demand shall be made upon the packer to keep such fish separate
and apart from the balance of the output or pack of the packer,
and a full report shall be made of the matter to both the state
and the federal health authorities.
SECTION 353. ORS 509.110 is amended to read:
509.110. (1) All transportation companies, common carriers or
other persons or agencies transporting food fish, fresh, frozen,
salted, smoked, kippered or preserved in ice, shall require of
the shipper, before accepting such shipments, a signed statement
in writing showing:
(a) The name of the consignor or shipper.
(b) The name of the consignee.
(c) The net weight in pounds of each species of fish in the
shipment, in the whole or round, or dressed.
(d) The date of the shipment.
(2) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } may require such
statement to be forwarded to its office.
(3) The { - State Fish and Wildlife Director - }
{ + Director of the Oregon Department of Natural Resources + }
or the authorized representative of the director may at any time
examine the records of any such transportation companies, common
carriers or other persons or agencies, for the purpose of
enforcing this section.
SECTION 354. ORS 509.115 is amended to read:
509.115. It is unlawful, without written authority from the
{ - State Fish and Wildlife Commission - } { + Oregon Natural
Resources Commission + }, to place in any of the waters of this
state any species or variety of fish whatsoever which are
inimical to or destructive of food fish.
SECTION 355. ORS 509.120 is amended to read:
509.120. It is unlawful to use or permit to be used in any of
the waters of this state any electrical device, appliance or
current which in any manner has a tendency to retard, scare,
frighten or obstruct any food fish in their migrations or
movements in such waters without first having obtained the
consent of and a permit from the { - State Fish and Wildlife
Director - } { + Director of the Oregon Department of Natural
Resources + }.
SECTION 356. ORS 509.140 is amended to read:
509.140. (1) Whenever in the course of removing any obstruction
in any waters of this state, or in constructing any foundations
for dams, bridges or other structures, or in carrying on any
trade or business, any person, municipal corporation, political
subdivision or governmental agency desires to use explosives or
any substances deleterious to fish, such person, municipal
corporation, political subdivision or governmental agency shall
make application to the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + } for
a permit to use the explosives or substances in such waters.
(2) If the commission finds it necessary that the explosives or
substances be used, it may make an order granting such person,
municipal corporation, political subdivision or governmental
agency the right to use the explosives or substances and shall:
(a) Designate the places and period within which the explosives
or substances may be used; and
(b) Prescribe such precautions as will save fish from injury.
(3) It is unlawful to disregard such order or fail to obtain
such order or permit before using explosives or substances
deleterious to fish.
SECTION 357. ORS 509.150 is amended to read:
509.150. Nothing in ORS 509.125 to 509.155 prevents the
{ - State Fish and Wildlife Commission - } { + Oregon Natural
Resources Commission + } from using any explosives or substances
deleterious to fish for the purpose of destroying German carp or
any other predatory fish inimical to food fish, or from carrying
out any of the commercial fishing laws.
SECTION 358. ORS 509.216 is amended to read:
509.216. (1) Except as provided in subsection (2) of this
section, it is unlawful to take food fish by means of fixed
fishing gear or seines in any of the waters of this state.
(2) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } by rule may permit
fixed fishing gear or seines for the taking of certain species of
food fish other than salmon or steelhead from the waters of this
state. In enacting any such rule the commission shall give due
consideration to
{ - insuring - } { + ensuring + } that the use of such
fishing gear will not restrict the free migration or impair the
ultimate supply of salmon or steelhead. Any salmon or steelhead
taken as an incidental catch in operation of such gear shall
immediately, with care and the least possible injury to the
salmon or steelhead, be released and transferred to the water
without violence.
SECTION 359. ORS 509.230 is amended to read:
509.230. (1) Subject to the conditions provided in this
section, ORS 509.216 and ORS chapter 513, it is unlawful to have
in possession any food fish taken in the waters of the Pacific
Ocean outside the territorial jurisdiction of this state by means
of any fishing gear except as provided by law or rule of the
{ - State Fish and Wildlife Commission - } { + Oregon Natural
Resources Commission + }, for:
(a) The purpose of commercially packing, canning or preserving
the fish.
(b) The manufacture of fish meal, fish oil or other fish
products or by-products.
(c) Sale as fresh fish for general consumption.
(d) Bait.
(2) It is also unlawful to take any salmon for commercial
purposes in any of the waters of the Pacific Ocean within the
jurisdiction of this state or over which this state has
concurrent jurisdiction by means of any fishing gear other than
by 'troll. '
SECTION 360. ORS 509.240 is amended to read:
509.240. It is lawful to operate or use a net consisting of a
single nylon or cotton web of a mesh not less than 14 inches,
taut measure, hung or attached to not to exceed two lead lines
combined and used as a single line and a single cork line, in any
of the waters of this state, during any season or period closed
to commercial fishing by law or by rule of the { - State Fish
and Wildlife Commission - } { + Oregon Natural Resources
Commission + }, for the purpose of clearing away or removing
snags or similar obstructions from gillnet drifts and other
suitable or desirable fishing areas.
SECTION 361. ORS 509.245 is amended to read:
509.245. Any person desiring to operate a snagging net as
provided in ORS 509.240 shall, before operating or attempting to
so operate such net, obtain from the { - State Fish and
Wildlife Director - } { + Director of the Oregon Department of
Natural Resources + } a snagging permit by forwarding a written
request to the office of the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + }
specifically providing:
(1) The particular gillnet drift, fishing ground or other area
to be cleared;
(2) The waters in which located;
(3) The mesh size of the snagging net to be used; and
(4) The dates on which or within which the proposed snagging
operations will be carried on. In specifying any such dates, no
one notice is valid for a period of more than 30 days from the
date thereof.
SECTION 362. ORS 509.580 is amended to read:
509.580. As used in ORS 509.580 to 509.590, 509.600 to 509.645
and 509.910:
(1) 'Artificial obstruction' means any dam, diversion, culvert
or other human-made device placed in the waters of this state
that precludes or prevents the migration of native migratory
fish.
(2) 'Construction' means:
(a) Original construction;
(b) Major replacement;
(c) Structural modifications that increase storage or diversion
capacity; or
(d) For purposes of culverts, installation or replacement of a
roadbed or culvert.
(3) 'Emergency' means unforeseen circumstances materially
related to or affected by an artificial obstruction that, because
of adverse impacts to a population of native migratory fish,
requires immediate action. The { - State Fish and Wildlife
Director - } { + Director of the Oregon Department of Natural
Resources + } may further define the term 'emergency' by rule.
(4) 'Fundamental change in permit status' means a change in
regulatory approval for the operation of an artificial
obstruction where the regulatory agency has discretion to impose
additional conditions on the applicant, including but not limited
to licensing, relicensing, reauthorization or the granting of new
water rights, but not including water right transfers or routine
maintenance permits.
(5) 'In-proximity' means within the same watershed or water
basin and having the highest likelihood of benefiting the native
migratory fish populations directly affected by an artificial
obstruction.
(6) 'Native migratory fish' means those native fish that
migrate for their life cycle needs and that are listed in the
rules of the { - State Fish and Wildlife Director - }
{ + Oregon Department of Natural Resources + }.
(7) 'Net benefit' means an increase in the overall,
in-proximity habitat quality or quantity that is biologically
likely to lead to an increased number of native migratory fish
after a development action and any subsequent mitigation measures
have been completed.
(8) 'Oregon Plan' means the guidance statement and framework
described in ORS 541.405.
SECTION 363. ORS 509.585 is amended to read:
509.585. (1) It is the policy of the State of Oregon to provide
for upstream and downstream passage for native migratory fish and
the Legislative Assembly finds that cooperation and collaboration
between public and private entities is necessary to accomplish
the policy goal of providing passage for native migratory fish
and to achieve the enhancement and restoration of Oregon's native
salmonid populations, as envisioned by the Oregon Plan.
Therefore, except as provided in ORS chapter 509, fish passage is
required in all waters of this state in which native migratory
fish are currently or have historically been present.
(2) Except as otherwise provided by this section or ORS
509.645, a person owning or operating an artificial obstruction
may not construct or maintain any artificial obstruction across
any waters of this state that are inhabited, or historically
inhabited, by native migratory fish without providing passage for
native migratory fish.
(3) The { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + } shall complete
and maintain a statewide inventory of artificial obstructions in
order to prioritize enforcement actions based on the needs of
native migratory fish. This prioritization shall include, but
need not be limited to, the degree of impact of the artificial
obstruction on the native migratory fish, the biological status
of the native migratory fish stocks in question and any other
factor established by the department by rule. The department
shall establish a list of priority projects for enforcement
purposes. Priority artificial obstructions are subject to the
{ - State Fish and Wildlife Commission's - } authority { + of
the Oregon Natural Resources Commission + } as provided in ORS
509.625. Unless requested by persons owning or operating an
artificial obstruction, the department shall primarily direct its
enforcement authority toward priority projects, emergencies and
projects described in subsection (4) of this section. The
priority project list shall be subject to periodic review and
amendment by the department and to formal review and amendment by
the commission no less frequently than once every five years.
(4) A person owning or operating an artificial obstruction
shall, prior to construction, fundamental change in permit status
or abandonment of the artificial obstruction in any waters of
this state, obtain a determination from the department as to
whether native migratory fish are or historically have been
present in the waters. If the department determines that native
migratory fish are or historically have been present in the
waters, the person owning or operating the artificial obstruction
shall either submit a proposal for fish passage to the department
or apply for a waiver pursuant to subsection (7) of this section.
Approval of the proposed fish passage facility or of the
alternatives to fish passage must be obtained from the department
prior to construction, permit modification or abandonment of the
artificial obstruction.
(5) Consistent with the purpose and goals of the Oregon Plan,
the department shall seek cooperative partnerships to remedy fish
passage problems and to ensure that problems are corrected as
soon as possible. The department and the person owning or
operating the artificial obstruction are encouraged to negotiate
the terms and conditions of fish passage or alternatives to fish
passage, including appropriate cost sharing. The negotiations may
include, but are not limited to, consideration of equitable
factors.
(6) The department shall submit a proposed determination of the
required fish passage or alternatives to fish passage to the
commission for approval. The determination may be the result of
the negotiations described in subsection (5) of this section or,
if no agreement was reached in the negotiations, a determination
proposed by the department. If a protest is not filed within the
time period specified in ORS 509.645, the proposed determination
shall become a final order.
(7)(a) The commission shall waive the requirement for fish
passage if the commission determines that the alternatives to
fish passage proposed by the person owning or operating the
artificial obstruction provide a net benefit to native migratory
fish.
(b) Net benefit to native migratory fish is determined under
this subsection by comparing the benefit to native migratory fish
that would occur if the artificial obstruction had fish passage
to the benefit to native migratory fish that would occur using
the proposed alternatives to fish passage. Alternatives to fish
passage must result in a benefit to fish greater than that
provided by the artificial obstruction with fish passage. The net
benefit to fish shall be determined based upon conditions that
exist at the time of comparison.
(c) The { - State Fish and Wildlife Director - }
{ + Director of the Oregon Department of Natural Resources + }
shall develop rules establishing general criteria for determining
the adequacy of fish passage and of alternatives to fish passage.
The general criteria shall include, but not be limited to:
(A) The geographic scope in which alternatives must be
conducted;
(B) The type and quality of habitat;
(C) The species affected;
(D) The status of the native migratory fish stocks;
(E) Standards for monitoring, evaluating and adaptive
management;
(F) The feasibility of fish passage and alternatives to fish
passage;
(G) Quantified baseline conditions;
(H) Historic conditions;
(I) Existing native migratory fish management plans;
(J) Financial or other incentives and the application of
incentives;
(K) Data collection and evaluation; and
(L) Consistency with the purpose and goals of the Oregon Plan.
(d) To the extent feasible, the department shall coordinate its
requirements for adequate fish passage or alternatives to fish
passage with any federal requirements.
(8) A person owning or operating an artificial obstruction may
at any time petition the commission to waive the requirement for
fish passage in exchange for agreed-upon alternatives to fish
passage that provide a net benefit to native migratory fish as
determined in subsection (7) of this section.
(9)(a) Artificial obstructions without fish passage are exempt
from the requirement to provide fish passage if the commission:
(A) Finds that a lack of fish passage has been effectively
mitigated;
(B) Has granted a legal waiver for the artificial obstruction;
or
(C) Finds there is no appreciable benefit to providing fish
passage.
(b) The commission shall review, at least once every seven
years, the artificial obstructions exempted under this subsection
that do not have an exemption expiration date to determine
whether the exemption should be renewed. The commission may
revoke or amend an exemption if it finds that circumstances have
changed such that the relevant requirements for the exemption no
longer apply. The person owning or operating the artificial
obstruction may protest the decision by the commission pursuant
to ORS 509.645.
(10) If the fundamental change in permit status is an
expiration of a license of a federally licensed hydroelectric
project, the commission's determination shall be submitted to the
Federal Energy Regulatory Commission as required by ORS 543A.060
to 543A.410.
(11) To the extent that the requirements of this section are
preempted by the Federal Power Act or by the laws governing
hydroelectric projects located in waters governed jointly by
Oregon and another state, federally licensed hydroelectric
projects are exempt from the requirements of this section.
(12) A person subject to a decision of the { + Oregon Natural
Resources + } Commission under this section shall have the right
to a contested case hearing according to the applicable
provisions of ORS chapter 183.
SECTION 364. ORS 509.590 is amended to read:
509.590. (1) The { - State Fish and Wildlife Director - }
{ + Director of the Oregon Department of Natural Resources + }
shall establish a Fish Passage Task Force to advise the director
and the { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + } on matters
related to fish passage in Oregon, including but not limited to
funding, cost sharing and prioritization of efforts. The director
shall determine the members and the specific duties of the task
force by rule.
(2) The department shall provide staff necessary for the
performance of the functions of the task force.
(3) A member of the task force may not receive compensation for
services as a member of the task force. In accordance with ORS
292.495, a member of the task force may receive reimbursement for
actual and necessary travel or other expenses incurred in the
performance of official duties.
(4) The task force shall report semiannually to the appropriate
legislative committee with responsibility for salmon restoration
or species recovery, to advise the committee on matters related
to fish passage.
SECTION 365. ORS 509.595 is amended to read:
509.595. The { - State Fish and Wildlife Director - }
{ + Director of the Oregon Department of Natural Resources + }
shall report to the Governor, the Speaker of the House of
Representatives, the President of the Senate and the appropriate
legislative committee with responsibility for salmon restoration
or species recovery:
(1) Prior to the adoption of rules relating to fish passage;
(2) Prior to the establishment of the general criteria for
determining the adequacy of fish passage and of alternatives to
fish passage required to be established under ORS 509.585 (7)(c);
and
(3) Semiannually on the progress that the director has made in
implementing ORS 509.580 to 509.590.
SECTION 366. ORS 509.600 is amended to read:
509.600. (1) A person may not willfully or knowingly destroy,
injure or take fish within 600 feet of any fishway, except as
permitted by subsection (2) of this section. Actions that violate
this section include, but are not limited to:
(a) Hindering, annoying or disturbing fish entering, passing
through, resting in or leaving such fishway, or obstructing the
passage of fish through the fishway at any time or in any manner.
(b) Placing anything in the fishway.
(c) Using any fishing gear within 600 feet of the fishway.
(d) Taking fish at any time anywhere within 600 feet of the
fishway.
(e) Doing any injury to the fishway.
(2) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } may by rule or by
issuance of permits authorize the taking of fish within 600 feet
of any fishway.
SECTION 367. ORS 509.610 is amended to read:
509.610. (1) Subject to ORS 509.645, when the { - State
Department of Fish and Wildlife - } { + Oregon Department of
Natural Resources + } requires fish passage to be provided
pursuant to ORS 509.585, the person owning or operating an
artificial obstruction shall keep the fish passage in such repair
as to provide adequate fish passage of native migratory fish at
all times.
(2) Each day of neglect or refusal to comply with subsection
(1) of this section, after notification in writing by the
department, constitutes a separate offense.
(3) A person owning or operating an artificial obstruction is
responsible for maintaining, monitoring and evaluating the
effectiveness of fish passage or alternatives to fish passage.
SECTION 368. ORS 509.620 is amended to read:
509.620. If, in the judgment of the { - State Department of
Fish and Wildlife - } { + Oregon Department of Natural
Resources + }, fish passage is not functioning as intended or is
inadequate, as constructed under ORS 509.585, the { - State
Fish and Wildlife Commission - } { + Oregon Natural Resources
Commission + } may condemn the fish passage and order new fish
passage installed in accordance with plans and specifications
determined by the department.
SECTION 369. ORS 509.625 is amended to read:
509.625. (1) The { - State Department of Fish and
Wildlife - } { + Oregon Department of Natural Resources + } may
determine or ascertain by inspection of any artificial
obstruction whether it would be advisable to construct fish
passage, or order the construction pursuant to ORS 509.585 of
fish passage, at the artificial obstruction. Without affecting
other remedies to enforce the requirement to install fish
passage, if the { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } determines that an
emergency exists, the commission may order the construction,
pursuant to ORS 509.585, of fish passage in the waters of this
state inhabited by native migratory fish as deemed adequate to
provide passage for native migratory fish.
(2) Where fish passage has previously been constructed with or
without the approval of the commission and has proved useless or
inadequate for the purposes for which it is intended, the
commission may improve or rebuild such fish passage. However,
such construction or reconstruction shall not interfere with the
prime purpose of the artificial obstruction. This subsection may
not be construed to require the improvement or rebuilding of fish
passage by the commission.
(3)(a) The commission may order a person owning or operating an
artificial obstruction on the priority list created pursuant to
ORS 509.585 who has been issued a water right, owners of lawfully
installed culverts or owners of other lawfully installed
obstructions to install fish passage or to provide alternatives
to fish passage if the commission can arrange for nonowner or
nonoperator funding of at least 60 percent of the cost.
(b) Notwithstanding paragraph (a) of this subsection, the
commission may order installation of fish passage or alternatives
to fish passage without regard to funding sources:
(A) If the person owning or operating the artificial
obstruction is already subject to an obligation to install fish
passage or to provide alternatives to fish passage under ORS
509.585;
(B) If the commission declares an emergency under this section;
or
(C) If the person owning or operating the artificial
obstruction has not been issued a water right or if the
artificial obstruction has been otherwise unlawfully installed.
(4) If a person who owns or operates an artificial obstruction
and who is required to provide fish passage under ORS 509.585
fails to provide fish passage in the manner and time required by
the { - State Department of Fish and Wildlife - }
{ + department + }, the commission may remove, replace or repair
the artificial obstruction or any parts of the obstruction at the
expense of the owner or operator.
SECTION 370. ORS 509.630 is amended to read:
509.630. The { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + } may determine or
ascertain by inspection of any natural obstruction whether it
would be advisable to construct fish passage over or around such
natural obstruction. If it is deemed advisable the { - State
Fish and Wildlife Commission - } { + Oregon Natural Resources
Commission + } may construct fish passage that provides adequate
passage for native migratory fish in the waters of this state
inhabited by native migratory fish.
SECTION 371. ORS 509.635 is amended to read:
509.635. (1) The fishways over the falls in the Willamette
River, near Oregon City, are under the care and control of the
{ - State Fish and Wildlife Commission - } { + Oregon Natural
Resources Commission + }, which may make any extensions,
additions, alterations or repairs to the same that become
necessary.
(2) The commission, or its duly authorized representatives, may
remove any artificial obstructions placed in the Willamette River
above the falls which would prevent the free passage of fish up
the river.
SECTION 372. ORS 509.645 is amended to read:
509.645. (1) A person owning or operating an artificial
obstruction may request alternative dispute resolution at any
point in the process of determining fish passage requirements.
(2) A person owning or operating an artificial obstruction may
file a protest with the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + }
within 30 days from the receipt of the { - State Department of
Fish and Wildlife - } { + Oregon Department of Natural
Resources + } determinations under ORS 509.585. The person shall
identify the grounds for protesting the department's
determinations.
(3) The commission may, after sufficient opportunity for public
review and comment, approve, deny or modify the proposed
determinations.
SECTION 373. ORS 509.910 is amended to read:
509.910. (1) The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } may maintain an
action for an injunction to enjoin and restrain any person,
municipal corporation, political subdivision or governmental
agency of this state from violating any of the provisions of ORS
509.130, 509.140, 509.505, 509.585, 509.610 and 509.625.
(2) Any action authorized by this section shall be tried in the
circuit court of the county in which the violation occurs or in
Marion or Multnomah County.
(3) If the defendant is a corporation with its principal office
and place of business in a county other than in which the waters
flow or are situated, such action shall be deemed an action of
local nature and service of summons made on a corporation in any
county where the corporation has its principal office and place
of business. If it is a foreign corporation, service may be made
on the statutory agent but if there is no such statutory agent
then upon the Secretary of State as in other cases provided by
law.
SECTION 374. ORS 511.070 is amended to read:
511.070. It shall be lawful for the { - State Fish and
Wildlife Commission - } { + Oregon Natural Resources
Commission + } by rule to establish a season for commercial
fishing for chum salmon and the incidental take of salmon in
Tillamook Bay. Such season may not exceed 30 calendar days total
length each year and may only be between October 25 and December
5. Fishing areas under this section shall be limited to:
(1) Tillamook Bay except that portion of Hathaway Slough above
a line extended due south from a point on the northerly bank or
shoreline of the slough 1,000 feet downstream from the Southern
Pacific railroad trestle.
(2) The Miami River below a line drawn across the Miami River
due north and south through a point 1,000 feet west from the
northwest corner of the Southern Pacific railroad bridge crossing
the Miami River.
(3) The Kilchis River below a point at the intersection of the
Kilchis River by the section line between sections 11 and 12,
township 1 south, range 10 west of the Willamette Meridian.
(4) The Wilson River below a point 500 feet below the bridge
crossing the Wilson River in section 13, township 1 south, range
10 west of the Willamette Meridian.
(5) The Tillamook River below a point 100 feet below the mouth
of Frasier Slough.
SECTION 375. ORS 513.020 is amended to read:
513.020. In order that all fish or parts thereof suitable for
human consumption may be conserved and used for that purpose, and
to provide sanitary methods and prevent waste in the use, sale,
packing, preserving, manufacturing, processing or other handling
of fish or fish products, other than salmon, the { - State Fish
and Wildlife Commission - } { + Oregon Natural Resources
Commission + } may control and regulate fishing boats, barges,
lighters or tenders, receptacles or vehicles containing fish or
fishing gear, fish reduction plants or plants where fish products
are manufactured, in so far as may be necessary to insure the
taking, catching, delivery of fish, canning, packing, preserving,
reduction of and manufacture of fish products or by-products in a
wholesome and sanitary manner, and to prevent deterioration or
waste of any fish.
SECTION 376. ORS 513.030 is amended to read:
513.030. Any member, assistant or employee of the { - State
Fish and Wildlife Commission - } { + Oregon Natural Resources
Commission + }, or duly authorized officer of the state, may
enter any canning, packing, preserving or reduction plant or
place of business where fish or other fish products are packed,
preserved, manufactured, bought or sold, or board and inspect any
fishing boat, barge, lighter or tender, receptacle or vehicle,
containing fish, for the purpose of examining any fish or fish
products and to ascertain the amount of fish received, or kind
and amount of fish products packed or manufactured and the number
and size of containers or cans for fish products purchased,
received, used or on hand.
SECTION 377. ORS 513.040 is amended to read:
513.040. The { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } may:
(1) Control, regulate and establish, by order, the proportion
or percentage of sardines, pilchards, herring or other species of
fish other than salmon, to be used for reduction purposes or the
manufacture of fish flour, fish meal, fish scrap, fertilizer or
oil, and may further, through such order, specifically name or
prescribe the particular species of fish which may be used for
reduction purposes, food for animals or other purposes.
(2) Exercise full jurisdiction and control over the processing,
packing or preserving of sardines, and prescribe and specify the
process to be used in the canning of such fishes in order to
assure a quality product and prevent the use of certain
substitute oils resulting in inferior grades.
SECTION 378. ORS 538.150 is amended to read:
538.150. The waters of Hackett Creek, a tributary of the Sandy
River located in Clackamas County, and of the tributaries of
Hackett Creek, are withdrawn from appropriation or condemnation
and shall not be diverted or interrupted for any purpose
whatsoever, except for protecting fish life therein by the
{ - State Fish and Wildlife Commission - } { + Oregon Natural
Resources Commission + }.
SECTION 379. ORS 538.170 is amended to read:
538.170. (1) Except as provided in subsection (2) of this
section, the waters of Johnson Creek, a tributary of the
Willamette River and located in Multnomah and Clackamas Counties
and all tributaries thereof, except flows of Crystal Springs
Creek and its tributaries in excess of 10 cubic feet per second
measured at the mouth of Crystal Springs Creek:
(a) Are withdrawn from appropriation or condemnation; and
(b) Shall not be diverted or interrupted for any purpose
whatsoever, except for the purpose of protecting fish life
therein by the { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + } or for the
purpose of developing hydroelectric power not to exceed 25
theoretical horsepower if such hydroelectric development does not
diminish perennial streamflow required for the maintenance of
fish life.
(2) The tributaries withdrawn from appropriation and
condemnation, but not the main channel, of Johnson Creek are open
to appropriation and storage from December 1 to June 1 of each
year. Water stored during this period may be used at any time.
SECTION 380. ORS 538.210 is amended to read:
538.210. ORS 538.200 shall not prevent the condemnation for
public park purposes of any lands through which any of the
streams flow; nor affect vested rights or the rights of riparian
proprietors of such lands in or to the waters of the creeks or
streams; nor prevent the condemnation of any lands through which
any of the streams flow, for the purpose of establishing,
maintaining and operating thereon salmon fish culture work, nor
prevent the { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } from appropriating
any waters for fish culture work; nor prevent the appropriation,
for irrigation purposes, of waters between the Union Pacific
Railroad tracks and the Columbia River that flow from any of the
streams other than Herman Creek; provided, that no waters shall
be taken from above the falls in the streams mentioned in ORS
538.200.
SECTION 381. ORS 538.220 is amended to read:
538.220. (1) The waters described as follows are withdrawn from
appropriation or condemnation, and shall not be diverted or
interrupted for any purpose whatsoever, except for domestic
purposes and protecting fish life therein by the { - State Fish
and Wildlife Commission - } { + Oregon Natural Resources
Commission + }:
(a) The waters of Mill Creek, in Jackson County, beginning in
section 22, township 31 south, range 4 east, Willamette Meridian,
running thence southwesterly through township 31 south, range 3
east, Willamette Meridian, and township 32 south, range 3 east,
Willamette Meridian, to a junction with the Rogue River in
section 32, township 32 south, range 3 east, Willamette Meridian,
together with the tributaries of said Mill Creek; and
(b) Barr Creek, in Jackson County, beginning in section 1,
township 32 south, range 3 east, Willamette Meridian, and in
section 6 and section 7, township 32 south, range 4 east,
Willamette Meridian, running thence in a general southwesterly
direction through township 32 south, range 3 east, Willamette
Meridian, to a junction with the Rogue River in section 32,
township 3 east, Willamette Meridian, together with the
tributaries of said Barr Creek.
(2) Subsection (1) of this section shall not prevent the
appropriation of the waters of Mill Creek, in Jackson County, for
the development of hydroelectric power not to exceed one megawatt
if:
(a) The hydroelectric project is located on Mill Creek at a
point at least two miles above the confluence of Mill Creek and
the Rogue River;
(b) All water appropriated from the stream is returned to the
stream at a point at least one-half mile above the confluence of
Mill Creek and the Rogue River; and
(c) The facility will be constructed and operated in compliance
with recommendations by the { - State Department of Fish and
Wildlife - } { + Oregon Department of Natural Resources + }
concerning fish conservation, including streamflow requirements
based upon biological criteria.
SECTION 382. ORS 538.251 is amended to read:
538.251. Except as otherwise provided in this section, the
following waters, all being tributaries of the Columbia River,
are withdrawn from appropriation and shall not be diverted or
interrupted for any purpose, except for protecting fish life
therein by the { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + }:
(1) Clatskanie River and its tributaries, except Fall Creek in
Columbia County, for purposes of hydroelectric generation if the
facility is constructed and operated in compliance with
recommendations by the { - State Department of Fish and
Wildlife - } { + Oregon Department of Natural Resources + }
concerning fish conservation, including streamflow requirements
based upon biological criteria.
(2) Klaskanine River and its tributaries in Clatsop County
except an unnamed tributary of the South Fork Klaskanine River in
Clatsop County, on which there is located an existing fish
culture project, for purposes of hydroelectric generation if the
facility is less than 100 horsepower and the electricity
generated is for use in conjunction with the existing fish
culture project.
(3) Lewis and Clark River in Clatsop County.
(4) Sandy River and its tributaries in Multnomah and Clackamas
Counties, except:
(a) Beaver Creek and its tributaries.
(b) Buck Creek and its tributaries.
(c) The tributary of the Sandy River in Multnomah County which
empties into the Sandy River near the north quarter corner,
section 10, township 1 south, range 4 east, Willamette Meridian,
and its tributaries, and is locally known as Big Creek.
(d) All tributaries, but not the main channel, of the Sandy
River are open for appropriation and storage from December 1 to
June 1 of each year. Water stored during this period may be used
at any time.
(e) Trout Creek in Multnomah County and its tributaries.
(5) Scappoose Creek in Columbia County.
(6) Tillasqua Creek in Clatsop County.
SECTION 383. ORS 538.430 is amended to read:
538.430. (1) Subject to water rights existing on May 29, 1925,
the City of Medford, in Jackson County, is granted the exclusive
right to use for municipal purposes all the waters of Big Butte
Creek, a tributary of Rogue River situated in Jackson County, and
of the springs at the head which form the creek, and of its
tributaries. The City of Medford, any of its officers, and others
on its behalf may appropriate all the waters for these purposes
and an application therefor may be made for the benefit of the
city, either by it in its own name, or by any of its officers or
by any other person on its behalf. No person shall appropriate or
be granted a permit to use any of the waters except as provided
in this section, and for the use and benefit of the city. But the
City of Medford may, under this grant, divert such waters from
their watershed and convey them to the city and elsewhere for use
by it for municipal purposes, either within or without the city
limits. All of such waters are withdrawn from future
appropriation, except for such use and benefit of the City of
Medford; provided however, that the Eagle Point Irrigation
District may establish and use an additional point of diversion
below the diversion point in use on April 1, 1953, under its
permit number 6396 which authorizes the appropriation of not to
exceed 100 cubic feet per second.
(2) Subject to rights existing on July 21, 1953, to the use of
the waters of Big Butte Creek, and of the springs at the head
which form the creek, and of its tributaries, including the
rights granted in subsection (1) of this section to the City of
Medford to the use of such waters and the right of future
appropriation of such waters, the Eagle Point Irrigation District
is granted the right to appropriate and use up to and including
100 cubic feet per second of the waters of Big Butte Creek, using
the diversion site of the Eagle Point Irrigation District
existing on April 1, 1953, for the purpose of generating electric
energy; provided, however, that not less than 10 cubic feet per
second of said waters shall be permitted to pass said diversion
point and remain in the channel of said stream at all times other
than times when said waters are diverted for irrigation purposes.
The Eagle Point Irrigation District may:
(a) Enter into such contracts and perform such other acts as it
deems necessary or desirable for the generation of electric
energy and the construction and maintenance of facilities for the
generation of electric energy.
(b) Enter into such arrangements as it deems proper for the
use, sale or distribution of the electric energy which is
generated.
(3) In performing any of the acts under subsection (2) of this
section, the Eagle Point Irrigation District shall not be deemed
a public utility as defined in ORS 757.005.
(4) Subsections (1) and (2) of this section shall not prevent
the appropriation of the waters of Clark Creek, in Jackson
County, for the development of hydroelectric power not to exceed
two megawatts if the facility will be constructed and operated in
compliance with recommendations by the { - State Department of
Fish and Wildlife - } { + Oregon Department of Natural
Resources + } concerning fish conservation, including streamflow
requirements based upon biological criteria.
SECTION 384. ORS 541.405 is amended to read:
541.405. (1) As used in this section when referring to salmonid
recovery:
(a) 'Listed unit' means one population or a group of
populations of a species, such as an evolutionarily significant
unit, that has been listed as threatened or endangered under the
federal Endangered Species Act of 1973 (P.L. 93-205), as amended,
or under ORS 496.171 to 496.192.
(b) 'Native fish' means a fish indigenous to Oregon and not
introduced. Naturally produced fish and hatchery produced fish
are both native fish if the fish are indigenous to Oregon and not
introduced.
(c) 'Naturally produced' means a fish that reproduces and
completes its full life cycle in its natural habitat. Naturally
produced progeny of hatchery fish are naturally produced.
(d) 'Population' means a group of fish that:
(A) Originates and reproduces in a particular area at a
particular time;
(B) Does not interbreed to any substantial degree with any
other group reproducing in a different area or in the same area
at a different time; and
(C) Is composed of naturally produced fish, hatchery produced
fish or a combination of both.
(e) 'Recovery' means that a proportion of the constituent
populations of naturally produced native fish belonging to a
listed unit are sufficiently abundant, productive and diverse in
life histories and distribution such that the listed unit as a
whole is likely to be self-sustaining into the foreseeable
future.
(f) 'Self-sustaining' means having a sufficient proportion and
distribution of constituent populations:
(A) Likely to survive prolonged periods of habitat, oceanic,
climatic and environmental conditions that are detrimental to a
population; and
(B) Having habitat of sufficient quality and quantity likely to
provide survival rates adequate to maintain associated
ecological, cultural and economic benefits.
(2) The Legislative Assembly finds that the efforts of many
Oregonians have resulted in the creation of the Oregon Plan, and
recognizes that the Oregon Plan is guided by the following
mission and goals:
(a) The mission of the Oregon Plan is to restore the watersheds
of Oregon and to recover the fish and wildlife populations of
those watersheds to productive and sustainable levels in a manner
that provides substantial ecological, cultural and economic
benefits.
(b) The goals of the Oregon Plan that guide the
{ - citizens - } { + residents + } of Oregon in achieving the
mission of the Oregon Plan are the:
(A) Establishment and maintenance of an infrastructure that
provides long-term continuity in leadership, direction and
oversight of watershed restoration and species recovery.
(B) Continued opportunity for a wide range of natural resource
uses that are consistent with watershed restoration and species
recovery.
(C) Implementation of existing laws and environmental
regulations to achieve the mission before enacting new laws and
environmental regulations.
(D) Development and maintenance of funding for programs to
protect and restore watersheds.
(E) Development of expectations for the sustainability of
interrelated natural resources that accurately reflect a
scientific understanding of the physical and biological
constraints of the ecosystem.
(F) Enhancement of habitat available to support healthy
populations of fish and wildlife throughout the state.
(G) Production of populations of threatened or endangered
species to achieve levels of natural production consistent with
overall restoration goals.
(H) Establishment of a science-based system that supports
evaluation of the Oregon Plan and provides a basis for making
appropriate future changes to management programs.
(I) Coordination of activities and programs among federal,
state and local governments and other entities.
(J) Use of voluntary and collaborative processes to achieve the
mission of the Oregon Plan whenever possible.
(3) The Oregon Plan is a comprehensive program for the
protection and recovery of species and for the restoration of
watersheds throughout this state. The Oregon Plan combines the
regulatory and other actions of state and federal agencies and
local governments with voluntary watershed restoration by private
landowners and others. The Oregon Plan includes, but is not
limited to:
(a) Programs and policies found in the following statutes:
(A) ORS 196.600 to 196.905;
(B) ORS chapter 197;
(C) ORS chapter 274;
(D) ORS chapter 366;
(E) ORS chapter 390;
(F) ORS chapters 465, 466, 468 and 468B;
(G) ORS 469.300 to 469.563, 469.590 to 469.619, 469.930 and
469.992;
(H) ORS chapter 477;
(I) ORS chapters 496, 497, 498, 501, 506, 507, 508, 509 and
511;
(J) ORS 517.702 to 517.989;
(K) ORS 527.310 to 527.370, 527.610 to 527.770, 527.990 (1) and
527.992;
(L) ORS chapter 530;
(M) ORS chapters 536 to 543A;
(N) ORS 543A.005 to 543A.415; and
(O) ORS 568.210 to 568.808 and 568.900 to 568.933;
(b) Commitments of state agencies in the form of measures;
(c) Actions of local governments and federal agencies taken in
coordination with the state and consistent with the purposes of
the Oregon Plan;
(d) Voluntary activities undertaken by watershed councils, soil
and water conservation districts, landowners and other entities
and consistent with the purposes of the Oregon Plan;
(e) Scientific review by the Independent Multidisciplinary
Science Team, and others, of the activities performed under the
Oregon Plan;
(f) Programs and activities identified to address a coordinated
approach for the recovery of native salmonid populations within
Oregon;
(g) The guidance statement and framework provided by the
healthy streams partnership developed to provide cooperative
solutions and voluntary approaches to improving the water quality
of streams and to achieve healthy streams throughout Oregon; and
(h) Programs for the restoration and enhancement of multiple
species and of the habitat of those species.
(4) The Oregon Plan is subject to modification and alteration
to enhance program efforts consistent with appropriate guidance
principles developed by the Legislative Assembly.
(5) The purpose of the Oregon Plan is to enhance, restore and
protect Oregon's native salmonid populations, watersheds, fish
and wildlife habitat and water quality, while sustaining a
healthy economy.
(6) The Oregon Plan shall:
(a) Provide for coordination of local, state, federal and
tribal agency responsibilities and authorities for native
salmonid, watershed and habitat restoration throughout Oregon.
(b) Rely on watershed councils and soil and water conservation
districts, which are directed to cooperate in the development of
local watershed plans that assess watershed conditions and create
watershed action plans and strategies for the implementation of
the local watershed action plans.
(c) Focus state policies and resources on achieving native
salmonid recovery and watershed restoration while sustaining a
healthy economy and environment.
(7) The Oregon Plan shall focus on aiding the recovery of
species listed as threatened or endangered under the federal
Endangered Species Act or under ORS 496.171 to 496.192 until such
time as recovery is achieved. Once recovery has been achieved for
any species listed as threatened or endangered under ORS 496.171
to 496.192, the Governor shall direct the { - State Fish and
Wildlife Commission - } { + Oregon Natural Resources
Commission + } to begin rulemaking, as provided in ORS 496.176,
to remove the species from the list created pursuant to ORS
496.172. Upon recovery, adequate measures pursuant to the Oregon
Plan shall remain in place, as necessary, to help a species avoid
a return to threatened or endangered status.
(8)(a) The Governor, or the Governor's designee, shall
negotiate with federal officials to obtain assurances to the
effect that compliance with the Oregon Plan and the programs and
policies found in the statutes listed in subsection (3) of this
section and implementation of related state programs and policies
will satisfy federal requirements imposed by the federal
Endangered Species Act. Specifically, the Governor, or the
Governor's designee, shall seek an exemption to the requirements
of 16 U.S.C. 1533(d), shall seek to enter into a cooperative
agreement pursuant to 16 U.S.C. 1535(c) or shall seek to obtain a
permit that allows the incidental taking of species under 16
U.S.C. 1539(a).
(b) State agencies responsible for implementing the programs
and policies found in the statutes listed in subsection (3) of
this section shall work with the Governor, or the Governor's
designee, and with federal officials to provide the information
necessary to obtain the exemptions, agreement or permit specified
in paragraph (a) of this subsection.
SECTION 385. ORS 541.423 is amended to read:
541.423. (1) As used in this section, 'stewardship agreement'
means an agreement voluntarily entered into and signed by a
landowner, or representative of the landowner, and the State
Department of Agriculture or the { - State Board of
Forestry - } { + Oregon Natural Resources Commission + } that
sets forth the terms under which the landowner will self-regulate
to meet and exceed applicable regulatory requirements and achieve
conservation, restoration and improvement of fish and wildlife
habitat or water quality.
(2) The { - State Department of Agriculture and the State
Board of Forestry - } { + department and the commission + }
may, individually or jointly, enter into stewardship agreements
with landowners.
(3) The purposes of a stewardship agreement are to provide:
(a) An incentive for landowners to provide for conservation,
restoration and improvement of fish and wildlife habitat or water
quality;
(b) A mechanism to coordinate, facilitate and memorialize a
landowner's compliance with the requirements of state and federal
regulatory schemes; and
(c) A mechanism to combine or coordinate multiple incentive
programs among agencies and levels of government to:
(A) Improve the delivery of financial and technical assistance
to landowners engaged in conservation activities;
(B) Reduce redundancy among programs;
(C) Simplify application procedures;
(D) Leverage the investment of federal funds;
(E) Make more efficient use of technical assistance funds;
(F) Provide greater incentives for landowners;
(G) Foster partnerships and improve cooperation with
nongovernmental organizations;
(H) Provide greater environmental benefits;
(I) Tailor and more effectively target conservation programs
administered by federal, state and local governments to the
unique conservation needs of, and opportunities presented by,
individual parcels of eligible land; and
(J) Give landowners an increased level of regulatory certainty.
(4) The { - State Board of Forestry and the State Department
of Agriculture, in consultation with the State Department of Fish
and Wildlife, - } { + department and the commission + }shall
adopt by rule procedures and criteria for stewardship agreements.
The procedures and criteria shall include, but need not be
limited to:
(a) The certification of a land management plan which shall, at
a minimum, include:
(A) A comprehensive description and inventory of the subject
property, its features and uses; and
(B) A prescription for the protection of resources that exceeds
land management practices, standards and activities otherwise
required by law and that is designed to achieve conservation,
restoration and improvement of fish and wildlife habitat or water
quality.
(b) A requirement that each landowner subject to a stewardship
agreement demonstrate a clear capability to carry out the
provisions of the land management plan and have a past record of
good compliance with applicable laws and regulations regarding
land use and management.
(5) Each government agency that is a party to a stewardship
agreement shall conduct periodic audits on lands subject to the
stewardship agreement to determine whether the land management
plan is being implemented and whether the agreement should be
continued, revised or discontinued.
(6) Stewardship agreements may provide benefits to landowners
that include, but are not limited to:
(a) Expedited permit processing;
(b) Regulatory certainty;
(c) Priority consideration for cost-share assistance or other
financial incentives and technical assistance; and
(d) Government certification that certain land management
practices have been implemented.
(7) Within a stewardship agreement and on a case-by-case basis,
the { - State Department of Agriculture or the State Board of
Forestry - } { + department or the commission + } may provide a
landowner with an increased level of regulatory certainty
regarding state rules. The stewardship agreement may identify
specific voluntary landowner actions that exceed regulatory
requirements. In return, the { - State Department of
Agriculture or the State Board of Forestry - } { + department
or the commission + } may agree to exempt the landowner from
future changes to a specific rule.
(8) The { - State Department of Agriculture and the State
Board of Forestry - } { + department and the commission + }
may, individually or jointly, make a binding determination that
activities undertaken by a particular landowner, or a
representative of the landowner, as part of a stewardship
agreement are consistent with the purposes and policies of any
relevant Safe Harbor Agreements or Candidate Conservation
Agreements entered into between the State of Oregon and agencies
of the United States Government, pursuant to the federal
Endangered Species Act of 1973 (P.L. 93-205, 16 U.S.C. 1531 et
seq.) and federal regulations.
SECTION 386. ORS 564.105 is amended to read:
564.105. The Director of Agriculture has the responsibility to
protect and conserve the native plants of this state that are
threatened species or endangered species. In carrying out that
responsibility, the director:
(1) Shall conduct investigations of plant species native to
this state and determine whether any such species is a threatened
species or an endangered species.
(2) By rule, shall establish and publish, and from time to time
may revise, a list of plant species that are threatened species
or endangered species.
(3) By rule, shall establish programs for the protection and
conservation of plant species that are threatened species or
endangered species. As used in this subsection, 'conservation '
means the use of methods and procedures necessary to bring a
species to the point at which the measures provided under ORS
564.105 to 564.120 are no longer necessary. The methods and
procedures include, but are not limited to, activities associated
with scientific resources management such as research, census,
law enforcement, habitat acquisition and maintenance, propagation
and transplantation.
(4) By rule, shall establish a system of permits for scientific
taking of threatened species and endangered species under terms
and conditions that the director determines will minimize the
impact on the species taken.
(5) Shall cooperate with the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + } in
carrying out the provisions of ORS 496.172.
(6) Shall adopt administrative rules to carry out the
provisions of ORS 564.105 to 564.120.
(7) Shall set priorities for establishing programs under this
section after consideration of available funds and the immediacy
and seriousness of the threat to any listed species.
SECTION 387. ORS 570.850 is amended to read:
570.850. As used in ORS 570.855 to 570.865:
(1) 'Aquatic invasive species' means any aquatic species of
wildlife or any freshwater or marine invertebrate, as specified
by the { - State Fish and Wildlife Commission - } { + Oregon
Natural Resources Commission + } by rule, or any aquatic noxious
weeds as specified by the State Department of Agriculture by
rule.
(2) 'Recreational or commercial watercraft' means any boat, any
equipment used to transport a boat and any auxiliary equipment
for a boat, including but not limited to attached or detached
outboard motors.
SECTION 388. ORS 570.855 is amended to read:
570.855. (1) The { - State Department of Fish and
Wildlife - } { + Oregon Department of Natural Resources + },
the State Marine Board and the State Department of Agriculture
are authorized to:
(a) Operate check stations for the purpose of inspecting
recreational or commercial watercraft for the presence of aquatic
invasive species.
(b) Decontaminate, or recommend decontamination of, any
recreational or commercial watercraft that is inspected at a
check station operated under authority of this section.
(2) All check stations operated under authority of this section
must be plainly marked by signs that comply with all state and
federal laws and must be staffed by at least one uniformed
employee of the { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + }, the State Marine
Board or the State Department of Agriculture trained in
inspection and decontamination of recreational or commercial
watercraft.
SECTION 389. ORS 570.860 is amended to read:
570.860. (1) The { - State Department of Fish and
Wildlife - } { + Oregon Department of Natural Resources + },
after consultation with the State Marine Board, the State
Department of Agriculture and the Department of State Police,
shall report biennially to the Legislative Assembly on efforts to
prevent aquatic invasive species from entering this state and may
include in the report suggested legislation necessary to more
effectively prevent aquatic invasive species from entering this
state.
(2) Reports to the Legislative Assembly required under this
section must be made in accordance with ORS 192.245.
SECTION 390. ORS 570.865 is amended to read:
570.865. (1) A person is subject to a civil penalty in an
amount to be determined by the { - State Fish and Wildlife
Director - } { + Director of the Oregon Department of Natural
Resources + } of not more than $6,250 if the person knowingly
transports aquatic invasive species on or in a recreational or
commercial watercraft. A second or subsequent violation of this
subsection within a five-year period shall result in a civil
penalty in an amount not less than $5,000 and not more than
$15,000.
(2) Subsection (1) of this section does not apply to:
(a) A person who transports aquatic invasive species in ballast
water.
(b) A person who complies with all instructions for the proper
decontamination of the recreational or commercial watercraft
given by an employee authorized under ORS 570.855 (1) to inspect
recreational or commercial watercraft.
(c) A person who transports aquatic invasive species to the
{ - State Department of Fish and Wildlife - } { + Oregon
Department of Natural Resources + } or the State Department of
Agriculture, or to another destination designated by the
{ - State Fish and Wildlife Commission - } { + Oregon Natural
Resources Commission + } by rule, in a manner designated by the
commission for purposes of identifying or reporting an aquatic
invasive species.
(3) The civil penalties authorized in this section shall be
imposed as provided in ORS 183.745. Any civil penalty recovered
under this section shall be deposited in { - the State Wildlife
Fund. - } { + Oregon Natural Resources Fund. Moneys deposited
in the fund under this subsection are continuously appropriated
to the Oregon Department of Natural Resources for the purpose of
carrying out the duties, functions and powers as prescribed by
sections 1 (1) and (2) and 5 (1)(a) and (b) of this 2011 Act. + }
{ + (4) + } The commission by rule shall adopt the formula
the { - State Fish and Wildlife - } director shall use in
determining the amount of civil penalties under this section.
SECTION 391. ORS 576.215 is amended to read:
576.215. The Director of Agriculture and the Dean of the
College of Agricultural Sciences of Oregon State University, or
their respective official representative, shall be ex officio
members of a commodity commission, without right to vote. When a
commission is established for a seafood commodity, the
chairperson of the { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } or the official
representative of the chairperson shall also be an ex officio
member of the { + commodity + } commission, without right to
vote. ORS 576.206 and 576.225 to 576.255 do not apply to ex
officio members.
SECTION 392. ORS 609.345 is amended to read:
609.345. (1) The requirements for a permit in ORS 609.335 and
609.341 do not apply to the following:
(a) A wildlife rehabilitation center operated under a valid
permit issued by the { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } pursuant to ORS
497.308.
(b) A facility operated under a valid license or research
facility registration issued by the United States Department of
Agriculture pursuant to the federal Animal Welfare Act of 1970 (7
U.S.C. 2133 or 2136).
(c) An exotic animal protection organization, including humane
societies and animal shelters, incorporated under ORS chapter 65,
that houses an exotic animal at the written request of the state
or a state agency for a period not to exceed 30 days.
(d) A law enforcement agency.
(e) A licensed veterinary hospital or clinic.
(f) An educational facility that houses a member of the order
Crocodylia pursuant to a written request of the state, a local
government or a state agency stating the need to house the member
of the order Crocodylia at the educational facility.
(g) A person or organization that takes in an exotic animal in
an emergency situation but that does not otherwise qualify for an
exemption under this section. The person or organization may keep
the exotic animal for not more than 48 hours during which time
the person or organization must make a good faith effort to
contact a law enforcement agency, the State Department of
Agriculture or a wildlife rehabilitation center described in
paragraph (a) of this subsection.
(h) A person with a disability as defined in 42 U.S.C.
12102(2)(A) who possesses a service monkey if:
(A) The person presents, at the request of the State Department
of Agriculture, written proof from a medical doctor that the
person has a disability and that the service monkey performs
specific tasks for the benefit of the person with the disability;
(B) The service monkey was obtained from, and trained at, a
nonprofit organization whose mission is to improve the quality of
life of persons with disabilities; and
(C) The person complies with any requirements of the Americans
with Disabilities Act relating to service animals.
(2) As used in subsection (1)(h) of this section, 'service
monkey' means a nonhuman primate of the genus Cebus that is
trained to perform specific tasks for a person with a disability.
SECTION 393. ORS 610.002 is amended to read:
610.002. As used in this chapter, 'predatory animal' or '
predatory animals' includes feral swine as defined by State
Department of Agriculture rule, coyotes, rabbits, rodents and
birds that are or may be destructive to agricultural crops,
products and activities, but excluding game birds and other birds
determined by the { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } to be in need of
protection.
SECTION 394. ORS 610.003 is amended to read:
610.003. Notwithstanding any other provision of law, the State
Department of Agriculture, after consultation with the
{ - State Department of Fish and Wildlife - } { + Oregon
Department of Natural Resources + }, may implement bobcat and red
fox control procedures as authorized under this chapter, for a
specified period of time and within a specified area, if the
State Department of Agriculture determines such action is
necessary to protect domestic mammals or birds.
SECTION 395. ORS 610.020 is amended to read:
610.020. (1) From all money received by the { - State Fish
and Wildlife Commission - } { + Oregon Natural Resources
Commission + } from the General Fund, or from any funds eligible
for the purpose set forth in subsection (2) of this section, the
{ - State Fish and Wildlife - } commission shall set aside an
amount of at least $60,000 in any one calendar year in a budget
fund to be known as the Predatory Animal, Rabbit and Rodent
Control Fund.
(2) Such fund shall be expended by the { - State Fish and
Wildlife - } commission in cooperation with the State Department
of Agriculture and the United States Department of Agriculture
for the control and destruction of predatory animals, rabbits and
rodents in the state. Any part of such fund remaining unexpended
at the end of any calendar year shall remain in the fund for
expenditure during the succeeding year.
SECTION 396. ORS 619.095 is amended to read:
619.095. (1) Game meat donated to charitable organizations
shall be inspected by the State Department of Agriculture to
determine fitness for human consumption as provided in ORS
603.045 and 619.031 or shall be inspected and determined fit for
human consumption by employees of the { - State Department of
Fish and Wildlife - } { + Oregon Department of Natural
Resources + } or the Department of State Police who have been
trained by the State Department of Agriculture in the procedures
provided in ORS 603.045 and 619.031, and shall be processed by an
establishment approved by the State Department of Agriculture as
provided in ORS 619.026 and 619.031 and may be served for human
consumption by charitable organizations.
(2) As used in subsection (1) of this section:
(a) 'Charitable organization' means the Department of Human
Services, Oregon Health Authority, Oregon Youth Authority,
Department of Corrections institutions, low-income nutritional
centers, public school nutritional centers, senior nutritional
centers, state hospitals and other charitable organizations or
public institutions approved by the { - State Department of
Fish and Wildlife - } { + Oregon Department of Natural
Resources + }.
(b) 'Game meat' includes antelope, bighorn sheep, deer, elk,
moose and mountain goat.
SECTION 397. ORS 619.105 is amended to read:
619.105. No civil or criminal sanctions shall be imposed upon
State Department of Agriculture employees, { - State Department
of Fish and Wildlife - } { + Oregon Department of Natural
Resources + } employees or Department of State Police employees
for the good faith inspection of game meat as provided in ORS
619.095.
SECTION 398. ORS 622.220 is amended to read:
622.220. (1) The commercial cultivation of oysters, clams and
mussels is declared to be an agricultural activity subject to the
regulatory authority of the State Department of Agriculture. The
{ - State Fish and Wildlife Commission - } { + Oregon
Department of Natural Resources + } has jurisdiction over all
native oysters, clams and mussels in the waters of this state,
but not cultivated oysters, clams and mussels in plats. The
{ - commission - } { + Oregon Natural Resources Commission + }
shall prescribe { - such - } rules for the protection of
native oysters, clams and mussels and for the taking of native
oysters and oyster spat shells subject to the
{ - commission's jurisdiction as in the judgment of the
commission is for the best interests of the resource - } { +
jurisdiction of the Oregon Department of Natural Resources + }.
(2) It is unlawful for any person to take native oysters, clams
and mussels in violation of the rules adopted by the commission.
SECTION 399. ORS 624.165 is amended to read:
624.165. (1) Subject to ORS 624.070, game meat that has been
donated to a charitable organization and has been inspected and
processed as provided in ORS 619.095 may be served for human
consumption by that charitable organization.
(2) As used in subsection (1) of this section:
(a) 'Charitable organization' means the Department of Human
Services, Oregon Health Authority, Oregon Youth Authority,
Department of Corrections institutions, low-income nutritional
centers, public school nutritional centers, senior nutritional
centers, state hospitals and other charitable organizations or
public institutions approved by the { - State Department of
Fish and Wildlife - } { + Oregon Department of Natural
Resources + }.
(b) 'Game meat' includes antelope, bighorn sheep, deer, elk,
moose and mountain goat.
SECTION 400. ORS 646.515 is amended to read:
646.515. As used in ORS 646.515 to 646.545, unless the context
requires otherwise:
(1) 'Agricultural commodity' means any and all agricultural,
horticultural, viticultural and vegetable products produced in
this state, either in their natural state or as processed by a
producer for the purpose of marketing such product, including
bees and honey, but not including timber or timber products.
(2) 'Cooperative bargaining association' means:
(a) An association of producers formed or operated pursuant to
ORS chapter 62 with the purpose of group bargaining with respect
to the sale of any agricultural commodity or Oregon seafood
commodity.
(b) A fishermen's marketing association or fishermen's trade
association organized under ORS chapter 62 or 65.
(3)(a) 'Dealer' means, except as provided in paragraph (b) of
this subsection, any person or agent of the person who purchases
or contracts to purchase an agricultural commodity or Oregon
seafood commodity from a producer or agent of the producer, for
the purpose of packing, processing or marketing such commodity.
(b) 'Dealer' does not include any organization operating as an
agricultural cooperative or Oregon seafood harvester cooperative.
(4) 'Oregon seafood commodity' means any food fish as defined
in ORS 506.011 over which the { - State Fish and Wildlife
Commission - } { + Oregon Department of Natural Resources + }
has jurisdiction.
(5) 'Producer' means a person engaged in the business of
producing agricultural commodities or harvesting Oregon seafood
commodities.
SECTION 401. ORS 686.040 is amended to read:
686.040. (1) ORS 686.020 (1)(a) does not apply to commissioned
veterinary officers of the United States Army, or those in the
employ of other United States Government agencies while engaged
in their official capacity, unless they enter into a private
practice.
(2) Nothing in ORS 686.020 (1)(a) shall be so construed as to
prevent any person or the agent or employee of the person from
practicing veterinary medicine and surgery or dentistry in a
humane manner on any animal belonging to the person, agent or
employee or for gratuitous services or from dehorning and
vaccinating cattle for the person, agent or employee.
(3) Nothing in ORS 686.020 (1)(a) shall be so construed as to
prevent the selling of veterinary remedies and instruments by a
licensed pharmacist at the regular place of business of the
licensed pharmacist.
(4) A practitioner of allied health methods may practice that
method on animals without violating ORS 686.020 (1)(a), as long
as the practice is in conformance with laws and rules governing
the practitioner's practice and the practice is upon referral
from a licensed veterinarian for treatment or therapy specified
by the veterinarian.
(5) ORS 686.020 (1)(a) does not apply to the lay testing of
poultry by the whole blood agglutination test.
(6) A certified euthanasia technician holding an active,
current certificate may inject sodium pentobarbital, and any
other euthanasia substance approved by the Oregon State
Veterinary Medical Examining Board without violating ORS 686.020
(1)(a).
(7) The board by rule may specify circumstances under which
unlicensed persons may give vaccinations, administer an
anesthetic or otherwise assist in the practice of veterinary
medicine.
(8) Any individual licensed as a veterinarian in another state
may be used in consultation in this state with a person licensed
to practice veterinary medicine in this state provided the
consultation does not exceed 30 days in any 365 consecutive days.
(9) ORS 686.020 (1)(a) does not apply to authorized
representatives of the State Department of Agriculture in the
discharge of any duty authorized by the department.
(10) ORS 686.020 (1)(a) does not apply to an unlicensed
representative of a livestock association, cow-testing
association, or poultry association who, for the benefit of the
association, takes blood samples for laboratory tests for the
diagnosis of livestock or poultry diseases, but only if this
person has received authorization from the State Department of
Agriculture following a written request to the department.
(11) ORS 686.020 (1)(a) does not apply to persons permitted by
the { - State Department of Fish and Wildlife - } { + Oregon
Department of Natural Resources + } to rehabilitate orphaned,
sick or injured wildlife, as defined in ORS 496.004, for the
purpose of restoring the animals to the wild.
(12) ORS 686.020 (1)(a) does not apply to students, agents or
employees of public or private educational or medical research
institutions involved in educational or research activities under
the auspices of those institutions.
(13) ORS 686.020 (1)(a) does not apply to:
(a) Veterinarians employed by Oregon State University;
(b) Instructors of veterinary courses; or
(c) Students of veterinary science who participate in the
diagnosis and treatment of animals if the students:
(A) Are participating in the diagnosis and treatment of animals
while engaged in an educational program approved by the board or
a college of veterinary medicine accredited by the American
Veterinary Medical Association; and
(B) Are under the direct supervision of an Oregon licensed
veterinarian or a veterinarian approved by the board or Oregon
State University to supervise students in the educational
program.
SECTION 402. ORS 811.560 is amended to read:
811.560. This section provides exemptions from ORS 811.550 and
811.555. The following exemptions are applicable as provided
under ORS 811.550:
(1) When applicable, this subsection exempts school buses or
worker transport buses stopped on a roadway to load or unload
workers or children, providing that the flashing school bus
safety lights on the bus are operating.
(2) When applicable, this subsection exempts vehicles stopped,
standing or parked momentarily to pick up or discharge a
passenger.
(3) When applicable, this subsection exempts vehicles stopped,
standing or parked momentarily for the purpose of and while
actually engaged in loading or unloading property or passengers.
(4) When applicable, this subsection exempts vehicles owned or
operated by the state, a county or city when stopping, standing
or parking is necessary to perform maintenance or repair work on
the roadway.
(5) When applicable, this subsection exempts vehicles from the
prohibitions and penalties when the driver's disregard of the
prohibitions is necessary to avoid conflict with other traffic.
(6) When applicable, this subsection exempts vehicles acting in
compliance with law or at the direction of a police officer or a
traffic control device.
(7) When applicable, this subsection exempts the driver of a
vehicle that is disabled in such manner and to such extent that
the driver cannot avoid stopping or temporarily leaving the
disabled vehicle in a prohibited position.
(8) When applicable, this subsection exempts vehicles owned or
operated by the { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + } when stopping,
standing or parking is necessary to enable employees to release
fish.
(9) When applicable, this subsection exempts vehicles
momentarily stopped to allow oncoming traffic to pass before
making a right-hand or left-hand turn or momentarily stopped in
preparation for or while negotiating an exit from the road.
SECTION 403. ORS 821.260 is amended to read:
821.260. (1) A person commits the offense of hunting or
harassing animals from a snowmobile or an all-terrain vehicle if
the person does any of the following:
(a) Operates a snowmobile or an all-terrain vehicle in a manner
so as to run down, harass, chase or annoy any game animals or
birds or domestic animals.
(b) Hunts from a snowmobile or an all-terrain vehicle.
(2) This section does not apply to:
(a) Officers of the { - State Fish and Wildlife
Commission - } { + Oregon Department of Natural Resources + }.
(b) Persons under contract to the commission in the performance
of their official duties.
(c) Individuals who have secured a permit from the commission
for purposes of research and study.
(3) In addition to other penalties provided by this section,
operators or owners of a snowmobile or an all-terrain vehicle may
be liable as provided under ORS 821.310.
(4) The offense described in this section, hunting or harassing
animals from a snowmobile or an all-terrain vehicle, is a Class C
misdemeanor.
SECTION 404. ORS 830.175 is amended to read:
830.175. (1) The State Marine Board, upon consideration of the
size of a body of water and traffic conditions, may make special
regulations consistent with the safety and the property rights of
the public or when traffic conditions become such as to create
excessive congestion, relating to the operation of boats in any
waters within the territorial limits of any political subdivision
of this state. The regulations may include, but need not be
limited to, the establishment of designated speeds, the
prohibition of the use of motorboats and the designation of areas
and times for testing racing motorboats.
(2) The governing body of a political subdivision of this state
may apply to the board for special regulations relating to the
designation of moorage areas on lakes or reservoirs which are
under the jurisdiction of a public agency, or to the operation of
boats on the waters within the territorial limits of the
political subdivision. Within a reasonable time, the board shall
act upon the application in the manner provided in subsection (1)
of this section. When special regulations have been established
within a political subdivision in accordance with this
subsection, the governing body shall establish and maintain the
navigational markers prescribed by the board.
(3) The board may make special regulations relating to the
operation of boats, including the establishment of designated
speeds and prohibition of the use of motorboats for the
protection of game and game fish at the request of the
{ - State Fish and Wildlife Commission - } { + Oregon Natural
Resources Commission + }, or for carrying out the provisions of
the federal Wild and Scenic Rivers Act, Public Law 90-542, and
the Oregon Scenic Waterways Act, ORS 390.805 to 390.925. Action
necessary to implement this section, including but not limited to
the operation and manner of operation of boats, shall be by a
permit system initiated by the board.
(4) The board may designate certain rivers or sections of
rivers as hazardous. In making such designations, the board may
consider recommendations of guide associations incorporated in
this state.
(5) Regulations regarding operation of boats pursuant to this
section shall be adopted in accordance with the provisions of ORS
chapter 183.
(6) Any speeds in excess of the speeds designated by the board,
as provided in this section, shall be prima facie evidence of the
violation of ORS 830.315.
SECTION 405. ORS 830.185 is amended to read:
830.185. (1) No person shall operate a boat with an outboard or
inboard motor at a speed in excess of 10 miles per hour during
those hours of the day and on those days of the year that it is
lawful to fish, on East Lake, Paulina Lake and Elk Lake in
Deschutes County; Magone Lake in Grant County; Timothy Lake in
Clackamas County; and Davis Lake in Deschutes and Klamath
Counties.
(2) No person shall operate a boat with an outboard or inboard
motor at a speed in excess of 10 miles per hour on the following
named waters of this state located in the counties named:
_________________________________________________________________
CountiesLakes and Reservoirs
ClackamaOn that portion of the waters of the reservoir known as
North Fork Reservoir which lies upstream from a line
drawn across the reservoir at right angles to the thread
of the stream at a point 2.3 miles upstream from the
North Fork Dam measured along the thread of the stream
DeschuteHosmer, Lava, Little Cultus, Little Lava, Sparks Lakes
and Crane Prairie Reservoir
JeffersoOn that portion of the waters behind Pelton Dam, known
as Lake Simtustus, which lies upstream from a line drawn
across the lake at right angles to the thread of the
stream at a point 0.85 miles upstream from the Pelton
Dam measured along the thread of the stream
Klamath That portion of Upper Klamath Lake that lies west of a
line beginning at a point on the north shore of Pelican
Bay one-quarter mile east of Crystal Creek and extending
due south to the opposite shore of the lake; any stream,
creek or canal that leads into the portion of Upper
Klamath Lake described above including Crystal Creek,
Recreation Creek and Four-Mile Creek, also known as
Harriman Creek
Lane Waldo Lake
Linn Smith and Trailbridge Reservoirs
Wasco Clear Lake
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
_________________________________________________________________
(3)(a) The State Marine Board shall establish an appropriate
decibel rating and speed restriction on Diamond Lake in Douglas
County to allow recreational boating that is not limited to
fishing. Recreational boating does not include operating a jet
ski or similar personal watercraft. The speed established by the
board:
(A) May not exceed 45 miles per hour between the hours of 9
a.m. and 6 p.m.;
(B) May not exceed 10 miles per hour between the hours of 6
p.m. and 9 a.m.; and
(C) Shall be restricted to 10 miles per hour at all times in
any area within 200 yards of any boat ramp, boat dock, swimming
area, inlet or outlet of the lake, designated campground or
summer home.
(b) The board shall reduce the speed restriction on Diamond
Lake to 10 miles per hour at all hours when the { - State Fish
and Wildlife Director - } { + Director of the Oregon Department
of Natural Resources + } determines that the health of Diamond
Lake is restored and the lake can be restocked for fishing.
SECTION 406. ORS 830.560 is amended to read:
830.560. (1) As used in this section:
(a) 'Aquatic invasive species' means any aquatic life or marine
life determined by the { - State Fish and Wildlife
Commission - } { + Oregon Natural Resources Commission + } by
rule to be invasive or any aquatic noxious weed determined by the
State Department of Agriculture to be invasive.
(b) 'Launch' means any act that places a boat into a waterway
for recreational boating, for flushing or testing an engine or
for any other purpose.
(2) Except as provided in subsection (3) of this section, a
person may not launch a boat into the waters of this state if:
(a) The boat has any visible aquatic species on its exterior
hull or attached to any motor, propulsion system or component,
anchor or other attached apparatus outside of the hull, or on the
trailer or other device used to transport the boat; or
(b) The boat has any aquatic invasive species within its bilge,
livewell, motorwell or other interior location.
(3) The { - State Fish and Wildlife - } commission, in
consultation with the State Department of Agriculture, by rule
may allow the presence of certain aquatic species on or within a
boat for activities including but not limited to hunting and
photography.
(4) The State Marine Board shall provide information to the
public about any rules adopted under subsection (3) of this
section.
SECTION 407. Section 2, chapter 460, Oregon Laws 1995, as
amended by section 1, chapter 227, Oregon Laws 2001, section 1,
chapter 349, Oregon Laws 2009, and section 2a, chapter 832,
Oregon Laws 2009, is amended to read:
{ + Sec. 2. + } Notwithstanding any other provision of the
wildlife laws, during the period beginning January 1, 1996, and
ending January 2, 2014, the following provisions apply with
regard to the issuance and use of landowner preference tags
referred to in ORS 496.146 (4):
(1) Landowner preference tags shall be issued for the hunting
of deer, elk or antelope.
(2) Landowner preference tags may be used only for hunting on
the landowner's property.
(3) Landowner preference tags for the hunting of deer or elk
may be transferred to any person of the landowner's choosing and
shall be used for the taking of antlerless animals except as
authorized by subsection (6) of this section.
(4) Landowner preference tags for the hunting of antelope are
not transferable and may not be used for the taking of buck
antelope.
(5) Each landowner preference tag for the hunting of deer or
elk may be used to take two antlerless animals before, during or
after the hunting season for which the tags are valid for the
purpose of alleviating damage that is presently occurring to the
landowner's property, in accordance with such rules as the
{ - State Fish and Wildlife Commission - } { + Oregon Natural
Resources Commission + } may adopt.
(6) Landowner preference tags for the hunting of deer or elk
that are transferred to a person of the landowner's choosing who
is not a member of the landowner's immediate family may be used
to take an antlered animal only as follows:
(a) If the landowner receives one preference tag, that tag may
not be so used.
(b) If the landowner receives two, three or four preference
tags, one of those tags may be so used.
(c) If the landowner receives five, six or seven preference
tags, two of those tags may be so used.
(d) If the landowner receives eight, nine or 10 preference
tags, three of those tags may be so used.
(7) Landowners must pay a $30 fee to register for participation
in the program.
(8) Establishes a $15 fee for landowners to modify the
landowner's tag distribution.
SECTION 408. Section 1, chapter 461, Oregon Laws 2003, as
amended by section 1, chapter 8, Oregon Laws 2007, and section 1,
chapter 832, Oregon Laws 2009, is amended to read:
{ + Sec. 1. + } Notwithstanding any other provision of the
wildlife laws, the { - State Department of Fish and
Wildlife - } { + Oregon Department of Natural Resources + }
shall create and implement a Southwest Oregon Landowner
Preference Pilot Program during the period beginning July 1,
2004, and ending June 30, 2014, that:
(1) Addresses damage caused by elk on privately owned lands in
Jackson, Josephine, Coos, Curry and Douglas Counties.
(2) Provides landowner preference tags only for areas where elk
are currently causing damage, where there has been a history of
elk damage coupled with actions to alleviate elk damage or where
the department has designated the area as an elk deemphasis area.
(3) Limits the use of tags to taking antlerless elk.
(4) Limits the use of tags to taking elk on property owned,
leased or rented by the landowner complaining of elk damage or on
property owned, leased or rented by a business entity that
includes the landowner as a principal partner or shareholder.
(5) Allows exchange of unused general season elk tags or
controlled hunt elk tags for landowner preference tags.
(6) Does not impose a limit on the number of total tags
available for each property, except that no more than five tags
may be valid at any one time on a particular property.
(7) Does not impose a minimum acreage requirement for landowner
participation.
(8) Allows landowners to register for participation in the
program at any time prior to the issuance of tags.
(9) Establishes a $30 fee for landowners to register for
participation in the program.
(10) Establishes a $15 fee for landowners to modify the
landowner's tag distribution.
(11) Authorizes department biologists to sell and exchange
tags.
(12) Authorizes department biologists to establish the period
of validity for tags through negotiation with landowners.
(13) Requires landowners to record the number of elk taken and,
within 10 days after the end of a designated hunt period, to
report to the local department biologist the number of elk taken.
SECTION 409. Section 1, chapter 871, Oregon Laws 2009, is
amended to read:
{ + Sec. 1. + } For the period commencing January 1, 2010,
and ending December 31, 2015, the { - State Fish and Wildlife
Commission - } { + Director of the Oregon Department of Natural
Resources + } may evaluate the remote hatchbox program,
established pursuant to ORS 496.445 and 496.458, in select Rogue
River basin streams after consultation with local communities,
groups participating in the salmon and trout enhancement program
established under ORS 496.440, conservation groups working on
matters related to the Rogue River basin and the National Marine
Fisheries Service of the National Oceanic and Atmospheric
Administration. Consultation under this section must include, but
not be limited to, matters related to remote hatchbox placement
and monitoring, data collection, adult returns and fishery
contribution.
SECTION 410. Section 19, chapter 659, Oregon Laws 1993, as
amended by section 1, chapter 246, Oregon Laws 1997, section 12,
chapter 1006, Oregon Laws 1999, section 1, chapter 203, Oregon
Laws 2003, and section 1, chapter 291, Oregon Laws 2009, is
amended to read:
{ + Sec. 19. + } (1) In addition to the fees otherwise
prescribed by law, the issuer of each of the following licenses
shall charge and collect each time the license is issued, during
the period beginning January 1, 1994, and ending December 31,
2019, the following surcharges:
(a) Resident annual combination license issued under ORS
497.132, $4.
(b) Resident annual hunting license issued under ORS 497.102
(1)(a), $4.
(c) Nonresident annual hunting license issued under ORS 497.102
(1)(b), $4.
(d) Resident annual juvenile hunting license issued under ORS
497.102 (1)(c), $1.
(2) Payment of the surcharges required by this section does not
entitle the license holder to special access to any property or
to any other privilege. Notice to this effect shall be printed in
materials distributed by the { - State Department of Fish and
Wildlife - } { + Oregon Department of Natural Resources + } to
licensees.
SECTION 411. Section 11, chapter 913, Oregon Laws 2009, is
amended to read:
{ + Sec. 11. + } The { - State Department of Fish and
Wildlife - } { + Oregon Department of Natural Resources + } may
not issue a preliminary certificate of approval under ORS 315.138
after January 1, 2012.
{ +
STATE PARKS AND RECREATION DEPARTMENT + }
{ +
(Abolishment and Transfer of + }
{ +
Duties, Functions and Powers) + }
SECTION 412. { + (1) The State Parks and Recreation Department
and the State Parks and Recreation Commission are abolished. On
the operative date of this section, the tenure of office of the
members of the State Parks and Recreation Commission and of the
State Parks and Recreation Director ceases.
(2)(a) All the duties, functions and powers of the State Parks
and Recreation Department and the State Parks and Recreation
Commission are imposed upon, transferred to and vested in the
Oregon Department of Natural Resources. + }
{ + (b) Where the law imposed the duty or function upon or
vested the power in the State Parks and Recreation Director, the
duty, function or power is imposed upon, transferred to or vested
in the Director of the Oregon Department of Natural Resources.
(c) Where the law imposed the duty or function upon or vested
the power in the State Parks and Recreation Commission, the duty,
function or power is imposed upon, transferred to and vested in
the Oregon Natural Resources Commission. + }
{ +
(Transfer of Records, Property and Employees) + }
SECTION 413. { + (1) The State Parks and Recreation Director
and the State Parks and Recreation Commission shall:
(a) Deliver to the Oregon Department of Natural Resources all
records and property within the jurisdiction of the director or
the commission that relate to the duties, functions and powers
transferred by section 412 of this 2011 Act; and
(b) Transfer to the Oregon Department of Natural Resources
those employees engaged primarily in the exercise of the duties,
functions and powers transferred by section 412 of this 2011 Act.
(2) The Director of the Oregon Department of Natural Resources
and the Oregon Natural Resources Commission shall take possession
of the records and property, and shall take charge of the
employees and employ them in the exercise of the duties,
functions and powers transferred by section 412 of this 2011 Act,
without reduction of compensation but subject to change or
termination of employment or compensation as provided by law.
(3) The Governor shall resolve any dispute between the State
Parks and Recreation Department and the Oregon Department of
Natural Resources, or the State Parks and Recreation Commission
and the Oregon Natural Resources Commission relating to transfers
of records, property and employees under this section, and the
Governor's decision is final. + }
{ +
(Transfer of Unexpended Revenues) + }
SECTION 414. { + (1) The unexpended balances of amounts
authorized to be expended by the State Parks and Recreation
Department for the biennium beginning July 1, 2011, from revenues
dedicated, continuously appropriated, appropriated or otherwise
made available for the purpose of administering and enforcing the
duties, functions and powers transferred by section 412 of this
2011 Act are transferred to and are available for expenditure by
the Oregon Department of Natural Resources for the biennium
beginning July 1, 2011, for the purpose of administering and
enforcing the duties, functions and powers transferred by section
412 of this 2011 Act.
(2) The expenditure classifications, if any, established by
Acts authorizing or limiting expenditures by the State Parks and
Recreation Department remain applicable to expenditures by the
Oregon Department of Natural Resources under this section.
(3) The unexpended balances of amounts authorized to be
expended by the State Parks and Recreation Commission for the
biennium beginning July 1, 2011, from revenues dedicated,
continuously appropriated, appropriated or otherwise made
available for the purpose of administering and enforcing the
duties, functions and powers transferred by section 412 of this
2011 Act are transferred to and are available for expenditure by
the Oregon Natural Resources Commission for the biennium
beginning July 1, 2011, for the purpose of administering and
enforcing the duties, functions and powers transferred by section
412 of this 2011 Act.
(4) The expenditure classifications, if any, established by
Acts authorizing or limiting expenditures by the State Parks and
Recreation Commission remain applicable to expenditures by the
Oregon Natural Resources Commission under this section. + }
{ +
(Action, Proceeding and Prosecution) + }
SECTION 415. { + The transfer of duties, functions and powers
to the Oregon Department of Natural Resources by section 412 of
this 2011 Act does not affect any action, proceeding or
prosecution involving or with respect to such duties, functions
and powers begun before and pending at the time of the transfer,
except that:
(1) The Oregon Department of Natural Resources is substituted
for the State Parks and Recreation Department where the State
Parks and Recreation Department is involved in the action,
proceeding or prosecution; or
(2) The Oregon Natural Resources Commission is substituted for
the State Parks and Recreation Commission where the State Parks
and Recreation Commission is involved in the action, proceeding
or prosecution. + }
{ +
(Liability, Duty and Obligation) + }
SECTION 416. { + (1) Nothing in sections 412 to 418 of this
2011 Act, the amendments to statutes by sections 28 to 411, 422
to 576, 585 to 901, 912 to 1090, 1099 to 1112, 1122 to 1257, 1269
to 1749k, 1758 to 1780, 1791 to 2081 and 2091 to 2160 of this
2011 Act or the repeal of ORS 390.005, 390.114, 390.117, 390.127,
390.131, 390.200, 390.231 or 390.295 by section 2161 of this 2011
Act relieves a person of a liability, duty or obligation accruing
under or with respect to the duties, functions and powers
transferred by section 412 of this 2011 Act. The Oregon
Department of Natural Resources may undertake the collection or
enforcement of any such liability, duty or obligation.
(2) The rights and obligations of the State Parks and
Recreation Department, or of the State Parks and Recreation
Commission, legally incurred under contracts, leases and business
transactions executed, entered into or begun before the operative
date of section 412 of this 2011 Act are transferred to the
Oregon Department of Natural Resources or the Oregon Natural
Resources Commission. For the purpose of succession to these
rights and obligations:
(a) The Oregon Department of Natural Resources is a
continuation of the State Parks and Recreation Department where
the right or obligation was incurred by the State Parks and
Recreation Department; or
(b) The Oregon Natural Resources Commission is a continuation
of the State Parks and Recreation Commission where the right or
obligation was incurred by the State Parks and Recreation
Commission. + }
{ +
(Rules) + }
SECTION 417. { + (1) Notwithstanding the transfer of duties,
functions and powers by section 412 of this 2011 Act, the rules
of the State Parks and Recreation Department, or of the State
Parks and Recreation Commission, in effect on the operative date
of section 412 of this 2011 Act continue in effect until
superseded or repealed by rules of the Oregon Department of
Natural Resources or the Oregon Natural Resources Commission.
(2) References in rules of the State Parks and Recreation
Department to the State Parks and Recreation Department, or to an
officer or employee of the State Parks and Recreation Department,
are considered to be references to the Oregon Department of
Natural Resources or to an officer or employee of the Oregon
Department of Natural Resources.
(3) References in rules of the State Parks and Recreation
Commission to the State Parks and Recreation Commission, or to an
officer or employee of the State Parks and Recreation Commission,
are considered to be references to the Oregon Natural Resources
Commission or an officer or employee of the Oregon Natural
Resources Commission. + }
{ +
(References) + }
SECTION 418. { + (1) Whenever, in any uncodified law or
resolution of the Legislative Assembly or in any rule, document,
record or proceeding authorized by the Legislative Assembly,
reference is made to the State Parks and Recreation Department,
or to an officer or employee of the State Parks and Recreation
Department, the reference is considered to be a reference to the
Oregon Department of Natural Resources or to an officer or
employee of the Oregon Department of Natural Resources.
(2) Whenever, in any uncodified law or resolution of the
Legislative Assembly or in any rule, document, record or
proceeding authorized by the Legislative Assembly, reference is
made to the State Parks and Recreation Commission, or to an
officer or employee of the State Parks and Recreation Commission,
the reference is considered to be a reference to the Oregon
Natural Resources Commission or to an officer or employee of the
Oregon Natural Resources Commission. + }
{ +
(Agency Name Change) + }
SECTION 419. { + (1) For the purpose of harmonizing and
clarifying statutory law, the Legislative Counsel may substitute
for words designating the 'State Parks and Recreation
Department,' wherever they occur in statutory law, words
designating the 'Oregon Department of Natural Resources. '
(2) For the purpose of harmonizing and clarifying statutory
law, the Legislative Counsel may substitute for words designating
the 'State Parks and Recreation Director,' wherever they occur in
statutory law, words designating the 'Director of the Oregon
Department of Natural Resources.' + }
{ +
(Fund Name Change) + }
SECTION 420. { + For the purpose of harmonizing and clarifying
statutory law, the Legislative Counsel may substitute for words
designating the 'State Parks and Recreation Department Fund, '
wherever they occur in statutory law, words designating the '
Oregon Natural Resources Fund.' + }
{ +
(Commission Name Change) + }
SECTION 421. { + For the purpose of harmonizing and clarifying
statutory law, the Legislative Counsel may substitute for words
designating the 'State Parks and Recreation Commission, '
wherever they occur in statutory law, words designating the '
Oregon Natural Resources Commission.' + }
{ +
(Conforming Amendments) + }
SECTION 422. ORS 97.774 is amended to read:
97.774. (1) There is established within the { - State Parks
and Recreation Department - } { + Oregon Department of Natural
Resources + } the Oregon Commission on Historic Cemeteries
consisting of seven members appointed by the { - State Parks
and Recreation Director - } { + Director of the Oregon
Department of Natural Resources + }.
(2) The term of office of each member is four years, but a
member serves at the pleasure of the director. Before the
expiration of the term of a member, the director shall appoint a
successor whose term begins on July 1 next following. A member is
eligible for reappointment. If there is a vacancy for any cause,
the director shall make an appointment to become immediately
effective for the unexpired term.
(3) A member of the commission is entitled to compensation and
expenses as provided in ORS 292.495.
SECTION 423. ORS 97.776 is amended to read:
97.776. The members of the Oregon Commission on Historic
Cemeteries must be { - citizens - } { + residents + } of this
state who are well informed on the restoration and maintenance of
historic cemeteries. The { - State Parks and Recreation
Director - } { + Director of the Oregon Department of Natural
Resources + } shall select members from nominations made by
organizations of local historic cemeteries, organizations of
nonprofit cemeteries, the State Mortuary and Cemetery Board and
statewide cemetery associations. The director shall try to
appoint { - individuals - } to the commission { +
individuals + } who represent or are knowledgeable concerning
Native American burial places, rural cemeteries, family burial
places and metropolitan cemeteries.
SECTION 424. ORS 97.780 is amended to read:
97.780. The Oregon Commission on Historic Cemeteries shall:
(1) Maintain a listing of all historic cemeteries in this
state.
(2) Assist in coordination of restoration, renovation and
maintenance of Oregon's historic cemeteries.
(3) Make recommendations to the { - State Parks and
Recreation Director - } { + Director of the Oregon Department
of Natural Resources + } for projects and funding to help
maintain and improve Oregon's historic cemeteries.
(4) Obtain grant funding and seek legislative appropriations
for individual historic cemeteries and groups of historic
cemeteries.
(5) Make recommendations to the Legislative Assembly for
changes in law that will help protect historic cemeteries as part
of Oregon's heritage.
(6) Assist the director in locating and listing historic
cemeteries.
(7) Assist cemeteries listed as historic cemeteries with the
commission to rehabilitate and maintain those cemeteries and to
promote public education relating to historic cemeteries.
(8) Establish a process to obtain advice from authorities on
the subject of the care of old grave markers and graveyards as
part of any restoration process.
SECTION 425. ORS 97.784 is amended to read:
97.784. The { - State Parks and Recreation Department - }
{ + Oregon Department of Natural Resources + } shall provide
support services to the Oregon Commission on Historic Cemeteries.
One staff person of the department shall be the executive
secretary of the commission.
SECTION 426. ORS 186.130 is amended to read:
186.130. (1) The Champoeg Historical Pageant is proclaimed to
be the official pageant of Oregon statehood.
(2) The { - State Parks and Recreation Department - }
{ + Oregon Department of Natural Resources + } shall encourage
the further development of the pageant and promote increased
attendance at its performances.
SECTION 427. ORS 276.003 is amended to read:
276.003. (1) There is created in the General Fund of the State
Treasury a State Capitol Operating Account. Moneys credited to
the account are { + continuously + } appropriated
{ - continuously - } to the Legislative Administration
Committee to pay the expenses of operating, maintaining,
protecting and insuring the State Capitol and to reimburse the
{ - State Parks and Recreation Department - } { + Oregon
Department of Natural Resources + } for a share of the expenses
of ground maintenance, utilities and other necessary expenses.
(2) There is established the Oregon State Capitol Foundation
Fund in the State Capitol Operating Account of the General Fund
established under subsection (1) of this section. All moneys
received by the Legislative Administration Committee allocated to
the Oregon State Capitol Foundation shall be credited to the
Oregon State Capitol Foundation Fund. All moneys received under
ORS 292.047 and directed to the Oregon State Capitol Foundation
Fund shall be credited to the Oregon State Capitol Foundation
Fund. All moneys credited to the Oregon State Capitol Foundation
Fund are continuously appropriated to the foundation for the
purposes of ORS 173.500, except that moneys received under ORS
292.047 and credited to the Oregon State Capitol Foundation Fund
are continuously appropriated for the purposes of ORS 173.500
(2)(e).
(3) The Legislative Administration Committee may on behalf of
the State of Oregon solicit and accept gifts, grants and
donations from public and private sources for the purposes set
out in ORS 276.002. Such gifts, grants and donations shall be
deposited by the committee in separate, appropriate trust
accounts until such time as required to meet the obligations for
which the gifts, grants or donations were intended. When so
required, the committee shall deposit the amounts in the Oregon
State Capitol Foundation Fund, subject to any limitations imposed
by the donors.
(4) A gift or donation to the Legislative Administration
Committee or to the Oregon State Capitol Foundation is a gift or
donation to the State of Oregon.
SECTION 428. ORS 276.053 is amended to read:
276.053. (1) The State Capitol State Park is created,
consisting of:
(a) The grounds immediately surrounding the State Capitol
bordered by State Street on the south, Court Street on the north,
Cottage Street on the west and Waverly Street on the east; and
(b) The grounds surrounding the Department of Transportation
Building, the Public Service Building, the Bureau of Labor and
Industries Building and the State Library, bordered by Court
Street on the south, Center Street on the north, Winter Street on
the west and Capitol Street on the east.
(2) Except as provided in ORS 276.002 (4) and subsection (3) of
this section, the { - State Parks and Recreation Department - }
{ + Oregon Department of Natural Resources + } shall manage and
control the utilization of the State Capitol State Park.
(3) The Oregon Department of Administrative Services shall
manage and control the utilization of the underground parking
structures located beneath the area described in subsection
(1)(b) of this section and all aboveground structures that
provide access to the underground parking structures.
(4) The Oregon Department of Administrative Services shall
construct one or more permanent lavatories on the grounds of the
State Capitol State Park. Upon completion of construction, the
{ - State Parks and Recreation Department - } { + Oregon
Department of Natural Resources + } shall maintain and control
the utilization of the lavatories.
(5)(a) To commemorate and honor Indian tribes, the { - State
Parks and Recreation Department - } { + Oregon Department of
Natural Resources + } shall plan, erect and maintain one or more
monuments or other suitable markers that are sited within, and
are compatible with, the Walk of the Flags on the grounds of the
State Capitol State Park.
(b) The department shall consult with the Oregon State Capitol
Foundation, the Commission on Indian Services and each of the
federally recognized Indian tribes in Oregon in carrying out its
duties under this section.
(c) The department shall carry out its duties under
{ + paragraph (a) of this + } subsection { - (5)(a) of this
section - } only after obtaining funding from private sources.
SECTION 429. ORS 276.058 is amended to read:
276.058. The Capitol Planning Commission shall:
(1) Investigate the advisability of additions to, reductions of
or other changes in state buildings and grounds in the areas
described by ORS 276.054;
(2) Investigate, review and make recommendations on all
proposals of state agencies to add to, reduce or otherwise change
the use of a state building or grounds in the areas described by
ORS 276.054;
(3) Advise the { - State Parks and Recreation Department - }
{ + Oregon Department of Natural Resources + } on matters
related to the State Capitol State Park and on matters related to
development that is located within the State Capitol State Park;
and
(4) Advise the Oregon Department of Administrative Services on:
(a) The planning and location of state buildings in the areas
described by ORS 276.054;
(b) The development of the areas described by ORS 276.054,
including but not limited to general design, landscaping, traffic
management, monuments, statues and fountains; and
(c) All other matters connected with a proposed construction or
development to be undertaken by the state within the areas
described by ORS 276.054.
SECTION 430. ORS 276.096 is amended to read:
276.096. (1) In carrying out the duties of the Director of the
Oregon Department of Administrative Services under ORS 276.095,
the director shall consult with the Capitol Planning Commission,
the designated State Historic Preservation Officer, the
{ - State Parks and Recreation Department - } { + Oregon
Department of Natural Resources + }, the Oregon Historical
Society, the Arts Program of the Oregon Business Development
Department, local landmark commissions and historic societies and
the chief executive officers of those units of local government
in each area served by existing or proposed state offices and
shall solicit the comments of other community leaders and members
of the general public that the director considers appropriate.
(2) Whenever the director undertakes a review of state building
needs within a geographical area, the director shall request the
cooperation of the state historic preservation officer to
identify an existing building within the geographical areas that
is of historical, architectural or cultural significance and that
is suitable, whether or not in need of repair, alteration or
addition, for acquisition or purchase to meet the building needs
of state government.
SECTION 431. ORS 291.055 is amended to read:
291.055. (1) Notwithstanding any other law that grants to a
state agency the authority to establish fees, all new state
agency fees or fee increases adopted after July 1 of any
odd-numbered year:
(a) Are not effective for agencies in the executive department
of government unless approved in writing by the Director of the
Oregon Department of Administrative Services;
(b) Are not effective for agencies in the judicial department
of government unless approved in writing by the Chief Justice of
the Supreme Court;
(c) Are not effective for agencies in the legislative
department of government unless approved in writing by the
President of the Senate and the Speaker of the House of
Representatives;
(d) Shall be reported by the state agency to the Oregon
Department of Administrative Services within 10 days of their
adoption; and
(e) Are rescinded on July 1 of the next following odd-numbered
year, or on adjournment sine die of the regular session of the
Legislative Assembly meeting in that year, whichever is later,
unless otherwise authorized by enabling legislation setting forth
the approved fees.
(2) This section does not apply to:
(a) Any tuition or fees charged by the State Board of Higher
Education and state institutions of higher education.
(b) Taxes or other payments made or collected from employers
for unemployment insurance required by ORS chapter 657 or premium
assessments required by ORS 656.612 and 656.614 or contributions
and assessments calculated by cents per hour for workers'
compensation coverage required by ORS 656.506.
(c) Fees or payments required for:
(A) Health care services provided by the Oregon Health and
Science University, by the Oregon Veterans' Homes and by other
state agencies and institutions pursuant to ORS 179.610 to
179.770.
(B) Assessments and premiums paid to the Oregon Medical
Insurance Pool established by ORS 735.614 and 735.625.
(C) Copayments and premiums paid to the Oregon medical
assistance program.
(D) Assessments paid to the Department of Consumer and Business
Services under ORS 743.951 and 743.961.
(d) Fees created or authorized by statute that have no
established rate or amount but are calculated for each separate
instance for each fee payer and are based on actual cost of
services provided.
(e) State agency charges on employees for benefits and
services.
(f) Any intergovernmental charges.
(g) Forest protection district assessment rates established by
ORS 477.210 to 477.265 and the Oregon Forest Land Protection Fund
fees established by ORS 477.760.
(h) State Department of Energy assessments required by ORS
469.421 (8) and 469.681.
(i) Any charges established by the { - State Parks and
Recreation Director - } { + Director of the Oregon Department
of Natural Resources + } in accordance with ORS 565.080 (3).
(j) Assessments on premiums charged by the Insurance Division
of the Department of Consumer and Business Services pursuant to
ORS 731.804 or fees charged by the Division of Finance and
Corporate Securities of the Department of Consumer and Business
Services to banks, trusts and credit unions pursuant to ORS
706.530 and 723.114.
(k) Public Utility Commission operating assessments required by
ORS 756.310 or charges paid to the Residential Service Protection
Fund required by chapter 290, Oregon Laws 1987.
(L) Fees charged by the Housing and Community Services
Department for intellectual property pursuant to ORS 456.562.
(m) New or increased fees that are anticipated in the
legislative budgeting process for an agency, revenues from which
are included, explicitly or implicitly, in the legislatively
adopted budget for the agency.
(n) Tolls approved by the Oregon Transportation Commission
pursuant to ORS 383.004.
(o) Convenience fees as defined in ORS 182.126 and established
by the Oregon Department of Administrative Services under ORS
182.132 (3) and recommended by the Electronic Government Portal
Advisory Board.
(3)(a) Fees temporarily decreased for competitive or
promotional reasons or because of unexpected and temporary
revenue surpluses may be increased to not more than their prior
level without compliance with subsection (1) of this section if,
at the time the fee is decreased, the state agency specifies the
following:
(A) The reason for the fee decrease; and
(B) The conditions under which the fee will be increased to not
more than its prior level.
(b) Fees that are decreased for reasons other than those
described in paragraph (a) of this subsection may not be
subsequently increased except as allowed by ORS 291.050 to
291.060 and 294.160.
SECTION 432. ORS 307.110 is amended to read:
307.110. (1) Except as provided in ORS 307.120, all real and
personal property of this state or any institution or department
thereof or of any county or city, town or other municipal
corporation or political subdivision of this state, held under a
lease or other interest or estate less than a fee simple, by any
person whose real property, if any, is taxable, except employees
of the state, municipality or political subdivision as an
incident to such employment, shall be subject to assessment and
taxation for the assessed or specially assessed value thereof
uniformly with real property of nonexempt ownerships.
(2) Each leased or rented premises not exempt under ORS 307.120
and subject to assessment and taxation under this section which
is located on property used as an airport and owned by and
serving a municipality or port shall be separately assessed and
taxed.
(3) Nothing contained in this section shall be construed as
subjecting to assessment and taxation any publicly owned property
described in subsection (1) of this section that is:
(a) Leased for student housing by a school or college to
students attending such a school or college.
(b) Leased to or rented by persons, other than sublessees or
subrenters, for agricultural or grazing purposes and for other
than a cash rental or a percentage of the crop.
(c) Utilized by persons under a land use permit issued by the
Department of Transportation for which the department's use
restrictions are such that only an administrative processing fee
is able to be charged.
(d) County fairgrounds and the buildings thereon, in a county
holding annual county fairs, managed by the county fair board
under ORS 565.230, if utilized, in addition to county fair use,
for any of the purposes described in ORS 565.230 (2), or for
horse stalls or storage for recreational vehicles or farm
machinery or equipment.
(e) The properties and grounds managed and operated by the
{ - State Parks and Recreation Director - } { + Director of
the Oregon Department of Natural Resources + } under ORS 565.080,
if utilized, in addition to the purpose of holding the Oregon
State Fair, for horse stalls or for storage for recreational
vehicles or farm machinery or equipment.
(f) State property that is used by the Oregon University System
or the Oregon Health and Science University to provide parking
for employees, students or visitors.
(g) Property of a housing authority created under ORS chapter
456 which is leased or rented to persons of lower income for
housing pursuant to the public and governmental purposes of the
housing authority. For purposes of this paragraph, 'persons of
lower income' has the meaning given the phrase under ORS 456.055.
(h) Property of a health district if:
(A) The property is leased or rented for the purpose of
providing facilities for health care practitioners practicing
within the county; and
(B) The county is a frontier rural practice county under rules
adopted by the Office of Rural Health.
(4) Property determined to be an eligible project for tax
exemption under ORS 285C.600 to 285C.626 and 307.123 that was
acquired with revenue bonds issued under ORS 285B.320 to 285B.371
and that is leased by this state, any institution or department
thereof or any county, city, town or other municipal corporation
or political subdivision of this state to an eligible applicant
shall be assessed and taxed in accordance with ORS 307.123. The
property's continued eligibility for taxation and assessment
under ORS 307.123 is not affected:
(a) If the eligible applicant retires the bonds prior to the
original dates of maturity; or
(b) If any applicable lease or financial agreement is
terminated prior to the original date of expiration.
(5) The provisions of law for liens and the payment and
collection of taxes levied against real property of nonexempt
ownerships shall apply to all real property subject to the
provisions of this section. Taxes remaining unpaid upon the
termination of a lease or other interest or estate less than a
fee simple, shall remain a lien against the real or personal
property.
(6) If the state enters into a lease of property with, or
grants an interest or other estate less than a fee simple in
property to, a person whose real property, if any, is taxable,
then within 30 days after the date of the lease, or within 30
days after the date the interest or estate less than a fee simple
is created, the state shall file a copy of the lease or other
instrument creating or evidencing the interest or estate with the
county assessor. This section applies notwithstanding that the
property may otherwise be entitled to an exemption under this
section, ORS 307.120 or as otherwise provided by law.
SECTION 433. ORS 358.487 is amended to read:
358.487. (1) An owner of historic property desiring
classification and special assessment under ORS 358.487 to
358.543 for the property shall apply to the State Historic
Preservation Officer on forms approved by the officer.
(2) The application must include or be accompanied by:
(a) A preservation plan as defined in ORS 358.480. The
preservation plan must commit the applicant to expend, within the
first five years for which historic property special assessment
is granted, an amount not less than 10 percent of the historic
property's real market value determined as of the assessment date
for the first tax year to which the historic property special
assessment applies. The focus of the preservation plan must be on
exterior features, especially those visible from a public way,
and structural members of the property. The treatment of
significant interior features, as determined by the State
Historic Preservation Officer, may also be included in the plan,
but unless specifically required by the officer, work in
bathrooms, kitchens, basements and attics is not included in the
preservation plan. Work proposed in the plan must meet the
historic rehabilitation standards.
(b) Payment of an application fee equal to:
(A) One-tenth of one percent of the assessed value of the
property, as of the assessment date, for the year in which
application is made; or
(B) For property that does not have an assessed value,
one-tenth of one percent of the product of the real market value
of the property for the tax year in which the application is made
multiplied by the ratio of the average maximum assessed value
over the average real market value for that tax year of property
in the same area and property class.
(c) A copy of the property's current tax statement.
(d) Proof that the owner has property insurance on the property
in an amount equal to the replacement value of the property.
(e) The written consent of the owner to the viewing of the
property by the State Historic Preservation Officer.
(3) The application must be made before April 1 of the
assessment year for which classification and special assessment
as historic property are desired.
(4)(a) Property must be classified as historic property in
order to be certified for historic property special assessment.
(b) Notwithstanding paragraph (a) of this subsection, property
may be certified for historic property special assessment upon a
determination of eligibility by the State Historic Preservation
Officer under ORS 358.480 (11)(b) or (c). Property certified
under this paragraph must become listed in the National Register
of Historic Places within two years of certification under ORS
358.490.
(5) Classification and special assessment pursuant to an
application made under this section are granted for 10
consecutive property tax years, starting in the tax year
beginning on July 1 of the assessment year described in
subsection (3) of this section.
(6) The application fee required under subsection (2) of this
section shall be deposited in the { - State Parks and
Recreation Department Fund for use by the State Parks and
Recreation Director - } { + Oregon Natural Resources Fund for
use by the Director of the Oregon Department of Natural
Resources, + } or for transfer to the Oregon Property Management
Account established under ORS 358.680 to 358.690, upon the advice
of the State Advisory Committee on Historic Preservation. The
application fee becomes nonrefundable after certification as
described in ORS 358.495.
SECTION 434. ORS 358.570 is amended to read:
358.570. (1) To { - assure - } { + ensure + } the
conservation and development of Oregon's heritage there is
established in the
{ - State Parks and Recreation Department - } { + Oregon
Department of Natural Resources + } the Oregon Heritage
Commission consisting of nine voting members appointed by the
Governor and eight ex officio members as described in ORS
358.575.
(2) The term of office of each member is four years, but a
member serves at the pleasure of the Governor. Before the
expiration of the term of a member, the Governor shall appoint a
successor whose term begins on July 1 next following. A member is
eligible for reappointment. If there is a vacancy for any cause,
the Governor shall make an appointment to become immediately
effective for the unexpired term.
(3) A member of the commission is entitled to actual and
necessary travel and other expenses as provided in ORS 292.495.
SECTION 435. ORS 358.583 is amended to read:
358.583. (1) As used in this section, 'museum' means a public
institution or private nonprofit Oregon corporation primarily
devoted to the acquisition and public exhibition of specimens,
artifacts, articles, documents and other items that relate to
history, anthropology, archaeology, science or art and that have
historical significance.
(2) The purpose of this section is to direct the Oregon
Heritage Commission to assist in projects for the collection and
management of heritage collections and for heritage-related
tourism and to assist in projects related to the heritage aspects
of education and interpretation.
(3) In addition to the other duties of the commission, the
commission shall:
(a) Make biennial competitive grants to museums for projects
related to Oregon's heritage, including but not limited to
projects involving the collection and management of heritage
collections, the promotion of heritage-related tourism and the
provision of education and other interpretations related to
heritage;
(b) With the assistance of the Oregon Historical Society and
the Oregon Museums Association, determine the eligibility of a
museum for a competitive grant;
(c) Advise, upon request, museum governing bodies, county
governing bodies, city governing bodies and interested citizens
of the availability of competitive grants; and
(d) Request, with the advice of the Oregon Historical Society
and the Oregon Museums Association, rules for the { - State
Parks and Recreation Commission - } { + Oregon Natural
Resources Commission + } to adopt under ORS 358.585 for the
purpose of carrying out the grant program.
SECTION 436. ORS 358.585 is amended to read:
358.585. In accordance with applicable provisions of ORS
chapter 183, the { - State Parks and Recreation Commission - }
{ + Oregon Natural Resources Commission + } may adopt rules, as
requested by the Oregon Heritage Commission, for the
administration of the laws that the commissions are charged with
administering.
SECTION 437. ORS 358.640 is amended to read:
358.640. (1) The { - State Parks and Recreation
Department - } { + Oregon Department of Natural Resources + },
in consultation with the Oregon Heritage Commission, shall
identify and catalog state-owned historic artifacts.
(2) The { - State Parks and Recreation - } department shall
make recommendations to any state agency or political subdivision
that possesses any historic artifact relating to its retention,
preservation, maintenance, use or transfer to the custody of any
public or private agency or person.
(3) Any state agency shall obtain approval from the { - State
Parks and Recreation - } department prior to transferring,
selling, demolishing, substantially altering or otherwise
disposing of any historic artifact.
(4) The { - State Parks and Recreation - } department shall
adopt rules pursuant to ORS chapter 183 to implement ORS 358.635
to 358.653.
SECTION 438. ORS 358.645 is amended to read:
358.645. A private owner of any historic artifact believed to
have state or national historic significance that the owner
wishes to give to the state or to a political subdivision may
request review of the significance of the property by the
{ - State Parks and Recreation Department - } { + Oregon
Department of Natural Resources + }.
SECTION 439. ORS 358.650 is amended to read:
358.650. (1) Whenever a prospective donor of any historic
artifact identified as historically significant pursuant to ORS
358.645 requires immediate acceptance of the property as a
condition of a gift, the { - State Parks and Recreation
Department - } { + Oregon Department of Natural Resources + }
may accept the gift on behalf of the state or political
subdivision and may place the gift in the custody of a state
agency or political subdivision under agreement between the
department and the agency or political subdivision.
(2) The { - State Parks and Recreation - } department may
transfer under agreement between the department and the agency or
political subdivision any gift accepted pursuant to this section
to the custody of an appropriate state agency or political
subdivision.
(3) The { - State Parks and Recreation - } department may,
pursuant to procedures adopted by rule, pay finders fees, rewards
or otherwise expend funds to acquire historic artifacts
previously owned by the state.
SECTION 440. ORS 358.680 is amended to read:
358.680. As used in ORS 358.683 to 358.690:
{ - (1) 'Director' means the State Parks and Recreation
Director. - }
{ - (2) - } { + (1) + } 'Committee' means the State
Advisory Committee on Historic Preservation established in ORS
358.622.
{ - (3) - } { + (2) + } 'Oregon Property Management
Program' means the program established in ORS 358.683.
{ - (4) - } { + (3) + } 'State Historic Preservation
Officer' means the officer designated under ORS 358.565.
SECTION 441. ORS 358.683 is amended to read:
358.683. (1) The { - State Parks and Recreation Director - }
{ + Director of the Oregon Department of Natural Resources + },
with the advice of the State Advisory Committee on Historic
Preservation shall formulate and implement an Oregon Property
Management Program. The program shall include, but need not be
limited to:
(a) Policies and plans for accepting and preserving historic
sites and property in Oregon;
(b) Criteria for selecting sites and property according to the
provisions of ORS 358.680 to 358.690; and
(c) Any other provision necessary to administer the program.
(2) The director and the State Advisory Committee on Historic
Preservation shall coordinate activities concerning historic
properties with the State Historic Preservation Officer.
(3) In accordance with any applicable provision of ORS chapter
183, the director may promulgate rules to carry out the
provisions of the Oregon Property Management Program.
SECTION 442. ORS 358.685 is amended to read:
358.685. In addition to any other duties or powers provided by
law, the { - State Parks and Recreation Director - }
{ + Director of the Oregon Department of Natural Resources + }
may, with the advice of the State Advisory Committee on Historic
Preservation:
(1) Except as otherwise provided in ORS 358.650 (1), accept,
from whatever source, appropriations, gifts or grants of money or
other property for the preservation of significant historic sites
and properties, and use the money or property to preserve
significant historic sites and properties.
(2) Sell or exchange property owned by the state and used for
state heritage or historic preservation purposes if the director
determines that the sale or exchange would be advantageous to the
state for the preservation of significant historic sites and
properties.
(3) Acquire by purchase, lease, agreement or gift real property
and all appropriate interests therein for significant sites and
properties of recreational value and purpose.
(4) Acquire by purchase, lease, agreement, gift or otherwise
real property and all interests therein and establish, operate
and maintain thereon significant historic sites and properties.
(5) Establish and develop significant historic sites and
properties and prescribe rules governing the use of significant
historic sites and properties established and developed under any
other provision of state law.
(6) By rule prescribe reasonable fees for recreational uses of
real property owned or managed by the { - administrator - }
{ + director + }, unless those fees or user charges are
otherwise prescribed by law or administrative rule.
(7) Enter into contracts with any person or governmental agency
for the development and encouragement of programs and projects
designed to preserve significant historic sites and properties.
(8) Perform the acts necessary for the establishment and
implementation of programs designed to preserve significant
historic sites and properties with agencies of the federal
government.
(9) Offer and pay rewards for the arrest and conviction of any
person who has violated any of the state heritage or historic
preservation laws. No reward shall exceed $100 for a single
arrest and conviction.
SECTION 443. ORS 358.687 is amended to read:
358.687. (1) The { - State Parks and Recreation Director - }
{ + Director of the Oregon Department of Natural Resources + }
shall report biennially to the Governor and to the Legislative
Assembly on activities of the State Advisory Committee on
Historic Preservation during the preceding biennium. The director
shall make any additional reports required by the Governor or the
Legislative Assembly.
(2) Reports required under subsection (1) of this section shall
be in the form and contain the information the director considers
appropriate, and shall contain the information required by the
Governor or the Legislative Assembly.
SECTION 444. ORS 358.690 is amended to read:
358.690. (1) The Oregon Property Management Account is
established as a separate account in the { - State Parks and
Recreation Department Fund - } { + Oregon Natural Resources
Fund + }. Except as otherwise provided by law, all moneys
received by the State Advisory Committee on Historic Preservation
under law shall be paid into the State Treasury and credited to
the account. All moneys in the account and all income, interest
and earnings from the moneys in the account are
{ + continuously + } appropriated
{ - continuously - } to the committee to carry out the state
heritage and historic preservation laws.
(2) The committee shall keep a record of all moneys deposited
in the Oregon Property Management Account. The record shall
indicate by separate cumulative accounts the source from which
the moneys are derived and the individual activity or program
against which each withdrawal is charged.
(3) Moneys in the Oregon Property Management Account shall be
accounted for separately and shall be stated separately in the
{ - State Parks and Recreation Department - } biennial budget
{ + of the Oregon Department of Natural Resources + }.
SECTION 445. ORS 366.155 is amended to read:
366.155. (1) The Department of Transportation shall, among
other things:
(a) { - So - } { + As + } far as practicable, compile
statistics relative to the public highways of the state and
collect all information in regard thereto which the Director of
Transportation may deem important or of value in connection with
highway location, construction, maintenance, improvement or
operation.
(b) Keep on file in the office of the department copies of all
plans, specifications and estimates prepared by the department.
(c) Make all necessary surveys for the location or relocation
of highways and cause to be made and kept in the department a
general highway plan of the state.
(d) Collect and compile information and statistics relative to
the mileage, character and condition of highways and bridges in
the different counties in the state, both with respect to state
and county highways.
(e) Investigate and determine the methods of road construction
best adapted in the various counties or sections of the state,
giving due regard to the topography, natural character and
availability of road-building materials and the cost of building
and maintaining roads under this Act.
(f) Prepare surveys, plans, specifications and estimates for
the construction, reconstruction, improvement, maintenance and
repair of any bridge, street, road and highway. In advertising
for bids on any such project the director shall invite bids in
conformity with such plans and specifications.
(g) Keep an accurate and detailed account of all moneys
expended in the location, survey, construction, reconstruction,
improvement, maintenance or operation of highways, roads and
streets, including costs for rights of way, under this Act, and
keep a record of the number of miles so located, constructed,
maintained or operated in each county, the date of construction,
the width of such highways and the cost per mile for the
construction and maintenance of the highways.
(h) Upon request of a county governing body, assist the county
on matters relating to road location, construction or
maintenance. Plans and specifications for bridges or culverts
that are provided under this paragraph shall be provided without
cost to the 10 counties with the lowest dedicated county road
funding, as defined in ORS 366.772. Standard specifications for
road projects shall be provided without cost to all counties. The
Department of Transportation shall determine an amount to be
charged for assistance under this paragraph in establishing
specifications and standards for roads under ORS 368.036. The
costs of assistance not specifically provided for under this
paragraph shall be paid as provided by agreement between the
county governing body and the director.
(i) Upon request of the { - State Parks and Recreation
Department, assist the State Parks and Recreation Department - }
{ + Director of the Oregon Department of Natural Resources,
assist the Oregon Department of Natural Resources + } in
evaluating the potential need for construction, reconstruction,
improvement, maintenance or operation of highways, roads and
streets that would result if the
{ - State Parks and Recreation Commission - } { + Oregon
Natural Resources Commission + } acquired and developed a new
historic site, park or recreation area under the criteria
established pursuant to ORS 390.112 or any other criteria
{ + established by the commission for acquiring a new historic
site, park or recreation area + } { - for acquisition
established by the State Parks and Recreation Commission - } .
(2) The director may require duties with respect to audits and
accounting procedures provided for in this section and ORS
366.165 to be performed and responsibilities to be assumed by the
fiscal officer of the { - department - } { + Department of
Transportation + } appointed under ORS 184.637.
(3) In carrying out the duties set forth in this section, the
director shall act in a manner that is consistent with the goal
set forth in ORS 468B.155.
SECTION 446. ORS 366.512 is amended to read:
366.512. (1) The Department of Transportation shall collect all
registration fees for campers, motor homes and travel trailers.
Such fees shall be { - paid into the State Parks and Recreation
Department Fund. - } { + transferred to the Oregon Natural
Resources Fund. Moneys deposited in the fund under this section
are continuously appropriated to the Oregon Department of Natural
Resources for purposes described in ORS 390.134 and 390.848. + }
(2) As used in this section:
(a) 'Camper' has the meaning given that term in ORS 801.180.
(b) 'Motor home' has the meaning given that term in ORS
801.350.
(c) 'Travel trailer' has the meaning given that term in ORS
801.565.
SECTION 447. ORS 366.552 is amended to read:
366.552. (1) The Department of Transportation and the
{ - State Parks and Recreation Department - } { + Oregon
Department of Natural Resources + } shall prepare and manage a
historic road program, in consultation with the Historic Columbia
River Highway Advisory Committee and other affected entities,
consistent with the purposes of the Columbia River Gorge National
Scenic Area Act of 1986 and the public policy of this state
declared in ORS 366.551.
(2) The departments shall inform the advisory committee of
those activities of the departments which may affect the
continuity, historic integrity and scenic qualities of the
Historic Columbia River Highway.
(3) The departments shall undertake efforts to rehabilitate,
restore, maintain and preserve all intact and usable segments of
the Historic Columbia River Highway and associated state parks.
The Department of Transportation may expend funds dedicated for
footpaths and bicycle trails under ORS 366.514 to construct
footpaths and bicycle trails on those portions of the Historic
Columbia River Highway that are parts of the state highway system
or that are county roads or city streets and the { - State
Parks and Recreation Department - } { + Oregon Department of
Natural Resources + } may incorporate those segments into the
Oregon recreation trails system under the provisions of ORS
390.950 to 390.989 and 390.995 (2).
(4) The departments may acquire real property, or any right or
interest therein, deemed necessary for the preservation of
historic, scenic or recreation qualities of the Historic Columbia
River Highway, for the connection of intact and usable segments,
or for the development and maintenance of parks along or in close
proximity to the highway. The departments shall encourage the
acquisition of lands, or interests in lands, by donation,
agreement, exchange or purchase.
(5) The departments shall assist and cooperate with other
agencies and political subdivisions of the state, state agencies,
the federal government, special purpose districts, railroads,
public and private organizations and individuals to the extent
necessary to carry out the provisions of ORS 366.550 to 366.553.
The departments may enter into such contracts as are necessary to
carry out these provisions.
SECTION 448. ORS 366.553 is amended to read:
366.553. (1) There is created in the Department of
Transportation an advisory committee to advise the Director of
Transportation and the Oregon Transportation Commission on policy
matters pertaining to the preservation and restoration of the
Historic Columbia River Highway. The committee shall consist of
10 members, including the { - State Parks and Recreation
Director - } { + Director of the Oregon Department of Natural
Resources + }, State Historic Preservation Officer, Director of
the Oregon Business Development Department or their delegates,
one member appointed by the Director of Transportation and six
citizen members, two residents each from Wasco, Hood River and
Multnomah Counties. The Governor shall appoint one member from
each of the three counties and each county commission shall
appoint one member respectively. Citizen members shall have
knowledge or specific interest in historic or scenic
preservation, engineering design, recreation or related
disciplines.
(2) The citizen members shall be appointed to terms of four
years, commencing on July 1 of the year of appointment. Members
of the advisory committee shall be entitled to expenses as
provided by ORS 292.495 (2).
(3) The committee shall review the department's preparation of
the historic road program and its ongoing management and submit
recommendations to the Director of Transportation.
(4) The committee shall review proposed highway-related
activities and other public actions, except for routine highway
maintenance, which may affect the historic integrity, continuity,
scenic values, public access and public recreational
opportunities within the Columbia River Highway Historic District
and submit recommendations to the director. The committee may
appoint subcommittees composed of qualified members or other
technical specialists, as required, to review plans, construction
or other subjects as designated by the committee. The director
shall provide notice to the committee of proposed activities,
actions or projects at the earliest possible opportunity.
(5) The committee may recommend to the director that a public
hearing with appropriate public notification be held for proposed
activities, actions or projects which significantly affect the
Historic Columbia River Highway.
(6) The committee shall meet regularly a minimum of four times
a year at times and places fixed by the chairperson of the
committee. The department shall provide personnel services to
assist the committee within the limits of available funds. The
committee shall adopt rules to govern its proceedings and may
select officers it considers necessary.
SECTION 449. ORS 366.744 is amended to read:
366.744. (1) The following moneys shall be allocated as
provided in subsection (2) of this section:
(a) The amount attributable to the increase in title fees by
the amendments to ORS 803.090 by section 1, chapter 618, Oregon
Laws 2003.
(b) The amount attributable to the increase in registration
fees by the amendments to ORS 803.420 by section 2, chapter 618,
Oregon Laws 2003, except for the amount { - paid to the State
Parks and Recreation Department Fund - } { + deposited in the
Oregon Natural Resources Fund + } under ORS 366.512; and
(c) The amount attributable to the increase in fees and tax
rates by the amendments to ORS 818.225, 825.476 and 825.480 by
sections 3, 4 and 5, chapter 618, Oregon Laws 2003.
(2) The moneys described in subsection (1) of this section
shall be allocated as follows:
(a) 57.53 percent to the Department of Transportation.
(b) 25.48 percent to the department to pay the principal and
interest due on bonds authorized under ORS 367.620 (3) that are
issued for replacement and repair of bridges on county highways.
However, any portion of the 25.48 percent that is not needed for
payment of principal and interest on the bonds described in this
paragraph shall be allocated to counties. Moneys allocated to
counties under this paragraph shall be distributed in the same
manner as moneys allocated to counties under ORS 366.739 are
distributed.
(c) 16.99 percent to the department to pay the principal and
interest due on bonds authorized under ORS 367.620 (3) that are
issued for replacement and repair of bridges on city highways.
However, any portion of the 16.99 percent that is not needed for
payment of principal and interest on the bonds described in this
paragraph shall be allocated to cities. Moneys allocated to
cities under this paragraph shall be distributed in the same
manner as moneys allocated to cities under ORS 366.739 are
distributed.
(3)(a) Multnomah County shall spend a majority of moneys
distributed to it under subsection (2)(b) of this section on
bridges in the county.
(b) Moneys distributed to Multnomah County under subsection
(2)(b) of this section that are not spent on bridges shall be
distributed equitably within the county, based on the agreement
described in paragraph (c) of this subsection.
(c) Multnomah County and the cities within the county shall
agree upon the distribution of moneys described in paragraph (b)
of this subsection. When the county and the cities have reached
an agreement, they shall notify the Oregon Transportation
Commission of the agreement. If the commission does not receive
notice of an agreement by June 30, 2004, the Department of
Transportation may not distribute moneys that would otherwise go
to the county under paragraph (b) of this subsection. Such moneys
shall revert to the State Highway Fund for use by the Department
of Transportation.
SECTION 449a. ORS 367.173 is amended to read:
367.173. The principal, interest, premium, if any, and the
purchase or tender price of the grant anticipation revenue bonds
issued under ORS 367.161 to 367.181 are payable solely from the
following moneys:
(1) Federal transportation funds.
(2) To the extent affirmatively pledged at the time issuance of
revenue bonds is authorized, the following moneys that are
lawfully available:
(a) Moneys deposited in the State Highway Fund established
under ORS 366.505.
(b) Except as provided in paragraph (c) of this subsection,
moneys, once deposited in the State Highway Fund established
under ORS 366.505, from the following sources may be
affirmatively pledged:
(A) Moneys from the taxes and fees on motor carriers imposed
under ORS 825.474 and 825.480.
(B) Moneys from the tax on motor vehicle fuel imposed under ORS
319.020.
(C) Moneys from the tax on fuel used in motor vehicles imposed
under ORS 319.530.
(D) Moneys described under ORS 803.090 from the titling of
vehicles.
(E) Moneys described under ORS 803.420 from the registration of
vehicles.
(F) Moneys described under ORS 807.370 relating to the issuance
of driver licenses and driver permits.
(G) Moneys received by the Department of Transportation from
taxes, fees or charges imposed after January 1, 2001, or other
revenues or moneys received by the department from sources not
listed in subparagraphs (A) to (F) of this paragraph that are
lawfully available to be pledged under this section.
(c) Moneys described in paragraph (b) of this subsection do not
include:
(A) Moneys provided for appropriations to counties under ORS
366.762 to 366.768.
(B) Moneys provided for appropriations to cities under ORS
366.785 to 366.820.
(C) Moneys { - in the account established under - }
{ + transferred to the Oregon Natural Resources Fund pursuant
to + } ORS 366.512 for parks and recreation.
SECTION 449b. ORS 367.605 is amended to read:
367.605. (1) Moneys deposited in the State Highway Fund
established under ORS 366.505 are pledged to payment of Highway
User Tax Bonds issued under ORS 367.615.
(2) Except as provided in subsection (3) of this section,
moneys, once deposited in the highway fund from the following
sources are subject to the use or pledge described in subsection
(1) of this section:
(a) Moneys from the taxes and fees on motor carriers imposed
under ORS 825.474 and 825.480.
(b) Moneys from the tax on motor vehicle fuel imposed under ORS
319.020.
(c) Moneys from the tax on fuel used in motor vehicles imposed
under ORS 319.530.
(d) Moneys described under ORS 803.090 from the titling of
vehicles.
(e) Moneys described under ORS 803.420 from the registration of
vehicles.
(f) Moneys described under ORS 807.370 relating to the issuance
of driver licenses and driver permits.
(g) Moneys received by the Department of Transportation from
taxes, fees or charges imposed after January 1, 2001, or other
revenues received by the department from sources not listed in
paragraphs (a) to (f) of this subsection that are available for
the use or pledge described by this section.
(3) Moneys described under subsection (2) of this section do
not include:
(a) Moneys provided for appropriations to counties under ORS
366.762 to 366.768.
(b) Moneys provided for appropriations to cities under ORS
366.785 to 366.820.
(c) Moneys { - in the account established under - }
{ + transferred to the Oregon Natural Resources Fund pursuant
to + } ORS 366.512 for parks and recreation.
(4) To the extent affirmatively pledged, moneys from the
following sources are subject to the use or pledge described in
subsection (1) of this section:
(a) Moneys received by the Department of Transportation from
the United States government.
(b) Any other moneys legally available to the department.
(5) Notwithstanding ORS 366.507, the lien or charge of any
pledge of moneys securing bonds issued under ORS 367.615 is
superior or prior to any other lien or charge and to any law of
the state requiring the department to spend moneys for specified
highway purposes.
SECTION 450. ORS 390.050 is amended to read:
390.050. (1) In addition to any other persons permitted to
enforce violations, the { - State Parks and Recreation
Department and any employee of the State Parks and Recreation
Department specifically designated by the State Parks and
Recreation Director - } { + Oregon Department of Natural
Resources, the Director of the Oregon Department of Natural
Resources and employees of the department who are authorized by
the director + } may issue citations for park and recreation
violations established under this chapter in the manner provided
by ORS chapter 153.
(2) All fines and court costs recovered from park and
recreation violations shall be paid to the clerk of the court
involved. Such moneys shall be credited and distributed under ORS
137.290 and 137.295 as monetary obligations payable to the state.
SECTION 451. ORS 390.065 is amended to read:
390.065. The Legislative Assembly finds that:
(1) Expenditures by visitors to Oregon state parks { + , + }
and by employees of the { - State Parks and Recreation
Department - } { + Oregon Department of Natural Resources
pursuant to this chapter, + } currently contribute approximately
$549 million each year to local economies throughout Oregon. The
acquisition, development, improvement, upgrading, preservation
and expansion of the capacity of facilities of the system of
state parks, including parks, park facilities, ocean shores,
scenic waterways, trails and historic sites in the State of
Oregon, do and will accomplish the purpose of creating jobs and
furthering economic development in Oregon by:
(a) Increasing the capacity, usefulness and attractive
qualities of public recreational facilities, thereby promoting
travel and tourism in Oregon;
(b) Generating business for and supporting the operations and
prosperity of businesses located in the areas of the public
recreational facilities; and
(c) Creating employment opportunities within this state through
the funding of development and improvement projects on which
workers will be employed.
(2) Based on the findings made in this section, the use of the
net proceeds from the operation of the Oregon State Lottery to
fund state park projects and to pay state park lottery bonds
described in ORS 390.063 is an appropriate use of state lottery
funds under section 4, Article XV of the Oregon Constitution, and
ORS 461.510.
SECTION 452. ORS 390.067 is amended to read:
390.067. (1) State park lottery bonds shall be issued only at
the request of the { - State Parks and Recreation Director - }
{ + Director of the Oregon Department of Natural Resources + }.
State park lottery bonds may be issued in an amount sufficient to
provide no more than $105 million of net proceeds to pay costs of
state park projects, plus the amounts required to pay
bond-related costs.
(2) The Oregon Parks for the Future Fund is established in the
State Treasury, separate and distinct from the General Fund. The
net proceeds from the sale of the state park lottery bonds
{ - which - } { + that + } are available to pay costs of
state park projects shall be credited to the Oregon Parks for the
Future Fund. Investment earnings on amounts in the Oregon Parks
for the Future Fund shall be credited to the Oregon Parks for the
Future Fund. All moneys from time to time credited to the Oregon
Parks for the Future Fund, including any investment earnings, are
{ - appropriated continuously to the State Parks and Recreation
Department - } { + continuously appropriated to the Oregon
Department of Natural Resources + } only for payment of costs of
state park projects and for payment of bond-related costs that
are allocable to state park lottery bonds. Amounts in the Oregon
Parks for the Future Fund shall be disbursed upon the written
request of the { - State Parks and Recreation Director - }
{ + Director of the Oregon Department of Natural Resources + }
to pay for costs of state park projects pursuant to subsection
(3) of this section, and upon the written request of the Director
of the Oregon Department of Administrative Services to pay for
bond-related costs that are allocable to state park lottery
bonds.
(3) The { - State Parks and Recreation Director - }
{ + Director of the Oregon Department of Natural Resources + }
shall apply amounts in the Oregon Parks for the Future Fund to
pay costs of state park projects. The { - State Parks and
Recreation - } director may make and administer contracts to
carry out state park projects. In addition, the director may
enter into agreements with any state agency or local government
that commits the { - State Parks and Recreation Department - }
{ + Oregon Department of Natural Resources + } to pay
anticipated funds from the Oregon Parks for the Future Fund to
the agency or local government for state park projects.
Agreements under this subsection may, subject to the provisions
of this section, provide for the remittance of the moneys on such
periodic basis, in such amounts, over such period of years and
with such priority over other commitments of such funds as the
director shall specify in the agreements. The obligation of the
state and the department to provide funds under any such
agreement shall be subject to the availability of amounts in the
Oregon Parks for the Future Fund and any other amounts lawfully
available to the { - State Parks and Recreation - }
department. The { - State Parks and Recreation Department - }
{ + Oregon Department of Natural Resources + } and any agency or
local government receiving proceeds of state park lottery bonds
shall, if so directed by the Oregon Department of Administrative
Services, take any action specified by the Oregon Department of
Administrative Services which is necessary to maintain the
excludability of lottery bond interest from gross income under
the United States Internal Revenue Code.
SECTION 453. ORS 390.111 is amended to read:
390.111. { - (1) The State Parks and Recreation Department is
created. The department consists of the State Parks and
Recreation Commission, the State Parks and Recreation Director
and all other officers and employees of the department. - }
{ - (2) - } { + (1) + } Except as may be provided by an
agreement to the contrary between the { - State Parks and
Recreation Commission - } { + Oregon Natural Resources
Commission + } and the county, city or political subdivision
thereof which exercised jurisdiction and authority over the park,
ground or place prior to acquisition by the state, the
{ - department - } { + Oregon Department of Natural
Resources + } has complete jurisdiction and authority over all
state parks, waysides { + , + } and scenic, historic { - or - }
{ + and + } state recreation areas, { + and + } recreational
grounds or places acquired by the state for scenic, historic,
natural, cultural or recreational purposes except as otherwise
provided by law.
{ - (3) - } { + (2) + } The department shall manage and
control the utilization of the grounds included within the State
Capitol State Park under ORS 276.053.
SECTION 454. ORS 390.112 is amended to read:
390.112. The { - State Parks and Recreation Department shall
propose to the State Parks and Recreation Commission - }
{ + Oregon Department of Natural Resources shall propose to the
Oregon Natural Resources Commission + } additional criteria for
the acquisition and development of new historic sites, parks and
recreation areas. The criteria shall include but need not be
limited to:
(1) Criteria to address opportunities that may be lost to the
department if acquisition is delayed, such as Whelan Island in
Tillamook County and Cape Sebastian in Curry County;
(2) Criteria to protect significant cultural and historic
properties, such as Thompson's Mills in Linn County, Fort Rock
Cave in Lake County, Fort Yamhill in Polk County and Keil House
in Marion County; and
(3) Criteria to satisfy the need for overnight and large group
use facilities on the perimeter of urban population centers, such
as Columbia and Washington Counties.
SECTION 455. ORS 390.121 is amended to read:
390.121. In carrying out its responsibilities { - , the State
Parks and Recreation Commission - } { + under this chapter, the
Oregon Natural Resources Commission + } may:
(1) Acquire by purchase, agreement, donation or by exercise of
eminent domain, real property or any right or interest therein
deemed necessary for the operation and development of state
parks, roads, trails, campgrounds, picnic areas, boat ramps,
nature study areas, waysides, relaxation areas, visitor and
interpretive centers, department management facilities, such as
shops, equipment sheds, office buildings, park ranger residences
or other real property or any right or interest because of its
natural, scenic, cultural, historic or recreational value, or any
other places of attraction and scenic or historic value which in
the judgment of the { - State Parks and Recreation
Department - } { + Oregon Department of Natural Resources + }
will contribute to the general welfare, enjoyment and pleasure of
the public.
(2) Construct, improve, develop, manage, operate and maintain
facilities and areas, including but not limited to roads, trails,
campgrounds, picnic areas, boat ramps and nature study areas
named in subsection (1) of this section.
(3) Sell, lease, exchange or otherwise dispose or permit use of
real or personal property, including equipment and materials
acquired by the department, if in the opinion of the department
it is no longer needed, required or useful for department
purposes, except that:
(a) Real property may be leased when such real property will
not be needed for department purposes during the leasing period.
(b) Real property used for park purposes may be donated to the
United States Department of Interior for the purpose of
establishing a national monument when in the judgment of the
department such disposition would best serve the interests of
this state.
(c) Proceeds from the sale of all surplus or unsuitable lands
held for park purposes shall be deposited in the Parks Donation
Trust Fund for use for park land acquisition or development.
Proceeds from the sale of other property shall be { - paid by
the department to the State Treasurer for credit to the State
Parks and Recreation Department Fund, and any interest from this
fund shall be credited to this fund - } { + deposited in the
Oregon Natural Resources Fund and are continuously appropriated
to the department for purposes related to the administration of
this chapter + }.
(d)(A) Before offering forest products for sale, the department
shall cause the forest products to be appraised.
(B) If the appraised value of the forest products exceeds
$15,000, the department shall offer them for sale by competitive
bid. Prior to such bid offering, the department shall give notice
not less than once a week for three consecutive weeks by
publication in one or more newspapers of general circulation in
the county in which the forest products are located and by such
other media of communication as the department deems advisable.
The minimum bid price and a brief statement of the terms and
conditions of the sale shall be in the notice.
(C) The notice and competitive bidding under subparagraph (B)
of this paragraph shall not be required if the { - State Parks
and Recreation Director - } { + Director of the Oregon
Department of Natural Resources + } declares an emergency to
exist that requires the immediate removal of the timber. If an
emergency has been so declared:
(i) The timber, regardless of value, may be sold by a
negotiated price; and
(ii) The director shall make available for public inspection a
written statement giving the reasons for declaring the emergency.
(e) In the case of real property acquired by eminent domain,
the prior owner of real property for which sale, lease, exchange
or other disposal is proposed must be given the first opportunity
to reacquire the property in accordance with ORS chapter 35.
(4) Enter into contracts deemed necessary for the construction,
maintenance, operation, improvement or betterment of parks or for
the accomplishment of the purposes of chapter 904, Oregon Laws
1989. All contracts executed by the department shall be made in
the name of this state, by and through the department.
(5) In carrying out its duties, functions and powers under this
chapter, publish guides and other materials relating to
recreational opportunities in this state or to any program or
function administered by the department. The department may
arrange for the sale of such publications. The price of such
publications shall include the cost of publishing and
distributing the materials. All moneys received by the department
from the sale of publications shall be deposited in the
{ - State Parks and Recreation Department Fund - } { + Oregon
Natural Resources Fund and are continuously appropriated to the
department for purposes related to the administration of this
chapter + }. The department may contract for the publication of
the materials described in this subsection, including the
research, design and writing of the materials. The contract may
include, among other matters, provisions for advance payment or
reimbursement for services performed under the contract.
SECTION 456. ORS 390.122 is amended to read:
390.122. In establishing its priorities for { - acquisition,
the State Parks and Recreation Commission shall: - }
{ + acquiring real property, or a right to or interest in real
property, pursuant to this chapter, the Oregon Natural Resources
Commission shall: + }
(1) Consider the criteria and specific examples set forth in
ORS 390.112; and
(2) Encourage public nominations of significant resources that
meet the criteria established pursuant to ORS 390.112 and other
criteria pertaining to the acquisition of historic sites, parks
and recreation areas.
SECTION 457. ORS 390.124 is amended to read:
390.124. { - (1) In accordance with any applicable provision
of ORS chapter 183, the State Parks and Recreation Commission may
adopt rules necessary to carry out the duties, functions and
powers imposed by law upon the commission and the State Parks and
Recreation Department. Rules adopted pursuant to this section
shall be duly entered in the minutes and records of the
commission. - }
{ - (2) - } { + (1) + } The { - commission - }
{ + Oregon Natural Resources Commission + } may adopt rules that
assess reasonable charges, including fee reductions, waivers and
exemptions, for the use of areas established and maintained by
the { - department - } { + Oregon Department of Natural
Resources pursuant to this chapter + }. However, the commission
shall authorize the use of any state park, individual campsite or
day use fee area without charge:
(a) Upon the showing of proper identification, by a person
maintaining a foster home, as defined by ORS 418.625, and the
person's children, when accompanied by a foster child residing in
the home.
(b) Upon the showing of proper identification, by a person
maintaining a developmental disability child foster home, as
defined by ORS 443.830, and the person's children, when
accompanied by a foster child residing in the home.
(c) If a deed to, lease of or contract to use the property used
as a state park, campsite or day use fee area prohibits the
charging of fees for use of the property.
(d) Upon the showing of proper identification, by either a
disabled veteran or a person on leave from military active duty
status on Memorial Day, Independence Day or Veterans Day.
{ - (3) - } { + (2) + } The commission shall report to an
appropriate committee of the Legislative Assembly, no later than
January 31 of each odd-numbered year, on the fee reductions,
waivers and exemptions adopted by rule by the commission pursuant
to subsection { - (2) - } { + (1) + } of this section.
SECTION 458. ORS 390.134 is amended to read:
390.134. (1) As used in this section:
(a) 'Camper' has the meaning given that term in ORS 801.180.
(b) 'County' includes a metropolitan service district organized
under ORS chapter 268, but only to the extent that the district
has acquired, through title transfer, and is operating a park or
recreation site of a county pursuant to an intergovernmental
agreement.
(c) 'Motor home' has the meaning given that term in ORS
801.350.
(d) 'Travel trailer' has the meaning given that term in ORS
801.565.
{ - (2) The State Parks and Recreation Department Fund is
established separate and distinct from the General Fund. Moneys
in the fund are continuously appropriated to the State Parks and
Recreation Department for the purposes provided by law. The fund
shall consist of the following: - }
{ - (a) All moneys placed in the fund as provided by law. Any
interest or other income derived from the depositing or other
investing of the fund must be credited to the fund. - }
{ - (b) - } { + (2) + } All registration fees received by
the Department of Transportation for campers, motor homes and
travel trailers that are transferred to the { - fund under ORS
366.512. The funds - } { + Oregon Natural Resources Fund under
ORS 366.512 + } must be deposited in a separate subaccount
established under subsection (3) of this section.
{ - (c) Revenue from fees and charges pursuant to ORS
390.124. - }
(3) Any moneys { - placed in the fund for a particular
purpose may be placed - } { + deposited in the Oregon Natural
Resources Fund for a particular purpose under this chapter must
be deposited + } in a separate subaccount within the fund. Each
separate subaccount established under this subsection must be
separately accounted for. Moneys { - placed - }
{ + deposited + } in a subaccount must be used for the purposes
for which { - they - } { + the moneys + } are deposited.
(4) { - All of the moneys in the fund except those - }
{ + Except for + } moneys described in subsection (3), (5), (6)
or (7) of this section { + , all moneys deposited in the Oregon
Natural Resources Fund under this chapter + } must be deposited
in a separate subaccount within the fund { + . + } { - and used
by the State Parks and Recreation Department - } { + Moneys
deposited in a subaccount under this subsection are continuously
appropriated to the Oregon Department of Natural Resources + }
for the acquisition, development, maintenance, care and use of
park and recreation sites and for the maintenance and operation
of the Oregon State Fair. The moneys { + deposited + } in
{ - the - } { + a + } subaccount under this subsection must be
accounted for separately and stated separately in the { - State
Parks and Recreation Department's - } { + department's + }
biennial budget.
(5)(a) Thirty-five percent of the amount transferred to the
{ - State Parks and Recreation - } department under ORS
366.512 from the registration of travel trailers, campers and
motor homes and under ORS 803.601 from recreational vehicle trip
permits must be deposited in a separate subaccount within the
{ - fund - } { + Oregon Natural Resources Fund + } to be
distributed for the acquisition, development, maintenance, care
and use of county park and recreation sites. The moneys
{ + deposited + } in the subaccount under this paragraph must be
accounted for separately. The following apply to the distribution
of moneys under this paragraph:
(A) The moneys must be distributed among the several counties
for the purposes described in this paragraph. The distribution
shall be made at times determined by the { - State Parks and
Recreation - } department but must be made not less than once a
year.
(B) The sums designated under this paragraph must be remitted
to the county treasurers of the several counties by warrant.
(b) The department shall establish an advisory committee to
advise the department in the performance of its duties under this
subsection. The composition of the advisory committee under this
subsection is as determined by the department by rule. In
determining the composition of the advisory committee, the
department shall attempt to provide reasonable representation for
county officials or employees with responsibilities relating to
county parks and recreation sites.
(c) The department, by rule, shall establish a program to
provide moneys to counties for the acquisition, development,
maintenance, care and use of county park and recreation sites.
The rules { + adopted + } under this paragraph shall provide for
distribution of moneys based on use and need and, as the
department determines necessary, on the need for the development
and maintenance of facilities to provide camping sites for
campers, motor homes and travel trailers.
(6) The department shall create a separate City and County
Subaccount within the { - fund - } { + Oregon Natural
Resources Fund + } to be used to reimburse cities and counties as
provided in ORS 390.290.
(7) The department shall create a separate rural Fire
Protection District Subaccount { + within the Oregon Natural
Resources Fund + } to be used to provide funds for the fire
protection districts as provided in ORS 390.290.
(8) On or before January 15 of each odd-numbered year, the
{ - State Parks and Recreation Director - } { + Director of
the Oregon Department of Natural Resources + } shall report to
the Joint Committee on Ways and Means created by ORS 171.555 on
the use of moneys deposited pursuant to ORS 805.256 in the
{ + Oregon Natural Resources + } Fund. The director shall make
the report in a form and manner as the committee may prescribe.
SECTION 459. ORS 390.134, as amended by section 2, chapter 792,
Oregon Laws 2007, and section 47, chapter 11, Oregon Laws 2009,
is amended to read:
390.134. (1) As used in this section:
(a) 'Camper' has the meaning given that term in ORS 801.180.
(b) 'County' includes a metropolitan service district organized
under ORS chapter 268, but only to the extent that the district
has acquired, through title transfer, and is operating a park or
recreation site of a county pursuant to an intergovernmental
agreement.
(c) 'Motor home' has the meaning given that term in ORS
801.350.
(d) 'Travel trailer' has the meaning given that term in ORS
801.565.
{ - (2) The State Parks and Recreation Department Fund is
established separate and distinct from the General Fund. Moneys
in the fund are continuously appropriated to the State Parks and
Recreation Department for the purposes provided by law. The fund
shall consist of the following: - }
{ - (a) All moneys placed in the fund as provided by law. Any
interest or other income derived from the depositing or other
investing of the fund must be credited to the fund. - }
{ - (b) - } { + (2) + } All registration fees received by
the Department of Transportation for campers, motor homes and
travel trailers that are transferred to the { - fund under ORS
366.512. The funds - } { + Oregon Natural Resources Fund under
ORS 366.512 + } must be deposited in a separate subaccount
established under subsection (3) of this section.
{ - (c) Revenue from fees and charges pursuant to ORS
390.124. - }
(3) Any moneys { - placed in the fund for a particular
purpose may be placed - } { + deposited in the Oregon Natural
Resources Fund under this chapter may be deposited + } in a
separate subaccount within the fund. Each separate subaccount
established under this subsection must be separately accounted
for. Moneys { - placed - } { + deposited + } in a subaccount
must be used for the purposes for which
{ - they - } { + the moneys + } are deposited.
(4) { - All of the moneys in the fund except those - }
{ + Except for + } moneys described in subsection (3), (5), (6)
or (7) of this section { + , all moneys deposited in the Oregon
Natural Resources Fund under this chapter + } must be deposited
in a separate subaccount within the fund { + . + } { - and used
by the State Parks and Recreation Department - } { + Moneys
deposited in a subaccount under this subsection are continuously
appropriated to the Oregon Department of Natural Resources + }
for the acquisition, development, maintenance, care and use of
park and recreation sites and for the maintenance and operation
of the Oregon State Fair. The moneys { + deposited + } in
{ - the - } { + a + } subaccount under this subsection must be
accounted for separately and stated separately in the { - State
Parks and Recreation Department's - } { + department's + }
biennial budget.
(5)(a) Thirty percent of the amount transferred to the
{ - State Parks and Recreation - } department under ORS 366.512
from the registration of travel trailers, campers and motor homes
and under ORS 803.601 from recreational vehicle trip permits must
be deposited in a separate subaccount within the { - fund - }
{ + Oregon Natural Resources Fund + } to be distributed for the
acquisition, development, maintenance, care and use of county
park and recreation sites. The moneys { + deposited + } in the
subaccount under this paragraph must be accounted for separately.
The following apply to the distribution of moneys under this
paragraph:
(A) The moneys must be distributed among the several counties
for the purposes described in this paragraph. The distribution
shall be made at times determined by the { - State Parks and
Recreation - } department but must be made not less than once a
year.
(B) The sums designated under this paragraph must be remitted
to the county treasurers of the several counties by warrant.
(b) The department shall establish an advisory committee to
advise the department in the performance of its duties under this
subsection. The composition of the advisory committee under this
subsection is as determined by the department by rule. In
determining the composition of the advisory committee, the
department shall attempt to provide reasonable representation for
county officials or employees with responsibilities relating to
county parks and recreation sites.
(c) The department, by rule, shall establish a program to
provide moneys to counties for the acquisition, development,
maintenance, care and use of county park and recreation sites.
The rules { + adopted + } under this paragraph shall provide for
distribution of moneys based on use and need and, as the
department determines necessary, on the need for the development
and maintenance of facilities to provide camping sites for
campers, motor homes and travel trailers.
(6) The department shall create a separate City and County
Subaccount within the { - fund - } { + Oregon Natural
Resources Fund + } to be used to reimburse cities and counties as
provided in ORS 390.290.
(7) The department shall create a separate rural Fire
Protection District Subaccount { + within the Oregon Natural
Resources Fund + } to be used to provide funds for the fire
protection districts as provided in ORS 390.290.
(8) On or before January 15 of each odd-numbered year, the
{ - State Parks and Recreation Director - } { + Director of
the Oregon Department of Natural Resources + } shall report to
the Joint Committee on Ways and Means created by ORS 171.555 on
the use of moneys deposited pursuant to ORS 805.256 in the
{ + Oregon Natural Resources + } Fund. The director shall make
the report in a form and manner as the committee may prescribe.
SECTION 460. ORS 390.137 is amended to read:
390.137. (1) There is established in the { - State Parks and
Recreation Department - } { + Oregon Department of Natural
Resources + } a revolving fund known as the State Parks and
Recreation
{ - Department - } Operating Fund. Moneys shall be transferred
from the
{ - State Parks and Recreation Department Fund - } { + Oregon
Natural Resources Fund + } to the State Parks and Recreation
{ - Department - } Operating Fund as needed.
(2) Parks Donation Trust Fund moneys shall be transferred to
the State Parks and Recreation { - Department - } Operating
Fund for disbursement for purposes stated in ORS 390.153 (2).
(3) Disbursements may be made by check of the department upon
the State Treasurer signed by such officer or administrative head
as the { - State Parks and Recreation Director - }
{ + Director of the Oregon Department of Natural Resources + }
appoints for that purpose. Disbursements shall be made only in
payment of claims authorized by law for the ordinary expenditures
of the { - State Parks and Recreation - } department incurred
in the operation of the department or any of its divisions
{ + pursuant to this chapter or ORS chapter 565 + }. The
department shall keep accurate account of the funds.
(4) Upon approval of the Oregon Department of Administrative
Services and the State Treasurer, the { - State Parks and
Recreation Department - } { + Oregon Department of Natural
Resources + } may contract to write checks upon the State
Treasury to pay for claims and expenditures of the department.
SECTION 461. ORS 390.139 is amended to read:
390.139. (1) The { - State Parks and Recreation
Department - } { + Oregon Department of Natural Resources + }
shall administer a program designed to allow volunteers to assist
in the operation and maintenance of Oregon's state parks. The
program shall include public informational activities, but shall
be directed primarily toward encouraging and facilitating
involvement of volunteers in park operation and maintenance,
assigning each volunteer to a specific state park. The program
shall be called the Oregon Adopt-a-Park Program.
(2) Private landowners with parks adjacent to their property
are vital to the success of the Oregon Adopt-a-Park Program. The
{ - State Parks and Recreation - } department shall ensure
that participants in the program comply with requirements to
obtain permission from landowners for access across private
property if necessary to perform the volunteers' duties.
(3) Program funding is an authorized use of the { - State
Parks and Recreation Department Fund - } { + Oregon Natural
Resources Fund + } under ORS 390.134.
(4) The { - State Parks and Recreation - } department may
adopt any rules necessary for implementation of the Oregon
Adopt-a-Park Program.
(5) An agreement entered into between the { - State Parks and
Recreation - } department and a volunteer under subsection (1)
of this section shall include but need not be limited to:
(a) Identification of the designated state park. The volunteer
may request a specific state park the volunteer wishes to adopt,
but the assignment shall be at the discretion of the
{ - State Parks and Recreation - } department. In assigning
parks, the department shall coordinate and cooperate with
affected federal, state and local management agencies and private
landowners.
(b) Specification of the duties of the volunteer.
(c) Specification of the responsibilities of the volunteer.
The volunteer shall agree to abide by all rules related to the
program that are adopted by the { - State Parks and
Recreation - } department.
(d) Specification of the duration of the agreement. The
volunteer shall contract to care for the designated state park
for one year.
(6) The { - State Parks and Recreation - } department shall
create a recognition program to acknowledge the efforts of
volunteers, agencies and businesses that participate in the
Oregon Adopt-a-Park Program.
(7) The { - State Parks and Recreation - } department may
provide trash bags, supplies, equipment and safety information
and assistance to the participating volunteers.
(8) As used in this section, 'volunteer' may include an
individual, a group of individuals, a volunteer group or service
club, or any entity that is tax exempt under section 501(c)(3) of
the Internal Revenue Code, as amended.
SECTION 462. ORS 390.140 is amended to read:
390.140. { - (1) Under the direction of the State Parks and
Recreation Commission, the State Parks and Recreation Director
shall: - }
{ + (1) For purposes related to the administration of state
parks and other real property, or right or interest in a real
property, acquired under this chapter, the Director of the Oregon
Department of Natural Resources shall: + }
(a) Study and appraise the recreation needs of this state and
assemble and disseminate information relative to recreation,
considering both tourist and local needs.
(b) Investigate the recreation facilities, personnel,
activities and programs existing or needed in the various areas
in this state and, by consultation with the appropriate public or
private authorities in such areas, assist in the development and
coordination of recreation facilities, activities and programs.
(c) Advise, cooperate with and encourage counties, cities,
districts and other local agencies, areas and communities
interested in the development and use of recreation facilities,
activities and programs for the public benefit.
(d) Recommend and promote standards for recreation facilities,
personnel, activities and programs.
(e) Aid in recruiting, training and placing recreation
personnel.
(f) Promote recreation institutes and conferences.
{ - (2) Under the direction of the commission, the State
Parks and Recreation Director may: - }
{ + (2) For purposes related to the administration of state
parks and other real property, or a right to or interest in real
property, acquired under this chapter, the director may: + }
(a) Encourage and render assistance in the promotion of
training programs for volunteer and professional recreation
leaders in cooperation with other public and private agencies,
persons, groups, organizations and institutions interested in
recreation, and encourage the establishment of standards for
recreation personnel.
(b) Assist any state agency in rendering recreation services
and carrying out recreation functions in conformity with the
authorized powers and duties of such state agency, and encourage
and assist in the coordination of federal, state and local
recreation facilities, personnel, activities and programs.
SECTION 463. ORS 390.143 is amended to read:
390.143. (1) In order to further the interpretive and
educational functions of recreation facilities in Oregon, the
{ - State Parks and Recreation Director - } { + Director of
the Oregon Department of Natural Resources + } may enter into an
agreement with a private, nonprofit scientific, historic or
educational organization organized solely for the purpose of
providing interpretive services to recreation facilities in
Oregon.
(2) An organization entering into an agreement with the
director under subsection (1) of this section may:
(a) Provide educational or interpretive material for sale at a
recreation facility;
(b) Acquire display materials and equipment for exhibits at a
recreation facility;
(c) Provide support for special recreation facility
interpretive programs or environmental education programs;
(d) Support recreation facility libraries; or
(e) Provide support for other interpretive projects related to
a specific recreation facility.
(3) If the director enters into an agreement with a private
organization under subsection (1) of this section, the
{ - State Parks and Recreation Department - } { + Oregon
Department of Natural Resources + } may:
(a) Provide incidental personnel services to the organization's
interpretive program; and
(b) Provide space at a recreation facility for the interpretive
materials provided by the organization.
(4) Any money received from the sale of publications or other
materials provided by an organization pursuant to an agreement
entered into under this section shall be retained by the
organization for use in the interpretive or educational services
of the recreation facility for which the organization provides
interpretive services.
(5) As used in this section, 'recreation facility' includes but
is not limited to state parks and all recreational, historical
and scenic attractions owned or under the control of the State of
Oregon and administered by the { - State Parks and
Recreation - } department.
SECTION 464. ORS 390.144 is amended to read:
390.144. The { - State Parks and Recreation Director - }
{ + Director of the Oregon Department of Natural Resources + }
shall adopt rules to carry out the purpose of ORS 390.143. The
rules shall include but need not be limited to:
(1) Procedures and forms to be used by an organization desiring
to enter into an agreement with the director under ORS 390.143;
(2) Guidelines for approving the interpretive material an
organization proposes to provide to a recreation facility; and
(3) Provisions for renewing or dissolving an agreement between
an organization and the director.
SECTION 465. ORS 390.150 is amended to read:
390.150. The { - State Parks and Recreation Department - }
{ + Oregon Department of Natural Resources + } may accept and
expend, use or dispose of moneys and property from any public or
private source, including the federal government, made available
to the department in the form of grants, gifts, devises, bequests
or endowments for the purpose of carrying out any of the
provisions and purposes of ORS 390.140 to 390.150 or to
facilitate the carrying out of any of the functions of the
{ - State Parks and Recreation Director - } { + Director of the
Oregon Department of Natural Resources + } under ORS 390.140 to
390.150.
SECTION 466. ORS 390.153 is amended to read:
390.153. (1) The Parks Donation Trust Fund is established as a
fund in the State Treasury. All gifts or donations of money
received by the { - State Parks and Recreation Department - }
{ + Oregon Department of Natural Resources for purposes related
to the acquisition or management of state parks or other real
property, or a right or interest to real property, acquired under
this chapter + } shall be deposited with the State Treasurer and
credited by the treasurer to the fund. The treasurer may
establish subaccounts in the fund established in this section if
the treasurer determines that the terms of a gift or donation
require a separate subaccount. Any interest or other income
derived from the depositing or other investing of the fund shall
be credited monthly to the fund except that interest or other
income attributable to a subaccount shall be credited to that
subaccount.
(2) Moneys in the Parks Donation Trust Fund and in any
subaccount of the fund are continuously appropriated to the
{ - State Parks and Recreation Department - } { + Oregon
Department of Natural Resources + } for the purposes specified in
the gift or donation or, if no specific purpose is specified, for
park and recreation purposes determined by the { - State Parks
and Recreation Commission - } { + Oregon Natural Resources
Commission + }.
SECTION 467. ORS 390.155 is amended to read:
390.155. The { - State Parks and Recreation Department - }
{ + Oregon Department of Natural Resources + } may accept gifts
or donations of moneys or property to be used for specific or
general park and recreational purposes. Subject to the terms
specified in a gift or donation, the { - State Parks and
Recreation Commission - } { + Oregon Natural Resources
Commission + } may authorize use of gifts or donations in a
manner that, in the commission's judgment, best carries out the
intent of the gift or donation.
SECTION 468. ORS 390.180 is amended to read:
390.180. (1) The { - State Parks and Recreation Director - }
{ + Director of the Oregon Department of Natural Resources + }
shall adopt rules that:
(a) Establish the standards { - the State Parks and
Recreation Department shall use when that department - }
{ + that the Oregon Department of Natural Resources must use
when the department + }:
(A) Performs comprehensive statewide recreational planning; or
(B) Disburses any moneys to local governments or other state
agencies under { + park or recreational + } programs established
under state or federal law.
(b) Establish a process for the development of a master plan
for each state park, including public participation and
coordination with affected local governments.
(c) Establish a master plan for each state park, including an
assessment of resources and a determination of the capacity for
public use and enjoyment of each park, that the { - State Parks
and Recreation - } department shall follow in its development
and use of each park.
(d) Make state funding assistance available to nonprofit
veterans' organizations for the construction and restoration of
memorials honoring veterans and war memorials located on public
property.
(2) The { - State Parks and Recreation - } director shall
submit an adopted state park master plan to the local government
with land use planning responsibility for the subject park.
SECTION 469. ORS 390.190 is amended to read:
390.190. (1) A revolving fund not to exceed the aggregate
amount of $100,000 may be established within the { - State
Parks and Recreation Department Fund - } { + Oregon Natural
Resources Fund + } by a warrant drawn on any funds, other than
{ + the + } General Fund, appropriated to or authorized for
expenditure by the { - State Parks and Recreation
Department - } { + Oregon Department of Natural Resources + }.
{ - (2) The fund shall be at the disposal of the State Parks
and Recreation Department and may be used by the department: - }
{ + (2) The revolving fund shall be at the disposal of the
department and may be used by the department: + }
(a) To compensate employees for salaries, travel expenses,
relocation expenses and other work-related expenditures { +
necessary for the department to fulfill its duties under this
chapter + }; and
(b) To pay for services, supplies and materials not to exceed
$300 for any transaction { + necessary for the department to
fulfill its duties under this chapter + }.
(3) All vouchers for claims paid from the revolving fund shall
be approved by the { - State Parks and Recreation Director - }
{ + Director of the Oregon Department of Natural Resources + }.
When claims are so approved and audited, warrants covering them
shall be drawn in favor of the director and shall be used by the
director to reimburse the fund.
SECTION 470. ORS 390.195 is amended to read:
390.195. (1) The { - State Parks and Recreation
Department - } { + Oregon Department of Natural Resources + }
shall use state correctional institution inmate labor to improve,
maintain and repair buildings and property at state parks and
recreation areas whenever feasible. The provisions of ORS 279.835
to 279.855 and ORS chapters 279A, 279B and 279C do not apply to
the use of state correctional institution inmate labor under this
section.
(2) The { - State Parks and Recreation Director - }
{ + Director of the Oregon Department of Natural Resources + }
shall assign and supervise the work of the state inmates who are
performing the work described in subsection (1) of this section.
(3) Nothing in this section is intended to exempt the
{ - State Parks and Recreation - } department from the
provisions of ORS 279.835 to 279.855 for any purpose other than
the use of state correctional institution inmate labor.
SECTION 471. ORS 390.230 is amended to read:
390.230. (1) The right, title and interest of all state
agencies, other than the { - State Fish and Wildlife Commission
and - } political subdivisions, in the lands described in
subsection (2) of this section are hereby vested in the State
{ - or - } { + of + } Oregon by and through { - its State
Parks and Recreation Department - } { + the Oregon Department
of Natural Resources + }.
(2) All of the lands, together with the accretions thereto
lying westerly of the east line of section 7, township 8 north,
range 10 west, Willamette Meridian, Clatsop County, State of
Oregon, extending northerly to the main channel of the Columbia
River as it existed on May 19, 1967; bounded on the south by the
south line of said section 7 extended westerly to the low water
of the Pacific Ocean; and bounded on the north by the main
channel of said Columbia River extended downstream to the Pacific
Ocean.
{ + NOTE: + } Section 472 was deleted. Subsequent sections
were not renumbered.
SECTION 473. ORS 390.235 is amended to read:
390.235. (1)(a) A person may not excavate or alter an
archaeological site on public lands, make an exploratory
excavation on public lands to determine the presence of an
archaeological site or remove from public lands any material of
an archaeological, historical, prehistorical or anthropological
nature without first obtaining a permit issued by the { - State
Parks and Recreation Department - } { + Oregon Department of
Natural Resources + }.
(b) If a person who obtains a permit under this section intends
to curate or arrange for alternate curation of an archaeological
object that is uncovered during an archaeological investigation,
the person must submit evidence to the State Historic
Preservation Officer that the Oregon State Museum of Anthropology
and the appropriate Indian tribe have approved the applicant's
curatorial facilities.
(c) No permit shall be effective without the approval of the
state agency or local governing body charged with management of
the public land on which the excavation is to be made, and
without the approval of the appropriate Indian tribe.
(d) The { - State Parks and Recreation Director - }
{ + Director of the Oregon Department of Natural Resources + },
with the advice of the Oregon Indian tribes and Executive Officer
of the Commission on Indian Services, shall adopt rules governing
the issuance of permits.
(e) Disputes under paragraphs (b) and (c) of this subsection
shall be resolved in accordance with ORS 390.240.
(f) Before issuing a permit, the { - State Parks and
Recreation - } director shall consult with:
(A) The landowning or land managing agency; and
(B) If the archaeological site in question is associated with a
prehistoric or historic native Indian culture:
(i) The Commission on Indian Services; and
(ii) The most appropriate Indian tribe.
(2) The { - State Parks and Recreation - } department may
issue a permit under subsection (1) of this section under the
following circumstances:
(a) To a person conducting an excavation, examination or
gathering of such material for the benefit of a recognized
scientific or educational institution with a view to promoting
the knowledge of archaeology or anthropology;
(b) To a qualified archaeologist to salvage such material from
unavoidable destruction; or
(c) To a qualified archaeologist sponsored by a recognized
institution of higher learning, private firm or an Indian tribe
as defined in ORS 97.740.
(3) Any archaeological materials, with the exception of Indian
human remains, funerary objects, sacred objects and objects of
cultural patrimony, recovered by a person granted a permit under
subsection (2) of this section shall be under the stewardship of
the State of Oregon to be curated by the Oregon State Museum of
Anthropology unless:
(a) The Oregon State Museum of Anthropology with the approval
from the appropriate Indian tribe approves the alternate
curatorial facilities selected by the permittee;
(b) The materials are made available for nondestructive
research by scholars; and
(c)(A) The material is retained by a recognized scientific,
educational or Indian tribal institution for whose benefit a
permit was issued under subsection (2)(a) of this section;
(B) The State Board of Higher Education with the concurrence of
the appropriate Indian tribe grants approval for material to be
curated by an educational facility other than the institution
that collected the material pursuant to a permit issued under
subsection (2)(a) of this section; or
(C) The sponsoring institution or firm under subsection (2)(c)
of this section furnishes the Oregon State Museum of Anthropology
with a complete catalog of the material within six months after
the material is collected.
(4) The Oregon State Museum of Anthropology shall have the
authority to transfer permanent possessory rights in subject
material to an appropriate Indian tribe.
(5) Except for sites containing human remains, funerary objects
and objects of cultural patrimony as defined in ORS 358.905, or
objects associated with a prehistoric Indian tribal culture, the
permit required by subsection (1) of this section or by ORS
358.920 shall not be required for forestry operations on private
lands for which notice has been filed with the { - State
Forester - } { + director + } under ORS 527.670.
(6) As used in this section:
(a) 'Private firm' means any legal entity that:
(A) Has as a member of its staff a qualified archaeologist; or
(B) Contracts with a qualified archaeologist who acts as a
consultant to the entity and provides the entity with
archaeological expertise.
(b) 'Qualified archaeologist' means a person who has the
following qualifications:
(A) A post-graduate degree in archaeology, anthropology,
history, classics or other germane discipline with a
specialization in archaeology, or a documented equivalency of
such a degree;
(B) Twelve weeks of supervised experience in basic
archaeological field research, including both survey and
excavation and four weeks of laboratory analysis or curating; and
(C) Has designed and executed an archaeological study, as
evidenced by a Master of Arts or Master of Science thesis, or
report equivalent in scope and quality, dealing with
archaeological field research.
(7) Violation of the provisions of subsection (1)(a) of this
section is a Class B misdemeanor.
SECTION 474. ORS 390.240 is amended to read:
390.240. (1) The following disputes shall be submitted to
mediation and if mediation is not successful to arbitration as
described in this section:
(a) A dispute with regard to the issuance of an archaeological
permit under ORS 390.235; or
(b) A dispute over the disposition of human skeletal remains or
burial goods under ORS 97.750.
(2) The { - State Parks and Recreation Commission - }
{ + Oregon Natural Resources Commission + } in consultation with
the Mark O. Hatfield School of Government and the governing
bodies of the Oregon Indian tribes shall adopt rules to establish
mediation and arbitration procedures.
SECTION 475. ORS 390.245 is amended to read:
390.245. (1) The State Treasurer may issue commemorative coins
for sale to the public. Such coins shall commemorate Oregon
history, people or resources and shall not constitute legal
tender and may include the use of the state seal of Oregon under
ORS 186.023. If the State Treasurer decides to issue
commemorative coins using the state seal, no private entity shall
be authorized to use the state seal on any commemorative coins.
(2) All moneys received by the State Treasurer from the sale of
commemorative coins shall be paid into the State Treasury and
credited to a separate Commemorative Coin Account established
within the { - State Parks and Recreation Department Fund - }
{ + Oregon Natural Resources Fund + }. The State Treasurer is
authorized to charge the account the reasonable expenses incurred
in the design, production and sale of the coins.
(3) All moneys in the account, net of expenses charged, are
{ - appropriated continuously to the State Parks and Recreation
Department - } { + continuously appropriated to the Oregon
Department of Natural Resources + } for park land acquisition and
development and for historical observances related to historical
areas and sites.
SECTION 476. ORS 390.250 is amended to read:
390.250. (1) In furtherance of the state policy declared in ORS
390.010, the governing body of Jackson County, Oregon, may
prepare and adopt a plan to promote the public scenic, park and
recreational use of lands along Bear Creek that lie within the
boundaries of Jackson County. The county governing body may, in
preparing any such plan, designate lands or interest in such
lands situated within the county that the county and all cities
described in subsection (2) of this section consider necessary
for immediate or future acquisition for public use for scenic,
park or recreational purposes.
(2) Each plan adopted under subsection (1) of this section
shall be prepared in cooperation with and with the concurrence of
all cities within the county that have lands within their
respective boundaries that are adjacent or contiguous to Bear
Creek.
(3) After the adoption of a plan under subsection (1) of this
section, the governing body of a city in Jackson County or of
Jackson County may apply to the { - State Parks and Recreation
Department - } { + Oregon Natural Resources Commission + }
under ORS 390.255 for grants of money to be used by the city or
county in the acquisition of lands or any interests therein to
carry out any such plan.
SECTION 477. ORS 390.255 is amended to read:
390.255. (1) The { - State Parks and Recreation
Department - } { + Oregon Natural Resources Commission + } may
enter into agreements with cities in Jackson County and with
Jackson County and make grants of money from such funds as may be
available therefor to assist them in acquiring any lands or any
interest therein for scenic, park and recreational purposes in
accordance with a plan adopted by the governing body of Jackson
County. The grants of money that may be made by the department
for the acquisition of any lands or interests shall not be less
than 50 percent of such acquisition cost subject to availability
of funds therefor. All remaining costs, including but not limited
to future operation and maintenance costs, shall be borne by the
city or county in a manner satisfactory to the department. No
grant of money shall be made by the department under this
subsection for any lands or interests acquired by a city or
county prior to July 22, 1973.
(2) The department may require such information, as it
considers advisable, from a city or the county applying for a
grant of money under ORS 390.250 (3). The department may impose
such conditions on the agreements entered into under subsection
(1) of this section and on the use of moneys granted pursuant
thereto as the department considers necessary in carrying out the
state policy declared in ORS 390.010.
SECTION 478. ORS 390.280 is amended to read:
390.280. In addition to the other duties of the { - State
Parks and Recreation Department - } { + Oregon Department of
Natural Resources + }, the department shall:
(1) Make grants to cities, counties and rural fire protection
districts to reimburse { - them - } { + the cities, counties
and rural fire protection districts + } for funds used to make
capital acquisitions for and pay expenses incurred in providing
lifesaving services along the ocean shore as provided in ORS
390.285 and 390.290.
(2) Determine the eligibility of a city, county or rural fire
protection district for, and the amounts of, such matching fund
grants.
(3) Establish and adopt minimum standards for lifesaving
services at such places.
(4) Advise governing bodies how to acquire and qualify for
matching fund grants.
(5) Adopt rules to carry out ORS 390.270 to 390.290.
SECTION 479. ORS 390.285 is amended to read:
390.285. (1) To obtain a grant for reimbursement of the
expenses incurred in providing lifesaving services along the
ocean shore, a governing body of a city, county or rural fire
protection district shall file with the { - State Parks and
Recreation Department - } { + Oregon Department of Natural
Resources + } a request for reimbursement of funds used during
the prior fiscal year for capital acquisitions made and to pay
expenses incurred for direct program costs in providing such
services. The request shall include:
(a) A detailed statement of the funds expended for such
services or capital acquisitions during the prior fiscal year,
and shall indicate the source of such funds; and
(b) Such other information as may be required by the
department.
(2) To be entitled to continue to receive a grant for
reimbursement as authorized by ORS 390.270 to 390.290, the city,
county or rural fire protection district with its request to the
department shall submit a report of the capital acquisitions made
and the lifesaving services provided during the previous year.
SECTION 480. ORS 390.290 is amended to read:
390.290. (1) Expenditures made from city, county or rural fire
protection district funds to provide lifesaving services along
the ocean shore shall be reimbursed by the { - State Parks and
Recreation Department - } { + Oregon Department of Natural
Resources + } in accordance with this section.
(2) Within the limit of the funds available therefor, there
shall be paid to an applicant city, county or rural fire
protection district, on account of expenditures subject to
reimbursement, 75 percent of any amount in excess of $5,000 so
expended from the funds of the applicant in the prior fiscal
year.
(3) Upon approval of a request of a governing body, the
department shall enter into a matching fund relationship to
reimburse the funds used to pay expenses of providing such
lifesaving services.
(4) When approved by the department, claims by a city or county
for reimbursement under subsections (2) and (3) of this section
shall be presented for payment and paid from the City and County
Subaccount of the { - State Parks and Recreation Department
Fund - } { + Oregon Natural Resources Fund + } in the manner
other claims against that account are paid { - ; - } { + . + }
However, if in any fiscal year the aggregate amount of the grants
approved exceeds the funds available in that subaccount for the
purposes of ORS 390.270 to 390.290, the department shall prorate
the available funds among the grants approved.
(5) When approved by the department, claims by a rural fire
protection district under subsections (2) and (3) of this section
shall be presented for payment and paid from the Fire Protection
District Subaccount of the { - State Parks and Recreation
Department Fund - } { + Oregon Natural Resources Fund + } in
the manner other claims against that account are paid. However,
if in any fiscal year the aggregate amount of the grants approved
exceeds the funds available in that subaccount for the purposes
of ORS 390.270 to 390.290, the department shall prorate the
available funds among the grants approved.
SECTION 481. ORS 390.300 is amended to read:
390.300. (1) The Tillamook Forest Recreation Trust Account is
established as a subaccount in the Parks Donation Trust Fund
established pursuant to ORS 390.153. All gifts or donations of
money received by the state for purposes of developing or
implementing the recreation plan described in section 1, chapter
889, Oregon Laws 1991, shall be deposited with the State
Treasurer and credited to the subaccount.
(2) Moneys in the Tillamook Forest Recreation Trust Account
subaccount are continuously appropriated to the { - State Parks
and Recreation Department - } { + Oregon Department of Natural
Resources + } for the purposes specified in the gift or donation
or, if no purpose is specified, for purposes consistent with the
recreation plan
{ - established under ORS 390.295 and this section - } .
SECTION 482. ORS 390.314 is amended to read:
390.314. (1) The Legislative Assembly finds that, to protect
and preserve the natural, scenic and recreational qualities of
lands along the Willamette River, to preserve and restore
historical sites, structures, facilities and objects on lands
along the Willamette River for public education and enjoyment and
to further the state policy established under ORS 390.010, it is
in the public interest to develop and maintain a natural, scenic,
historical and recreational greenway upon lands along the
Willamette River to be known as the Willamette River Greenway.
(2) In providing for the development and maintenance of the
Willamette River Greenway, the Legislative Assembly:
(a) Recognizing the need for coordinated planning for such
greenway, finds it necessary to provide for development and
implementation of a plan for such greenway through the
cooperative efforts of the state and units of local government.
(b) Recognizing the need of the people of this state for
existing residential, commercial and agricultural use of lands
along the Willamette River, finds it necessary to permit the
continuation of existing uses of lands that are included within
such greenway; but, for the benefit of the people of this state,
also to limit the intensification and change in the use of such
lands so that such uses shall remain, to the greatest possible
degree, compatible with the preservation of the natural, scenic,
historical and recreational qualities of such lands.
(c) Recognizing that the use of lands for farm use is
compatible with the purposes of the Willamette River Greenway,
finds that the use of lands for farm use should be continued
within the greenway without restriction.
(d) Recognizing the need for central coordination of such
greenway for the best interests of all the people of this state,
finds it necessary to place the responsibility for the
coordination of the development and maintenance of such greenway
in the { - State Parks and Recreation Department - }
{ + Oregon Department of Natural Resources + }.
(e) Recognizing the lack of need for the acquisition of fee
title to all lands along the Willamette River for exclusive
public use for recreational purposes in such greenway, finds it
necessary to limit the area within such greenway that may be
acquired for state parks and recreation areas and for public
recreational use within the boundaries of units of local
government along the Willamette River.
SECTION 482a. ORS 390.318 is amended to read:
390.318. (1) The { - State Parks and Recreation
Department - } { + Oregon Department of Natural Resources + },
in cooperation with units of local government that have lands
along the Willamette River within their respective boundaries,
shall prepare a plan for the development and management of the
Willamette River Greenway as described in ORS 390.314. Such plan
may be prepared for segments of the Willamette River and may be
submitted as segments for approval under ORS 390.322. Such plan
shall specify the boundaries of the Willamette River Greenway and
the lands and interests in land situated within such boundaries
to be acquired in the development of such greenway. There shall
be included within the boundaries of the Willamette River
Greenway all lands situated within 150 feet from the ordinary low
water line on each side of each channel of the Willamette River
and such other lands along the Willamette River as the department
and units of local government consider necessary for the
development of such greenway; however, the total area included
within the boundaries of such greenway shall not exceed, on the
average, 320 acres per river mile along the Willamette River. The
Willamette River Greenway shall also include all islands and all
state parks and recreation areas situated along the Willamette
River; however, for the purposes of computing the maximum acreage
of lands within such greenway, the acreage of lands situated on
such islands and within such state parks and recreation areas
shall be excluded.
(2) The plan prepared pursuant to subsection (1) of this
section, shall depict, through the use of descriptions, maps,
charts and other explanatory materials:
(a) The boundaries of the Willamette River Greenway.
(b) The boundaries of lands acquired or to be acquired as state
parks and recreation areas under ORS 390.338.
(c) The lands and interests in lands acquired or to be acquired
by units of local government under ORS 390.330 to 390.360.
(d) Lands within the Willamette River Greenway for which the
acquisition of a scenic easement, as provided in ORS 390.332, is
sufficient for the purposes of such greenway.
(3) The plan shall include the location of all known subsurface
mineral aggregate deposits situated on lands within the
boundaries of the Willamette River Greenway.
SECTION 483. ORS 390.322 is amended to read:
390.322. (1) Following the preparation of the plan or any
segment thereof under ORS 390.318, the { - State Parks and
Recreation Department shall submit such plan or segment to the
Land Conservation and Development Commission. The commission
shall investigate and review such - } { + Oregon Natural
Resources Commission shall investigate and review the + } plan or
segment as { - it - } { + the commission + } considers
necessary. If the commission finds that the plan or segment
complies with ORS 390.310 to 390.368, { - it - } { + the
commission + } shall approve the plan or segment. If the
commission finds revision of any part of the submitted plan or
segment to be necessary, { - it - } { + the commission + }
may revise the plan or segment
{ - itself or require such revision by the department and units
of local government - } { + or may require the appropriate
units of local government to revise the plan or segment + }.
(2) Upon approval of the plan for the Willamette River Greenway
or segment thereof, the commission shall cause copies of such
plan or segment to be filed with the recording officer for each
county having lands within the Willamette River Greenway situated
within its boundaries. Such plan or segment filed as required by
this subsection shall be retained in the office of the county
recording officer open for public inspection during reasonable
business hours.
(3) If the plan for the Willamette River Greenway is prepared
and approved in segments, the total of all such approved segments
shall constitute the plan for the Willamette River Greenway for
the purposes of ORS 390.310 to 390.368. The department and units
of local government, with the approval of the commission, may
revise the plan for the Willamette River Greenway from time to
time.
SECTION 484. ORS 390.330 is amended to read:
390.330. (1) The { - State Parks and Recreation
Department - } { + Oregon Department of Natural Resources + }
may enter into agreements with units of local government and make
grants of money to assist units of local government in acquiring
lands or any interest in lands situated within the boundaries of
the Willamette River Greenway for exclusive public use for scenic
and recreational purposes and to assist units of local government
in preserving and restoring historical sites, structures,
facilities and objects on lands along the Willamette River as may
be determined by the department to be in accordance with the plan
approved under ORS 390.322 and to further the purposes of the
Willamette River Greenway as set forth in ORS 390.314. Each such
agreement shall provide for the transfer by the department to the
unit of local government of any scenic or public easement
acquired by the department under ORS 390.310 to 390.368 with
respect to lands acquired by the unit of local government under
this section. The grants of money that may be made by the
department for any property or property rights or for the initial
preservation and restoration of historical sites, structures,
facilities and objects shall not exceed 50 percent of the cost
thereof. All remaining costs, including future operation and
maintenance, shall be borne by the unit or units of local
government in a manner satisfactory to the department. No grant
of money shall be made by the department for property acquired by
any unit of local government prior to June 30, 1967, or for costs
incurred by any unit of local government prior to October 5,
1973, in the preservation and restoration of historical sites,
structures, facilities and objects.
(2) Except as provided in subsection (3) of this section, a
unit of local government is not authorized, for the purposes of
this section, to acquire water rights or installations used in
connection with such water rights or to acquire any property or
property rights by condemnation.
(3) A city, in the acquisition of any property or property
rights within the boundaries of the Willamette River Greenway
with grants of money made under this section, may use any power
of condemnation otherwise provided by law for use by the city in
such acquisition.
SECTION 485. ORS 390.332 is amended to read:
390.332. (1) Except as otherwise provided in subsection (4) of
this section, the { - State Parks and Recreation Department - }
{ + Oregon Department of Natural Resources + } may acquire
scenic easements on any lands situated within 150 feet from the
ordinary low water line on each side of each channel of the
Willamette River and on any lands situated within 150 feet from
the ordinary low water line of each island within the Willamette
River. The department may acquire such easements by any method,
including but not limited to the exercise of the power of eminent
domain.
(2) Each scenic easement acquired under subsection (1) of this
section shall:
(a) Be designed to preserve the vegetation along the Willamette
River and the natural and scenic qualities of the lands subject
to such easements and authorize the department, at its own
expense, to engage in natural vegetative landscaping on such
lands to enhance the natural and scenic qualities of such lands.
(b) Require the owner of the lands subject to such easement to
carry on the use of such lands in a manner to preserve the
existing vegetation and natural and scenic qualities of such
lands and require the repair by the department, at its own
expense, of any damage resulting from natural causes to
vegetation on such lands.
(c) Not provide for public access or use of the lands subject
to such easement, if such easement was acquired by the department
through the exercise of the power of eminent domain.
(d) Provide that any subsequent farm use, as defined in ORS
215.203 (2), of the land subject to such easement is compatible
with the purposes of the Willamette River Greenway and that any
restrictions on the use of the land under such easement are
suspended while such land is devoted to such farm use.
(e) Prevent the change in use of the lands subject to such
easements except with the consent of the department and in
accordance with the conditions imposed with such consent. The
consent of the department and the conditions imposed therewith
shall be in accordance with the intent and purposes of the
Willamette River Greenway.
(3) Each scenic easement acquired under this section on lands
that, on the date of the acquisition of such easement, were a
part of a larger tract of land not subject to a scenic easement
under ORS 390.310 to 390.368, shall provide for the right of the
department to acquire fee title to the lands subject to such
easement upon a change in the use of the lands in the remainder
of such tract that is inconsistent with such scenic easement
under ORS 390.310 to 390.368.
(4) The department may not acquire, through the exercise of the
power of eminent domain, scenic easements under subsection (1) of
this section on any lands that on October 5, 1973, were devoted
to farm use, as defined in ORS 215.203 (2) or were a portion of a
larger tract of land under single ownership that is devoted to
such use. Upon a change in the use of any such lands from farm
use, the department may acquire scenic easements in such lands as
provided in ORS 390.334. Nothing in this subsection is intended
to limit the power of the department to acquire, by any means
other than the exercise of the power of eminent domain, a scenic
easement on lands described in this subsection while such lands
are devoted to such farm use.
SECTION 486. ORS 390.334 is amended to read:
390.334. (1) Except as otherwise provided in subsection (2) of
this section, after the date of the approval of the plan for the
Willamette River Greenway or any segment thereof under ORS
390.322, the { - State Parks and Recreation Department - }
{ + Oregon Department of Natural Resources + } may acquire
scenic easements in any lands described in such plan or segment
pursuant to ORS 390.318 (2)(d). Each such easement may be
acquired by any means, including but not limited to the exercise
of the power of eminent domain.
(2) The department shall not acquire, through the exercise of
the power of eminent domain, scenic easements in any lands
situated within the boundaries of the Willamette River Greenway
that are devoted to farm use on October 5, 1973, while such lands
remain devoted to farm use. Upon a change in the use of any such
lands from farm use, the department may acquire scenic easements
in such lands as provided in subsection (1) of this section.
Nothing in this subsection is intended to limit the power of the
department to acquire, by any means other than the exercise of
the power of eminent domain, a scenic easement on lands described
in this subsection while such lands are devoted to such farm use.
For the purpose of this subsection, 'farm use' has the meaning
given that term in ORS 215.203 (2).
(3) Each scenic easement acquired under subsection (1) of this
section shall:
(a) Specify the use of the land existing on the date of the
acquisition of the easement and permit the continuation of such
use while the land is subject to such easement.
(b) With respect to scenic easements acquired through the
exercise of the power of eminent domain, not provide for any
rights of public access to or use of such lands under such
easements.
(c) Provide that any subsequent farm use, as defined in ORS
215.203 (2), of the land subject to such easement is compatible
with the purposes of the Willamette River Greenway and that any
restrictions on the use of the land under such easement are
suspended while such land is devoted to such farm use.
(d) Prevent the change in use of the lands subject to such
easements except with the consent of the department and in
accordance with the conditions imposed with such consent. The
consent of the department and the conditions imposed therewith
shall be in accordance with the intent and purposes of the
Willamette River Greenway.
(4) In addition to a scenic easement acquired by the department
under this section, the department may acquire, by any means
other than the exercise of the power of eminent domain, a public
easement providing for public access and use of such lands.
(5) At any time after the approval of the plan for the
Willamette River Greenway or any segment thereof under ORS
390.322, the department may acquire, by any means other than the
exercise of the power of eminent domain, lands or interests
therein that are situated outside the boundaries of the
Willamette River Greenway or the segment thereof as approved.
Each such acquisition shall be designed to preserve the natural
or scenic character of such lands in conjunction with the lands
within the boundaries of the Willamette River Greenway.
SECTION 487. ORS 390.338 is amended to read:
390.338. (1) Notwithstanding ORS 390.121, the { - State Parks
and Recreation Department - } { + Oregon Department of Natural
Resources + } may { - only - } exercise the power of eminent
domain { + only + } in the acquisition of lands or interests
therein that are situated within the boundaries of the Willamette
River Greenway for state parks or recreation areas in the parcels
of land described in section 8a, chapter 558, Oregon Laws 1973.
(2) If any land acquired by the department under subsection (1)
or (4) of this section is a part of a larger tract of land
devoted to farm use on the date of the acquisition of such
portion of the tract and such acquisition would render uneconomic
an otherwise economic farming unit on the whole tract of land,
upon the request of the owner of such tract of land, the
department shall purchase the entire tract of land. The
department shall, whenever practicable, acquire the remainder of
any such tract of land with state funds so that the subsequent
disposition of any such land will not be subject to restrictions
imposed under agreements made for the receipt of nonstate funds
otherwise available for the acquisition of such lands.
(3) The department may dispose of lands acquired pursuant to
subsection (2) of this section that are located outside the
boundaries of the Willamette River Greenway as it considers
advisable. However, the disposition of any such lands must comply
with the laws of this state and the applicable provisions of any
agreement by which the department acquired funds for the purchase
of such lands.
(4) Notwithstanding ORS 390.121, the department may
{ - only - } acquire, by any means other than the exercise of
eminent domain, for state parks and recreation areas,
{ + only + } lands and interests in lands that are situated
within the boundaries of the Willamette River Greenway and that
are situated outside the boundaries of the parcels of land
described in section 8a, chapter 558, Oregon Laws 1973.
(5) In the acquisition of any lands pursuant to subsections
(1), (2) and (4) of this section, the department shall include in
the compensation and damages, if any, paid for such lands:
(a) As a part of the compensation, in valuing such lands as a
whole, paid for any such lands acquired without condemnation
proceedings initiated as provided in ORS 35.235, the estimated
market value of economically extractable subsurface mineral
aggregate deposits of reasonably foreseeable demand known to
exist in such lands or shown by the owner to exist in such lands.
(b) As a part of the compensation and damages, if any, in
valuing such lands as a whole, for the appropriation of any such
lands, acquired by the department after the commencement of
condemnation proceedings under ORS 35.235 but not pursuant to an
award in a condemnation action initiated under ORS 35.245, the
estimated market value of economically extractable subsurface
mineral aggregate deposits of reasonably foreseeable demand
agreed upon by the department and the owner of lands so acquired.
(c) As a part of the true value and damages, in valuing such
lands as a whole, for the appropriation of such lands acquired by
award in a condemnation action initiated under ORS 35.245, the
estimated market value of economically extractable subsurface
mineral aggregate deposits of reasonably foreseeable demand
alleged in the answer of the defendant made pursuant to ORS
35.295 and proved by the defendant as a matter of defense to be a
part of the true value of such lands so acquired.
(6) This section does not apply to the acquisition of any lands
or interests therein acquired for state parks or recreation areas
prior to October 5, 1973, and to any lands or interests in land
subject to a legally enforceable option held by the state on
October 5, 1973, for the purposes of the acquisition of such
lands or interests for state parks and recreation areas.
SECTION 488. ORS 390.340 is amended to read:
390.340. The { - State Parks and Recreation Department - }
{ + Oregon Department of Natural Resources + } shall make and
promulgate rules and regulations that it considers necessary in
carrying out ORS 390.310 to 390.368.
SECTION 489. ORS 390.350 is amended to read:
390.350. Units of local government may enter into agreements
with the { - State Parks and Recreation Department - }
{ + Oregon Department of Natural Resources + } and with each
other in carrying out the purposes of the Willamette River
Greenway, and may accept and use gifts and grants from the
department or others.
SECTION 490. ORS 390.360 is amended to read:
390.360. All lands or interests in lands acquired and all
historical sites, structures, facilities and objects preserved
and restored by the units of local government pursuant to ORS
390.330 with grants of money from the { - State Parks and
Recreation Department - } { + Oregon Department of Natural
Resources + }, may be used only for the purposes of the
Willamette River Greenway as set forth in ORS 390.314, unless a
different use is authorized by the department. Title to the lands
or interest therein so acquired shall be held by the unit of
local government acquiring the same. Such lands or interest
therein and such historical sites, structures, facilities and
objects preserved and restored shall never be disposed of or sold
except upon the approval and consent of the department.
SECTION 491. ORS 390.368 is amended to read:
390.368. In carrying out the purposes of ORS 390.310 to 390.368
the { - State Parks and Recreation Department - } { + Oregon
Department of Natural Resources + } may enter into contracts with
any agency of the United States, this state or a political
subdivision thereof, or with any private person, agency or
corporation to perform natural vegetative landscaping or to
perform work to restore damage resulting from natural causes to
vegetation on any land subject to a scenic easement within the
boundaries of the Willamette River Greenway in accordance with
the terms of the scenic easement acquired on such land.
SECTION 492. ORS 390.555 is amended to read:
390.555. The All-Terrain Vehicle Account is established as a
separate account in the { - State Parks and Recreation
Department Fund - } { + Oregon Natural Resources Fund + }, to
be accounted for separately. Interest earned by the All-Terrain
Vehicle Account shall be credited to the account. After deduction
of expenses of collection, transfer and administration, including
the expenses of establishment and operation of Class I
all-terrain vehicle safety education courses and examinations
under ORS 390.570 and Class III all-terrain vehicle safety
education courses and examinations under ORS 390.575, the
following moneys shall be transferred to the account:
(1) Fees collected by the { - State Parks and Recreation
Department - } { + Oregon Department of Natural Resources + }
for issuance of operating permits for all-terrain vehicles under
ORS 390.580 and 390.590.
(2) Fees collected by the { + Oregon + } Department { + of
Natural Resources + } from participants in the Class I and Class
III all-terrain vehicle safety education courses under ORS
390.570 and 390.575.
(3) The moneys transferred from the Department of
Transportation under ORS 802.125 that represent unrefunded fuel
tax.
SECTION 493. ORS 390.560 is amended to read:
390.560. Moneys in the All-Terrain Vehicle Account established
under ORS 390.555 shall be used for the following purposes only:
(1) In each 12-month period, no less than 10 percent of the
moneys described in ORS 390.555 that are attributable to Class I
all-terrain vehicles shall be transferred to the Department of
Transportation for the development and maintenance of snowmobile
facilities as provided in ORS 802.110;
(2) Planning, promoting and implementing a statewide
all-terrain vehicle program, including the acquisition,
development and maintenance of all-terrain vehicle recreation
areas;
(3) Education and safety training for all-terrain vehicle
operators;
(4) Provision of first aid and police services related to
all-terrain vehicle recreation;
(5) Paying the costs of instigating, developing or promoting
new programs for all-terrain vehicle users and of advising people
of possible usage areas for all-terrain vehicles;
(6) Paying the costs of coordinating between all-terrain
vehicle user groups and the managers of public lands;
(7) Paying the costs of providing consultation and guidance to
all-terrain vehicle user programs;
(8) Paying the costs of administration of the all-terrain
vehicle programs, including staff support provided under ORS
390.565 as requested by the All-Terrain Vehicle Advisory
Committee;
(9) Paying the costs of law enforcement activities related to
the operation of Class I and Class III all-terrain vehicles. The
{ - State Parks and Recreation Department - } { + Oregon
Department of Natural Resources + } shall determine the amount
required for law enforcement activities and the intervals at
which the moneys shall be distributed. The funds available shall
be apportioned according to the terms of an intergovernmental
agreement entered into between the { - State Parks and
Recreation Department - } { + Oregon Department of Natural
Resources + } and a city, the Department of State Police or the
sheriff of a county; and
(10) Control and eradication of invasive species related to
all-terrain vehicle recreation.
SECTION 494. ORS 390.565 is amended to read:
390.565. (1) The All-Terrain Vehicle Advisory Committee is
established. The committee shall consist of eleven
{ + members + } { - voting members and one nonvoting
member - } appointed by the { - State Parks and Recreation
Commission - } { + Oregon Natural Resources Commission + } for
a term of four years. Members are eligible for reappointment for
a second term and vacancies may be filled by the commission. A
majority of members constitutes a quorum for the transaction of
business. Recommendations under subsection (4)(a) of this section
on allocation of moneys in the All-Terrain Vehicle Account must
receive an affirmative vote from at least six of the
{ - voting - } members of the committee.
(2) Of the { - voting - } members of the committee:
(a) One shall be a representative of a Class I all-terrain
vehicle user organization.
(b) One shall be a representative of a Class II all-terrain
vehicle user organization.
(c) One shall be an all-terrain vehicle dealer.
(d) One shall be an at-large all-terrain vehicle user.
(e) One shall be a representative of a Class III all-terrain
vehicle user organization.
(f) One shall be a representative of the United States Forest
Service.
(g) One shall be a representative of the Bureau of Land
Management.
(h) One shall be a representative of the Department of
Transportation who is knowledgeable about transportation safety.
(i) One shall be a representative of the { - State Forestry
Department - } { + Oregon Department of Natural Resources + }
who is knowledgeable about all-terrain vehicle recreation areas
on state lands.
(j) One shall be a representative of the Department of Human
Services who is knowledgeable about public health and safety.
(k) One shall be a representative of a law enforcement agency.
{ - (3) One representative from the State Parks and
Recreation Department shall be a nonvoting member of the
committee. - }
{ - (4) - } { + (3) + } The committee shall:
(a) Advise the { - State Parks and Recreation Department - }
{ + Oregon Department of Natural Resources + } on the allocation
of moneys in the All-Terrain Vehicle Account established
{ - by - } { + under + } ORS 390.555.
(b) Review accidents and fatalities resulting from all-terrain
vehicle recreation and make recommendations to the
{ - State Parks and Recreation Commission - } { + Oregon
Natural Resources Commission + }.
(c) Review changes to statutory vehicle classifications as
necessary for safety considerations and make recommendations to
the commission.
(d) Review safety features of all classes of off-highway
vehicles and make recommendations to the commission.
(e) Recommend appropriate safety requirements to protect child
operators and riders of off-highway vehicles to the commission.
{ - (5) - } { + (4) + }(a) A subcommittee shall be
established consisting of the following { - voting - }
members:
(A) The representative of a Class I all-terrain vehicle user
organization.
(B) The representative of a Class II all-terrain vehicle user
organization.
(C) The representative of a Class III all-terrain vehicle user
organization.
(D) The at-large all-terrain vehicle user.
(E) The representative of a law enforcement agency.
(b) The subcommittee shall review grant proposals and make
recommendations to the commission as to which projects should
receive grant funding.
(c) Recommendations under this subsection on grant proposals
must receive an affirmative vote from at least three of the
members of the subcommittee.
(6) The { - State Parks and Recreation Department - }
{ + Oregon Department of Natural Resources + } shall provide
staff support for the committee and shall provide for expansion
of programs for all-terrain vehicle users.
SECTION 495. ORS 390.570 is amended to read:
390.570. (1) The { - State Parks and Recreation
Department - } { + Oregon Department of Natural Resources + }
shall issue or provide for issuance of a Class I all-terrain
vehicle operator permit to any person who:
(a) Has taken a Class I all-terrain vehicle safety education
course established under this section and has been found
qualified to operate a Class I all-terrain vehicle; or
(b) Is at least 16 years of age, has five or more years of
experience operating a Class I all-terrain vehicle and passes an
equivalency examination.
(2) The department shall adopt rules to provide for Class I
all-terrain vehicle safety education courses, equivalency
examinations and the issuance of Class I all-terrain vehicle
operator permits consistent with this section. The rules adopted
by the department shall be consistent with the following:
(a) The courses must be given by instructors designated by the
department as qualified to conduct the courses and issue the
permits.
(b) The instructors may be provided and permits issued through
public or private local and state organizations meeting
qualifications established by the department.
(c) The department may collect a fee of not more than $5 from
each participant in a course established under this section.
SECTION 496. ORS 390.575 is amended to read:
390.575. (1) The { - State Parks and Recreation
Department - } { + Oregon Department of Natural Resources + }
shall issue or provide for issuance of a Class III all-terrain
vehicle operator permit to any person who:
(a) Has taken a Class III all-terrain vehicle safety education
course established under this section and has been found
qualified to operate a Class III all-terrain vehicle; or
(b) Is at least 16 years of age, has five or more years of
experience operating a Class III all-terrain vehicle and passes
an equivalency examination.
(2) The department shall adopt rules to provide for Class III
all-terrain vehicle safety education courses, equivalency
examinations and the issuance of Class III all-terrain vehicle
operator permits consistent with this section. The rules adopted
by the department shall be consistent with the following:
(a) The courses must be given by instructors designated by the
department as qualified to conduct the courses and issue the
permits.
(b) The instructors may be provided and permits issued through
public or private local and state organizations meeting
qualifications established by the department.
(c) The department may collect a fee of not more than $5 from
each participant in a course established under this section.
SECTION 497. ORS 390.580 is amended to read:
390.580. (1)(a) An all-terrain vehicle off-road operating
permit issued under this section is a decal that authorizes use
of the all-terrain vehicle for which it is issued on trails and
in areas designated for such use by the appropriate authority.
(b) An all-terrain vehicle decal issued under this section must
be permanently affixed to the vehicle and displayed in a clearly
visible manner. The { - State Parks and Recreation
Department - } { + Oregon Department of Natural Resources + }
shall prescribe by rule the manner in which the decal shall be
displayed.
(2) The department shall issue an all-terrain vehicle off-road
operating permit to any person who completes the application
described in subsection (4) of this section and pays the fee
specified in subsection (5) of this section.
(3) The department shall specify by rule the form of the permit
and the information to be contained on the permit.
(4) Application for an all-terrain vehicle off-road operating
permit for a Class I, Class II or Class III all-terrain vehicle
shall be in a form furnished by the department. The application
shall include:
(a) The name and address of the owner of the all-terrain
vehicle; and
(b) The make and body style of the all-terrain vehicle for
which application is made.
(5) The department shall establish by rule a fee for a permit
issued or renewed under this section. The fee shall be designed
to cover the costs to the department for issuing or renewing
permits under this section but shall not exceed $10.
(6) Permits issued under this section are valid for two years.
A permit may be renewed upon submission of an application that
contains the information specified in subsection (4) of this
section and payment of the renewal fee specified in subsection
(5) of this section.
(7) The department may appoint agents to issue permits for
all-terrain vehicles. The department shall prescribe the
procedure for the issuance of the permits. Agents appointed under
this subsection shall issue permits in accordance with the
prescribed procedure and shall charge and collect the fees
prescribed in this section for the permits.
SECTION 498. ORS 390.585 is amended to read:
390.585. (1) The { - State Parks and Recreation
Department - } { + Oregon Department of Natural Resources + }
may adopt rules necessary for carrying out the duties imposed by
ORS 390.550 to 390.590.
(2) The department shall adopt rules establishing rider fit
guidelines to ensure that an all-terrain vehicle properly fits
the operator of the vehicle.
SECTION 499. ORS 390.590 is amended to read:
390.590. (1) An out-of-state all-terrain vehicle operating
permit is a vehicle permit that is issued as evidence of a grant
of authority to operate in this state an all-terrain vehicle that
is owned by a resident of another state.
(2) The { - State Parks and Recreation Department - }
{ + Oregon Department of Natural Resources + } shall establish a
program for the issuance of out-of-state all-terrain vehicle
permits under this section. The program established by the
department shall comply with all of the following:
(a) A permit may only be issued for all-terrain vehicles owned
by the resident of another state where registration is not
required by law.
(b) A permit is valid for not more than two years.
(c) Application for a permit shall state the name and address
of each owner.
(d) The fee for issuance of a permit shall be $10.
SECTION 500. ORS 390.605 is amended to read:
390.605. As used in ORS 390.610, 390.620 to 390.676, 390.690
and 390.705 to 390.770, unless the context requires otherwise:
(1) 'Improvement' includes filling a portion of the ocean
shore, removal of material from the ocean shore or a structure,
appurtenance or other addition, modification or alteration
constructed, placed or made on or to the land.
(2) 'Ocean shore' means the land lying between extreme low tide
of the Pacific Ocean and the statutory vegetation line as
described by ORS 390.770 or the line of established upland shore
vegetation, whichever is farther inland. 'Ocean shore' does not
include an estuary as defined in ORS 196.800.
(3) 'State recreation area' means a land or water area, or
combination thereof, under the jurisdiction of the { - State
Parks and Recreation Department - } { + Oregon Department of
Natural Resources and + } used by the public for recreational
purposes.
SECTION 501. ORS 390.620 is amended to read:
390.620. (1) No portion of the lands described by ORS 390.610
or any interest either therein now or hereafter acquired by the
State of Oregon or any political subdivision thereof shall be
alienated except as expressly provided by state law. The
{ - State Parks and Recreation Department - } { + Oregon
Department of Natural Resources + } and the State Land Board
shall have concurrent jurisdiction to undertake appropriate court
proceedings, when necessary, to protect, settle and confirm all
such public rights and easements in the State of Oregon.
(2) No portion of the ocean shore declared a state recreation
area by ORS 390.610 shall be alienated by any of the agencies of
the state except as provided by law.
(3) In carrying out its duties under subsection (1) of this
section with respect to lands and interests in land within the
ocean shore, the State Land Board shall act with respect to the
portion of the tidal submerged lands, as defined in ORS 274.705
(7), and the submersible lands, as defined in ORS 274.005
{ - (8) - } { + (6) + }, that are situated within the ocean
shore as it does with respect to other state-owned submerged and
submersible lands within navigable waters of this state.
(4) In carrying out its duties under subsection (1) of this
section with respect to lands and interests in land within the
ocean shore, the { - State Parks and Recreation - }
{ + Oregon + } Department { + of Natural Resources + } shall
act with respect to such lands and interests as it does with
respect to other lands and interests within state recreation
areas.
SECTION 502. ORS 390.630 is amended to read:
390.630. The { - State Parks and Recreation Department - }
{ + Oregon Department of Natural Resources + }, in accordance
with ORS 390.121, may acquire ownership of or interests in the
ocean shore or lands abutting, adjacent or contiguous to the
ocean shore as may be appropriate for state recreation areas or
access to such areas where such lands are held in private
ownership. However, when acquiring ownership of or interests in
lands abutting, adjacent or contiguous to the ocean shore for
such recreation areas or access where such lands are held in
private ownership, the department shall consider the following:
(1) The availability of other public lands in the vicinity for
such recreational use or access.
(2) The land uses, improvements, and density of development in
the vicinity.
(3) Existing public recreation areas and accesses in the
vicinity.
(4) Any local zoning or use restrictions affecting the area in
question.
SECTION 503. ORS 390.632 is amended to read:
390.632. (1) In order to further the policy established in ORS
390.610 and to preserve the right of public access to the ocean
shore, the { - State Parks and Recreation Department - }
{ + Oregon Department of Natural Resources + } shall coordinate
with affected local governments to provide increased public
access to the coastal shorelands.
(2) The { - State Parks and Recreation - } department may:
(a) Ensure that beach access sites are posted for public use;
(b) Maintain parking and trash disposal facilities at beach
access sites; and
(c) Maintain beach access sites in a safe and litter-free
manner.
SECTION 504. ORS 390.635 is amended to read:
390.635. Except as provided by ORS 273.551, 274.710 and
390.620, the { - State Parks and Recreation Department - }
{ + Oregon Department of Natural Resources + } has jurisdiction
over the land and interests in land acquired under ORS 390.610,
390.615, 390.620 or 390.630 in order to carry out the purposes of
ORS 390.610, 390.620 to 390.676, 390.690 and 390.705 to 390.770.
SECTION 505. ORS 390.650 is amended to read:
390.650. (1) Any person who desires a permit to make an
improvement on any property subject to ORS 390.640 shall apply in
writing to the { - State Parks and Recreation Department - }
{ + Oregon Department of Natural Resources + } on a form and in
a manner prescribed by the department, stating the kind of and
reason for the improvement.
(2) Upon receipt of a properly completed application, the
{ - State Parks and Recreation - } department shall provide
notice of the proposal by causing notice of the application to be
posted at or near the location of the proposed improvement. The
notice shall include the name of the applicant, a description of
the proposed improvement and its location and a statement of the
time within which interested persons may file a request with the
department for a hearing on the application. The department shall
give notice of any application, hearing or decision to any person
who files a written request with the department for such notice.
(3) Within 30 days after the date of posting the notice
required in subsection (2) of this section, the applicant or 10
or more other interested persons may file a written request with
the
{ - State Parks and Recreation - } department for a hearing on
the application. If such a request is filed, the department shall
set a time for a hearing to be held by the department. The
department shall cause notice of the hearing to be posted in the
manner provided in subsection (2) of this section. The notice
shall include the time and place of the hearing. After the
hearing on an application or, if a hearing is not requested,
after the time for requesting a hearing has expired, the
department shall grant the permit if approval would not be
adverse to the public interest. ORS chapter 183 does not apply
to a hearing or decision under this section.
(4) In acting on an application, the { - State Parks and
Recreation - } department shall take into consideration the
matters described by ORS 390.655. The department shall act on an
application within 60 days after the date of receipt or, if a
hearing is held, within 45 days after the date of the hearing.
(a) The decision of the department shall include written
findings setting forth the specific reasons for the approval or
denial and, if the application is approved, any conditions the
department considers necessary to maintain the standards
established under ORS 390.655.
(b) A copy of the written findings shall be furnished to the
applicant at the time of approval or denial of the application by
the department as provided in this subsection.
(5) Subsections (2) and (3) of this section do not apply to an
application for a permit for the repair, replacement or
restoration, in the same location, of an authorized improvement
or improvement existing on or before May 1, 1967, if the repair,
replacement or restoration is commenced within three years after
the damage to or destruction of the improvement being repaired,
replaced or restored occurs.
(6) The { - State Parks and Recreation - } department may,
upon application therefor, either written or oral, grant an
emergency permit for a new improvement, dike, revetment, or for
the repair, replacement or restoration of an existing, or
authorized improvement where property or property boundaries are
in imminent peril of being destroyed or damaged by action of the
Pacific Ocean or the waters of any bay or river of this state.
Said permit may be granted by the department without regard to
the provisions of subsections (1), (2), (3), (4) and (5) of this
section. Any emergency permit granted hereunder shall be reduced
to writing by the department within 10 days after granting the
same with a copy thereof furnished to the applicant.
(7) Except as provided by subsection (8) of this section, each
application under subsection (1) of this section shall be
accompanied by a fee to cover, in part, the expenses of the
department in investigating, reviewing and issuing the
improvement permits. The application fee for each permit shall
be:
(a) $400 for any project for which the construction value is
less than $2,500.
(b) $400 for any project for which the construction value is
equal to or greater than $2,500, plus an additional amount equal
to three percent of the construction value over $2,500.
(8) The department may waive or reduce the fee required by
subsection (7) of this section for an application submitted by a
public body, as { - that term is defined by - } { + defined
in + } ORS 174.109, or tribal government if the primary purpose
of the improvement is:
(a) Restoring, conserving or protecting the natural, resource,
scenic, recreational, cultural or economic values of the ocean
shore;
(b) Restoring native beach or dune habitat contributing to the
recovery of sensitive species, including state and federally
listed threatened or endangered species; or
(c) Improving native biological values of the ocean shore.
(9) Fees received under this section shall be deposited into a
subaccount of the { - State Parks and Recreation Department
Fund - } { + Oregon Natural Resources Fund + }. Such fees are
continuously appropriated to the { - department - }
{ + Oregon Department of Natural Resources + } for the purpose
of carrying out the ocean shore program.
(10) As used in this section, 'construction value' includes but
is not limited to the costs of labor and equipment rental. For a
project involving only the movement of sand or similar material
on the ocean shore, 'construction value' shall equal the costs of
labor, fees and equipment rental.
SECTION 506. ORS 390.655 is amended to read:
390.655. The { - State Parks and Recreation Department - }
{ + Oregon Department of Natural Resources + } shall consider
applications and issue permits under ORS 390.650 in accordance
with standards designed to promote the public health, safety and
welfare and carry out the policy of ORS 390.610, 390.620 to
390.676, 390.690 and 390.705 to 390.770. The standards shall be
based on the following considerations, among others:
(1) The public need for healthful, safe, aesthetic surroundings
and conditions; the natural scenic, recreational and other
resources of the area; and the present and prospective need for
conservation and development of those resources.
(2) The physical characteristics or the changes in the physical
characteristics of the area and suitability of the area for
particular uses and improvements.
(3) The land uses, including public recreational use if any,
and the improvements in the area, the trends in land uses and
improvements, the density of development and the property values
in the area.
(4) The need for recreation and other facilities and
enterprises in the future development of the area and the need
for access to particular sites in the area.
SECTION 507. ORS 390.659 is amended to read:
390.659. (1) Any applicant whose application for a permit under
ORS 390.650 has been denied or who objects to any condition
imposed on the permit or any person aggrieved or adversely
affected by the granting of a permit may, within 30 days after
the denial of the permit or the imposition of the condition,
request a hearing from the { - State Parks and Recreation
Director - } { + Director of the Oregon Department of Natural
Resources + }.
(2) Upon receipt of a request for hearing from the applicant or
if the director finds that the person other than the applicant
making the request has a legally protected interest that is
adversely affected by the grant of the permit, the director shall
set the matter down for hearing within 30 days after receipt of
the request. The hearing shall be conducted as a contested case
in accordance with ORS 183.415 to 183.430, 183.440 to 183.460 and
183.470. The applicant shall be a party to any contested case
hearing requested by a person other than the applicant.
(3) Within 45 days after the 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 original
order. Appeals from the director's final order may be taken to
the Court of Appeals in the manner provided by ORS 183.482.
(4) A permit granted by the director may be suspended by the
director during the pendency of the proceedings before the
director and any appeal. The director shall not suspend the
permit unless the person aggrieved or adversely affected by grant
of permit makes a showing before the director by clear and
convincing evidence that commencement or continuation of the
improvement would cause irremediable damage and would be
inconsistent with ORS 390.610, 390.620 to 390.676, 390.690 and
390.705 to 390.770.
SECTION 508. ORS 390.660 is amended to read:
390.660. The { - State Parks and Recreation Department - }
{ + Oregon Department of Natural Resources + } is hereby
directed to protect, to maintain and to promulgate rules
governing use of the public of property that is subject to ORS
390.640, property subject to public rights or easements declared
by ORS 390.610 and property abutting, adjacent or contiguous to
those lands described by ORS 390.615 that is available for public
use, whether such public right or easement to use is obtained by
dedication, prescription, grant, state-ownership, permission of a
private owner or otherwise.
SECTION 509. ORS 390.663 is amended to read:
390.663. (1) If the { - State Parks and Recreation
Director - } { + Director of the Oregon Department of Natural
Resources + } determines that any improvement is being made on
property within the ocean shore without a permit issued under ORS
390.650, or in a manner contrary to the conditions set out in the
permit, the director may:
(a) Investigate, hold hearings, make orders and take action, as
provided in ORS 390.620 to 390.676, as soon as possible.
(b) For the purpose of investigating conditions relating to
such improvements, through the employees or the duly authorized
representatives of the { - State Parks and Recreation
Department - } { + Oregon Department of Natural Resources + },
enter at reasonable times upon any private or public property.
(c) Conduct public hearings in accordance with ORS chapter 183.
(d) Publish findings and recommendations as they are developed
relative to public policies and procedures necessary for the
correction of conditions or violations of ORS 390.620 to 390.676.
(e) Give notice of any proposed order relating to a violation
by personal service or by mailing the notice by registered or
certified mail to the person or governmental body affected. Any
person aggrieved by a proposed order of the director may request
a hearing within 20 days of the date of personal service or
mailing of the notice. Hearings shall be conducted under the
provisions of ORS chapter 183 applicable to contested cases, and
judicial review of final orders shall be conducted in the Court
of Appeals according to ORS 183.482. If no hearing is requested
or if the party fails to appear, a final order shall be issued
upon a prima facie case on the record of the department.
(f) Take appropriate action for the enforcement of any rules or
final orders. Any violation of ORS 390.620 to 390.676 or of any
rule or final order of the director under ORS 390.620 to 390.676
may be enjoined in civil abatement proceedings brought in the
name of the State of Oregon. In any such proceedings, the
director may seek and the court may award a sum of money
sufficient to compensate the public for any destruction or
infringement of any public right of navigation, fishery or
recreation resulting from such violation. Proceedings brought by
the director shall set forth, if applicable, the dates of notice
and hearing and the specific rule or order of the director,
together with the facts of noncompliance, the facts giving rise
to the public nuisance and a statement of the damages to any
public right of navigation, fishery or recreation, if any,
resulting from such violation.
(2) In addition to the administrative action the director may
take under subsection (1) of this section, the director may enter
an order requiring any person to cease and desist from any
violation if the director determines that such violation presents
an imminent and substantial risk of injury, loss or damage to the
ocean shore.
(3) An order under subsection (2) of this section:
(a) May be entered without prior notice or hearing.
(b) Shall be served upon the person by personal service or by
registered or certified mail.
(c) Shall state that a hearing will be held on the order if a
written request for hearing is filed by the person subject to the
order within 10 days after receipt of the order.
(d) Shall not be stayed during the pendency of a hearing
conducted under subsection (4) of this section.
(4) If a person subject to an order under subsection (2) of
this section files a timely demand for hearing, the director
shall hold a contested case hearing according to the applicable
provisions of ORS chapter 183. If the person fails to request a
hearing, the order shall be entered as a final order upon prima
facie case made on the record of the department.
(5) { - Neither - } The director { + , or a + } { - nor
any - } duly authorized representative of the department { + ,
is not + } { - shall be - } liable for any damages a person
may sustain as a result of a cease and desist order issued under
subsection (2) of this section.
(6) The state and local police shall cooperate in the
enforcement of any order issued under subsection (2) of this
section and shall require no further authority or warrant in
executing or enforcing such order. If any person fails to comply
with an order issued under subsection (2) of this section, the
circuit court of the county in which the violation occurred or is
threatened shall compel compliance with the director's order in
the same manner as with an order of that court.
(7) As used in this section, 'violation' means making an
improvement on property within the ocean shore without a permit
or in a manner contrary to the conditions set out in a permit
issued under ORS 390.650.
SECTION 510. ORS 390.666 is amended to read:
390.666. If the { - State Parks and Recreation Director - }
{ + Director of the Oregon Department of Natural Resources + }
finds that a person or governmental body holding a permit issued
under ORS 390.650 is making an improvement on property within the
ocean shore contrary to the conditions set out in the permit, the
director may revoke, suspend or refuse to renew such permit. The
director may revoke a permit only after giving notice and
opportunity for a hearing as provided in ORS 183.415 to 183.430,
183.440 to 183.460 and 183.470.
SECTION 511. ORS 390.669 is amended to read:
390.669. (1) In addition to any enforcement action taken under
ORS 390.663, civil proceedings to abate alleged public nuisances
under ORS 390.661 may be instituted in the name of the State of
Oregon upon relation of the { - State Parks and Recreation
Director - } { + Director of the Oregon Department of Natural
Resources + } or by any person in the person's name.
(2) Before beginning any action under subsection (1) of this
section, a person other than the director shall provide to the
director 60 days' notice of the intended action. A person other
than the director may not begin an action under subsection (1) of
this section if the director has commenced and is diligently
prosecuting civil, criminal or administrative proceedings in the
same matter.
(3) The director may institute an action in the name of the
State of Oregon for a temporary restraining order or preliminary
injunction if a threatened or existing public nuisance under ORS
390.661 creates an emergency that requires immediate action to
protect the public health, safety or welfare. The director
{ - shall not be - } { + is not + } required to furnish a bond
in such proceeding.
(4) The { - State Parks and Recreation Commission, the State
Parks and Recreation Director and the employees or duly
authorized representatives of the State Parks and Recreation
Department shall not be - } { + director, Oregon Natural
Resources Commission and employees or duly authorized
representatives of the Oregon Department of Natural Resources are
not + } liable for any damages a defendant may sustain as a
result of an injunction, restraining order or abatement order
issued under this section.
(5) A case filed under this section shall be given preference
on the docket over all other civil cases except those given an
equal preference by statute.
(6) In any action brought under this section, the plaintiff may
seek and the court may award a sum of money sufficient to
compensate the public for any destruction or infringement of any
public right of navigation, fishery or recreation resulting from
an existing public nuisance under ORS 390.661. { - Any
money - } { + Moneys + } received by the plaintiff under this
subsection shall be deposited in { - an account of the State
Parks and Recreation Department for use by the department - }
{ + the Oregon Natural Resources Fund. Moneys deposited in the
fund under this subsection are continuously appropriated to the
Oregon Department of Natural Resources for use by the department
+ }in administering the ocean shore program.
SECTION 512. ORS 390.672 is amended to read:
390.672. (1) If any person or governmental body, through
negligence, violates ORS 390.640, the { - State Parks and
Recreation Director - } { + Director of the Oregon Department
of Natural Resources + }, in a proceeding brought pursuant to ORS
390.669, may seek and the court may award double a sum of money
sufficient to compensate the public for any destruction or
infringement of any public right of navigation, fishery or
recreation resulting from such violation.
(2) If any person or governmental body intentionally violates
ORS 390.640, the director, in a proceeding brought pursuant to
ORS 390.669, may seek and the court may award treble a sum of
money sufficient to compensate the public for any destruction or
infringement of any public right of navigation, fishery or
recreation resulting from such violation.
(3) An award made pursuant to this section shall be in addition
to and not in lieu of any criminal penalties imposed for a
violation of ORS 390.640.
(4) In any action brought under ORS 390.669, the court shall
award to the prevailing party the costs of suit and reasonable
attorney fees at trial and on appeal. Subject to the provisions
of ORS 20.140, any costs and attorney fees so awarded to the
director shall be deposited in { - an account of the State
Parks and Recreation Department - } { + the Oregon Natural
Resources Fund + } to offset the director's expenses of bringing
such action.
SECTION 513. ORS 390.674 is amended to read:
390.674. (1) Civil penalties under ORS 390.992 shall be imposed
as provided in ORS 183.745.
(2) The provisions of this section are in addition to and not
in lieu of any other penalty or sanction provided by law. An
action taken by the { - State Parks and Recreation Director - }
{ + Director of the Oregon Department of Natural Resources + }
under this section may be joined by the director with any other
action taken against the same person under ORS 390.995 (1).
(3) Any civil penalty recovered under this section shall be
deposited { - into an account of the State Parks and Recreation
Department - } { + in the Oregon Natural Resources Fund. Moneys
deposited in the fund under this subsection are continuously
appropriated to the Oregon Department of Natural Resources + }
for use by the department in administration of the ocean shore
program.
SECTION 514. ORS 390.676 is amended to read:
390.676. (1) The { - State Parks and Recreation Director - }
{ + Director of the Oregon Department of Natural Resources + }
shall adopt by rule the amount of civil penalty that may be
imposed for a particular violation under ORS 390.992.
(2) In imposing a penalty under the schedule adopted under
subsection (1) of this section, the director shall consider the
following factors:
(a) The past history of the person incurring a penalty in
taking all feasible steps or procedures necessary or appropriate
to correct any violation.
(b) Any prior violations of statutes, rules, orders and permits
pertaining to waters of this state.
(c) The impact of the violation on public interests in
navigation, fishery and recreation.
(d) Any other factors determined by the director to be relevant
and consistent with the policy of ORS 390.610.
(3) The penalty imposed under this section may be remitted or
mitigated upon such terms and conditions as the director
determines to be proper and consistent with the policy of ORS
390.610. Upon the request of the person incurring the penalty,
the director shall consider evidence of the economic and
financial condition of the person in determining whether a
penalty shall be remitted or mitigated.
SECTION 515. ORS 390.678 is amended to read:
390.678. (1) The { - State Parks and Recreation
Department - } { + Oregon Department of Natural Resources + }
may establish zones on the ocean shore where travel by motor
vehicles or landing of any aircraft except for an emergency shall
be restricted or prohibited. After the establishment of a zone
and the erection of signs or markers thereon, no such use shall
be made of such areas except in conformity with the rules of the
department.
(2) Proceedings to establish a zone:
(a) May be initiated by the department on its own motion; or
(b) Shall be initiated upon the request of 20 or more
landowners or residents or upon request of the governing body of
a county or city contiguous to the proposed zone.
(3) A zone shall not be established unless the department first
holds a public hearing in the vicinity of the proposed zone. The
department shall cause notice of the hearing to be given by
publication, not less than seven days prior to the hearing, by at
least one insertion in a newspaper of general circulation in the
vicinity of the zone.
(4) Before establishing a zone, the department shall seek the
approval of the local government whose lands are adjacent or
contiguous to the proposed zone.
SECTION 516. ORS 390.715 is amended to read:
390.715. (1) The { - State Parks and Recreation
Department - } { + Oregon Department of Natural Resources + }
may issue permits under ORS 390.650 to 390.659 for pipelines,
cable lines and other conduits across and under the ocean shore,
state recreation areas and the submerged lands adjacent to the
ocean shore, upon payment of just compensation by the permittee.
A permit issued under this subsection is not a sale or lease of
tide and overflow lands within the scope of ORS 274.040.
(2) Whenever the issuance of a permit under subsection (1) of
this section will affect lands owned privately, the { - State
Parks and Recreation - } department shall withhold the issuance
of the permit until the permittee obtains from the private owner
an easement, license or other written authorization that meets
the approval of the { - State Parks and Recreation - }
department, except as to the compensation to be paid to the
private owner.
(3) All permits issued under this section are subject to
conditions that will ensure safety of the public and the
preservation of economic, scenic and recreational values and to
rules promulgated by state agencies having jurisdiction over the
activities of the grantee or permittee.
SECTION 517. ORS 390.725 is amended to read:
390.725. (1) Removal of natural products such as fish or
wildlife, agates or small amounts of driftwood from a state
recreation area as defined in ORS 390.605 for personal,
noncommercial use is not subject to the provisions of ORS
390.650.
(2) The collection of natural products for the purpose of
trade, sale or resale shall be subject to the permit provisions
and standards of ORS 390.650 and 390.655. Permits shall provide
for the payment of just compensation by the permittee as provided
by rule adopted under subsection (4) of this section.
(3) No archaeological object associated with an archaeological
site, as { - those terms - } { + both + } are defined in ORS
358.905, shall be removed from the ocean shore except as provided
in ORS 358.920 and 390.235.
(4) Rules or permits shall be made or granted by the
{ - State Parks and Recreation Department only after
consultation with the State Fish and Wildlife Commission, the
State Department of Geology and Mineral Industries and the
Department of State Lands - } { + Oregon Department of Natural
Resources + }. Rules and permits shall contain provisions
necessary to protect the areas from any use, activity or practice
inimicable to the conservation of natural resources or public
recreation.
(5) The terms, royalty and duration of a permit under this
section are at the discretion of the { - State Parks and
Recreation - } department. A permit is revocable at any time in
the discretion of the department without liability to the
permittee.
(6) Whenever the issuance of a permit under this section will
affect lands owned privately, the { - State Parks and
Recreation - } department shall withhold the issuance of such
permit until such time as the permittee shall have obtained an
easement, license or other written authorization from the private
owner, which easement, license or other written authority must
meet the approval of the department, except as to the
compensation to be paid to the private owner.
SECTION 518. ORS 390.729 is amended to read:
390.729. (1) A person may not operate a Class I all-terrain
vehicle on the ocean shore unless the person obtains a permit
from the { - State Parks and Recreation Department - }
{ + Oregon Department of Natural Resources + } as provided in
this section.
(2) The department may issue a permit for the operation of a
Class I all-terrain vehicle on the ocean shore if the operator of
the vehicle holds a permit issued under ORS 390.570, if the
vehicle has a current operating permit issued under ORS 390.580
and if the vehicle will be used to meet the transportation needs
of:
(a) Individuals with disabilities;
(b) Emergency response or emergency aid workers; or
(c) Biologists, wildlife monitors or other natural resources
workers.
(3) Application for a permit issued under this section shall be
in a form determined by the department. The department shall
specify the information to be contained in the application, the
renewal period and the manner in which the permit must be
displayed.
(4) The department may not charge for a permit issued under
this section.
SECTION 519. ORS 390.755 is amended to read:
390.755. (1) The { - State Parks and Recreation
Department - } { + Oregon Department of Natural Resources + }
is directed to periodically reexamine the { - line - }
{ + lines + } of vegetation as established and described by ORS
390.770 for the purpose of obtaining information and material
suitable for a re-evaluation and re-definition, if necessary, of
{ - such line - } { + the lines + } so that the private and
public rights and interest in the ocean shore { - shall be - }
{ + are + } preserved.
(2) The { - State Parks and Recreation - } department may,
from time to time, recommend to the Legislative Assembly
adjustment of the { - line - } { + lines + } described in ORS
390.770.
{ + NOTE: + } Section 520 was deleted. Subsequent sections
were not renumbered.
SECTION 521. ORS 390.805 is amended to read:
390.805. As used in ORS 390.805 to 390.925, unless the context
requires otherwise:
(1) 'Related adjacent land' means all land within one-fourth of
one mile of the bank on the side of Waldo Lake, or a river or
segment of river within a scenic waterway, except land that, in
the { - State Parks and Recreation Department's - } judgment
{ + of the Oregon Department of Natural Resources + }, does not
affect the view from the waters within a scenic waterway.
(2) 'Scenic easement' means the right to control the use of
related adjacent land, including air space above such land, for
the purpose of protecting the scenic view from waters within a
scenic waterway; but such control does not affect, without the
owner's consent, any regular use exercised prior to the
acquisition of the easement, and the landowner retains the right
to uses of the land not specifically restricted by the easement.
(3) 'Scenic waterway' means Waldo Lake, or a river or segment
of river that has been designated as such in accordance with ORS
390.805 to 390.925 or any subsequent Act, and includes related
adjacent land.
SECTION 522. ORS 390.835 is amended to read:
390.835. (1) It is declared that the highest and best uses of
the waters within scenic waterways are recreation, fish and
wildlife uses. The free-flowing character of these waters shall
be maintained in quantities necessary for recreation, fish and
wildlife uses. { - No - } { + A + } dam, { - or - }
reservoir { - , - } or other water impoundment facility
{ - shall - } { + may not + } be constructed on waters within
scenic waterways. { - No - } { + A + } water diversion
facility { - shall - } { + may not + } be constructed or used
except by right previously established or as permitted by the
{ - Water Resources Commission - } { + Director of the Oregon
Department of Natural Resources + }, upon a finding that such
diversion is necessary to uses designated in ORS 536.310 (12),
and in a manner consistent with the policies set forth under ORS
390.805 to 390.925. { - The Water Resources Commission shall
administer and enforce the provisions of this subsection. - }
(2) Filling of the beds or removal of material from or other
alteration of the beds or banks of scenic waterways for purposes
other than recreational prospecting not requiring a permit shall
be prohibited, except as permitted by the director { - of the
Department of State Lands - } upon a finding that such activity
would be consistent with the policies set forth under ORS 390.805
to 390.925 for scenic waterways and in a manner consistent with
the policies set forth under ORS 196.800 to 196.825 and 196.845
to 196.870 for removal of material from the beds and banks and
filling of any waters of this state. { - The Director of the
Department of State Lands shall administer and enforce the
provisions of this subsection. - }
{ + (3) The director shall administer and enforce the
provisions of subsections (1) and (2) of this section. + }
{ - (3)(a) - } { + (4)(a) + } Upon a finding of emergency
circumstances, the director { - of the Department of State
Lands - } may issue a temporary permit for the removal, filling
or alteration of the beds or banks within a scenic waterway.
{ - The temporary permit shall include conditions developed
after consultation with the State Department of Fish and Wildlife
and the State Parks and Recreation Department. - }
(b) As used in this subsection, 'emergency circumstances '
exist if prompt action is necessary to prevent irreparable harm,
injury or damage to persons or property.
{ - (4) - } { + (5) + } Any person adversely affected or
aggrieved by the grant or denial of a permit under subsection (2)
or { - (3) - } { + (4) + } of this section may appeal in
accordance with the procedure set forth in ORS 196.835.
{ - (5) - } { + (6) + } Nothing in ORS 390.805 to 390.925
affects the authority of the { - State Fish and Wildlife
Commission - } { + Oregon Department of Natural Resources or
the Oregon Natural Resources Commission + } to construct
facilities or make improvements to facilitate the passage or
propagation of fish { + , to exercise other responsibilities in
managing fish and wildlife resources + }or { - to exercise
other responsibilities in managing fish and wildlife resources.
Nothing in ORS 390.805 to 390.925 affects the authority of the
Water Resources Commission - } to construct and maintain stream
gauge stations and other facilities related to the
{ - commission's duties in - } administration of the water
laws.
{ - (6) - } { + (7) + } Upon a finding of necessity under
subsection (1) of this section, the { - Water Resources
Commission - } { + director + } may issue a water right for
human consumption not to exceed 0.005 cubic feet per second per
household, or livestock consumption uses not to exceed one-tenth
of one cubic foot per second per 1,000 head of livestock, as
designated in ORS 536.310 (12) within or above a scenic waterway
if the { - Water Resources Commission - } { + director + }
makes the following findings:
(a) That issuing the water right does not significantly impair
the free-flowing character of these waters in quantities
necessary for recreation, fish and wildlife.
(b) That issuing the water right is consistent with provisions
pertaining to water appropriation and water rights under ORS
chapters 536 and 537 and rules adopted thereunder.
(c) That construction, operation and maintenance of the
diversion system will be carried out in a manner consistent with
the purposes set forth in ORS 390.805 to 390.925.
(d) If the water right is for human consumption, an additional
finding that:
(A) The applicant cannot reasonably obtain water from any other
source;
(B) Denial of the water right would result in loss of
reasonable expectations for use of the property; and
(C) The system installed to divert water shall include
monitoring equipment to permit water use measurement and
reporting.
(e) If the water right is for livestock consumption, an
additional finding that:
(A) The right is necessary to prevent the livestock from
watering in or along the stream bed;
(B) The applicant cannot reasonably obtain water from any other
source; and
(C) The applicant has excluded livestock from the stream and
its adjacent riparian zone.
{ - (7) - } { + (8) + } In making the findings required
under subsection
{ - (6) - } { + (7) + } of this section, the { - Water
Resources Commission - } { + director + } shall consider the
existing or potential cumulative impacts of issuing the water
right.
{ - (8) - } { + (9) + } The { - Water Resources
Commission - } { + director + } may not allow human consumption
and livestock uses authorized under subsection { - (6) - }
{ + (7) + } of this section in excess of a combined cumulative
total of one percent of the average daily flow or one cubic foot
per second, whichever is less, unless:
{ - (a) The Water Resources Commission, the State Parks and
Recreation Department, the State Department of Fish and Wildlife,
the Department of Environmental Quality and the Department of
State Lands unanimously agree to exceed that amount; and - }
{ + (a) The Department of Environmental Quality agrees to
exceed that amount; and + }
(b) Exceeding that amount will not significantly impair the
free-flowing character of these waters in quantities necessary
for recreation, fish and wildlife.
{ - (9)(a) - } { + (10)(a)(A) + } The provisions of this
section { - shall - } { + do + } not apply to a water right
application for the use of ground water as defined in ORS
537.515, except upon a finding by the { - Water Resources - }
director based on a preponderance of evidence that the use of
ground water will measurably reduce the surface water flows
necessary to maintain the free-flowing character of a scenic
waterway in quantities necessary for recreation, fish and
wildlife.
{ - (b) - } { + (B) + } The { - Water Resources
Department - } { + Oregon Department of Natural Resources + }
shall review every application for the use of ground water to
determine whether to make the finding specified in
{ - paragraph (a) of this subsection - } { + subparagraph (A)
of this paragraph + }. The finding shall be based upon the
application of generally accepted hydrogeologic methods using
relevant and available field information concerning the proposed
use.
{ - (c) - } { + (C) + } In making the determination
required by { - paragraph (a) of this subsection, the Water
Resources Department - } { + subparagraph (A) of this
paragraph, the director + } shall consider the timing of
projected impacts of the proposed use in relation to other
factors, including but not limited to { - : - } changing
climate, recharge, incidental precipitation, out-of-stream
appropriations and return flows.
{ - (d) - } { + (D) + } If the { - Water Resources - }
director makes the finding specified in { - paragraph (a) of
this subsection, the Water Resources - } { + subparagraph (A)
of this paragraph, the + } director shall issue an order denying
the application unless:
{ - (A) - } { + (i) + } Mitigation is provided in
accordance with subsection { - (10) - } { + (11) + } of this
section; or
{ - (B) - } { + (ii) + } The applicant submits evidence to
overcome the finding under { - paragraph (a) of this
subsection - } { + subparagraph (A) of this paragraph + }.
{ - (e) - } { + (E) + } Except as provided under subsection
(13) of this section, if the { - Water Resources - } director
does not make the finding specified in { - paragraph (a) of
this subsection, the Water Resources - } { + subparagraph (A)
of this paragraph, the + } director shall issue an order
approving the application if the application otherwise meets the
requirements of ORS 537.505 to 537.795.
{ - (f) - } { + (F) + } A protest of any order issued under
this subsection may be filed in the same manner as a protest on
any application for a right to appropriate ground water.
{ - (g) - } { + (G) + } Each water right permit and
certificate for appropriation of ground water issued after July
19, 1995, for which a source of appropriation is within or above
a scenic waterway shall be conditioned to allow the regulation of
the use if analysis of data available after the permit or
certificate is issued discloses that the appropriation will
measurably reduce the surface water flows necessary to maintain
the free-flowing character of a scenic waterway in quantities
necessary for recreation, fish and wildlife in effect as of the
priority date of the right or as those quantities may be
subsequently reduced.
{ - (h) - } { + (H) + } { - Nothing in this subsection
shall - } { + This subsection does not + } limit the use of
ground water for a use exempted under ORS 537.545.
{ + (b) As used in this subsection, 'measurably reduce' means
that the use authorized under this subsection will individually
or cumulatively reduce surface water flows within the scenic
waterway in excess of a combined cumulative total of one percent
of the average daily flow or one cubic foot per second, whichever
is less, unless:
(A) The Department of Environmental Quality agrees to exceed
that amount; and
(B) Exceeding that amount will not significantly impair the
free-flowing character of these waters in quantities necessary
for recreation, fish and wildlife. + }
{ - (10) - } { + (11) + } The { - Water Resources
Commission or Water Resources - } director shall consider
mitigation measures and may include mitigation measures as
conditions in any water right permit or certificate to ensure the
maintenance of the free-flowing character of the scenic waterway
in quantities necessary for recreation, fish and wildlife.
{ - (11) - } { + (12) + } The { - Water Resources
Commission and the Water Resources - } director { + and the
Oregon Natural Resources Commission + } shall carry out their
responsibilities under ORS 536.220 to 536.590 with respect to the
waters within scenic waterways in conformity with the provisions
of this section.
{ - (12) As used in this section, 'measurably reduce' means
that the use authorized under subsection (9) of this section will
individually or cumulatively reduce surface water flows within
the scenic waterway in excess of a combined cumulative total of
one percent of the average daily flow or one cubic foot per
second, whichever is less, unless: - }
{ - (a) The Water Resources Department, the State Parks and
Recreation Department, the State Department of Fish and Wildlife,
the Department of Environmental Quality and the Department of
State Lands unanimously agree to exceed that amount; and - }
{ - (b) Exceeding that amount will not significantly impair
the free-flowing character of these waters in quantities
necessary for recreation, fish and wildlife. - }
(13) Before authorizing an appropriation that will reduce
streamflows within a scenic waterway in amounts up to but not
exceeding the amounts described in subsection { - (12) - }
{ + (9)(b) + } of this section, the { - Water Resources - }
director shall find:
(a) That the appropriation will not significantly impair the
free-flowing character of these waters in quantities necessary
for recreation, fish and wildlife.
(b) That the appropriation is consistent with provisions
pertaining to water appropriations and water rights under ORS
chapters 536 and 537 and the rules adopted thereunder.
(c) That construction, operation and maintenance of the
appropriation will be carried out in a manner consistent with the
purposes set forth in ORS 390.805 to 390.925.
(14) { - No placer mining shall be - } { + Placer mining is
not + } permitted on waters within scenic waterways other than
recreational placer mining.
(15) { - No person shall - } { + A person may not + } be
required to obtain a permit for recreational prospecting
resulting in the fill, removal or other alteration of less than
one cubic yard of material at any one individual site and,
cumulatively, not more than five cubic yards of material from
within the bed or wet perimeter of any single scenic waterway in
a single year. Recreational prospecting shall not occur at any
site where fish eggs are present.
(16) { - No provision of this section shall be construed
to - } { + This section does not + } exempt recreational placer
mining on a scenic waterway, other than recreational prospecting
not requiring a permit, from compliance with the provisions of
ORS 196.800 to 196.825 and 196.845 to 196.870 or rules adopted
pursuant to ORS 196.800 to 196.825 and 196.845 to 196.870.
(17) Recreational placer mining, other than recreational
prospecting not requiring a permit, { - shall - } { + may + }
not:
(a) Dam or divert a waterway or obstruct fish passage;
(b) Include nozzling, sluicing or digging outside the wet
perimeter of the stream, nor extend the wet perimeter;
(c) Include movement of boulders, logs, stumps or other woody
material from the wet perimeter other than movement by hand and
nonmotorized equipment;
(d) Involve the disturbance of rooted or embedded woody plants,
including trees and shrubs, regardless of their location;
(e) Include excavation from the streambank;
(f) Fail to level pits, piles, furrows or potholes outside the
main channel of the waterway upon leaving the site;
(g) Include operation of a suction dredge without a suction
dredge waste discharge permit from the Department of
Environmental Quality including, but not limited to, a
prohibition against dredging during periods when fish eggs could
be in the dredging site gravel;
(h) Be conducted on federal lands except as allowed by agencies
of the federal government;
(i) Impede boating;
(j) Include operation of a dredge between the hours of 6
p.m. and 8 a.m. within 500 feet of a residence or within 500 feet
of a campground except within a federally designated recreational
mining site; or
(k) Include operation of a dredge within the marked or posted
swimming area of a designated campground or day use area except
within a federally designated recreational mining site.
(18) As used in this section:
(a) 'Bed' means the land within the wet perimeter and any
adjacent nonvegetated dry gravel bar.
(b) 'Prospecting' means to search or explore for samples of
gold, silver or other precious minerals, using nonmotorized
methods, from among small quantities of aggregate.
(c) 'Recreational placer mining' includes, but is not limited
to, the use of nonmotorized equipment and motorized surface
dredges having an intake nozzle with an inside diameter not
exceeding four inches, a motor no larger than 16 horsepower and a
muffler meeting or exceeding factory-installed noise reduction
standards. 'Recreational placer mining' does not include
recreational prospecting that does not require a permit.
(d) 'Wet perimeter' means the area of the stream that is
underwater, or is exposed as a nonvegetated dry gravel bar island
surrounded on all sides by actively moving water at the time the
activity occurs.
SECTION 523. ORS 390.835, as amended by section 8, chapter 516,
Oregon Laws 2001, is amended to read:
390.835. (1) It is declared that the highest and best uses of
the waters within scenic waterways are recreation, fish and
wildlife uses. The free-flowing character of these waters shall
be maintained in quantities necessary for recreation, fish and
wildlife uses. A dam, reservoir or other water impoundment
facility may not be constructed on waters within scenic
waterways. A water diversion facility may not be constructed or
used except by right previously established or as permitted by
the { - Water Resources Commission - } { + Director of the
Oregon Department of Natural Resources + }, upon a finding that
such diversion is necessary to uses designated in ORS 536.310
(12), and in a manner consistent with the policies set forth
under ORS 390.805 to 390.925. { - The Water Resources
Commission shall administer and enforce the provisions of this
subsection. - }
(2) Filling of the beds or removal of material from or other
alteration of the beds or banks of scenic waterways for purposes
other than recreational prospecting not requiring a permit shall
be prohibited, except as permitted by the director { - of the
Department of State Lands - } upon a finding that such activity
would be consistent with the policies set forth under ORS 390.805
to 390.925 for scenic waterways and in a manner consistent with
the policies set forth under ORS 196.800 to 196.825 and 196.845
to 196.870 for removal of material from the beds and banks and
filling of any waters of this state. { - The Director of the
Department of State Lands shall administer and enforce the
provisions of this subsection. - }
{ + (3) The director shall administer and enforce the
provisions of subsections (1) and (2) of this section. + }
{ - (3)(a) - } { + (4)(a) + } Upon a finding of emergency
circumstances, the director { - of the Department of State
Lands - } may issue a temporary permit for the removal, filling
or alteration of the beds or banks within a scenic waterway.
{ - The temporary permit shall include conditions developed
after consultation with the State Department of Fish and Wildlife
and the State Parks and Recreation Department. - }
(b) As used in this subsection, 'emergency circumstances '
exist if prompt action is necessary to prevent irreparable harm,
injury or damage to persons or property.
{ - (4) - } { + (5) + } Any person adversely affected or
aggrieved by the grant or denial of a permit under subsection (2)
or { - (3) - } { + (4) + } of this section may appeal in
accordance with the procedure set forth in ORS 196.835.
{ - (5) - } { + (6) + } Nothing in ORS 390.805 to 390.925
affects the authority of the { - State Fish and Wildlife
Commission - } { + Oregon Department of Natural Resources or
the Oregon Natural Resources Commission + } to construct
facilities or make improvements to facilitate the passage or
propagation of fish { + , to exercise other responsibilities in
managing fish and wildlife resources + }or { - to exercise
other responsibilities in managing fish and wildlife resources.
Nothing in ORS 390.805 to 390.925 affects the authority of the
Water Resources Commission - } to construct and maintain stream
gauge stations and other facilities related to the
{ - commission's duties in - } administration of the water
laws.
{ - (6) - } { + (7) + } Upon a finding of necessity under
subsection (1) of this section, the { - Water Resources
Commission - } { + director + } may issue a water right for
human consumption not to exceed 0.005 cubic feet per second per
household, or livestock consumption uses not to exceed one-tenth
of one cubic foot per second per 1,000 head of livestock, as
designated in ORS 536.310 (12) within or above a scenic waterway
if the { - Water Resources Commission - } { + director + }
makes the following findings:
(a) That issuing the water right does not significantly impair
the free-flowing character of these waters in quantities
necessary for recreation, fish and wildlife.
(b) That issuing the water right is consistent with provisions
pertaining to water appropriation and water rights under ORS
chapters 536 and 537 and rules adopted thereunder.
(c) That construction, operation and maintenance of the
diversion system will be carried out in a manner consistent with
the purposes set forth in ORS 390.805 to 390.925.
(d) If the water right is for human consumption, an additional
finding that:
(A) The applicant cannot reasonably obtain water from any other
source;
(B) Denial of the water right would result in loss of
reasonable expectations for use of the property; and
(C) The system installed to divert water shall include
monitoring equipment to permit water use measurement and
reporting.
(e) If the water right is for livestock consumption, an
additional finding that:
(A) The right is necessary to prevent the livestock from
watering in or along the stream bed;
(B) The applicant cannot reasonably obtain water from any other
source; and
(C) The applicant has excluded livestock from the stream and
its adjacent riparian zone.
{ - (7) - } { + (8) + } In making the findings required
under subsection
{ - (6) - } { + (7) + } of this section, the { - Water
Resources Commission - } { + director + } shall consider the
existing or potential cumulative impacts of issuing the water
right.
{ - (8) - } { + (9) + } The { - Water Resources
Commission - } { + director + } may not allow human consumption
and livestock uses authorized under subsection { - (6) - }
{ + (7) + } of this section in excess of a combined cumulative
total of one percent of the average daily flow or one cubic foot
per second, whichever is less, unless:
{ - (a) The Water Resources Commission, the State Parks and
Recreation Department, the State Department of Fish and Wildlife,
the Department of Environmental Quality and the Department of
State Lands unanimously agree to exceed that amount; and - }
{ + (a) The Department of Environmental Quality agrees to
exceed that amount; and + }
(b) Exceeding that amount will not significantly impair the
free-flowing character of these waters in quantities necessary
for recreation, fish and wildlife.
{ - (9)(a) - } { + (10)(a)(A) + } The provisions of this
section do not apply to a water right application for the use of
ground water as defined in ORS 537.515, except upon a finding by
the { - Water Resources - } director based on a preponderance
of evidence that the use of ground water will measurably reduce
the surface water flows necessary to maintain the free-flowing
character of a scenic waterway in quantities necessary for
recreation, fish and wildlife.
{ - (b) - } { + (B) + } The { - Water Resources
Department - } { + Oregon Department of Natural Resources + }
shall review every application for the use of ground water to
determine whether to make the finding specified in
{ - paragraph (a) of this subsection - } { + subparagraph (A)
of this paragraph + }. The finding shall be based upon the
application of generally accepted hydrogeologic methods using
relevant and available field information concerning the proposed
use.
{ - (c) - } { + (C) + } In making the determination
required by { - paragraph (a) of this subsection, the Water
Resources Department - } { + subparagraph (A) of this paragraph,
the director + } shall consider the timing of projected impacts
of the proposed use in relation to other factors, including but
not limited to { - : - } changing climate, recharge, incidental
precipitation, out-of-stream appropriations and return flows.
{ - (d) - } { + (D) + } If the { - Water Resources - }
director makes the finding specified in { - paragraph (a) of
this subsection, the Water Resources - } { + subparagraph (A)
of this paragraph, the + } director shall issue an order denying
the application unless:
{ - (A) - } { + (i) + } Mitigation is provided in
accordance with subsection { - (10) - } { + (11) + } of this
section; or
{ - (B) - } { + (ii) + } The applicant submits evidence to
overcome the finding under { - paragraph (a) of this
subsection - } { + subparagraph (A) of this paragraph + }.
{ - (e) - } { + (E) + } Except as provided under subsection
(13) of this section, if the { - Water Resources - } director
does not make the finding specified in { - paragraph (a) of
this subsection, the Water Resources - } { + subparagraph (A)
of this paragraph, the + } director shall issue an order
approving the application if the application otherwise meets the
requirements of ORS 537.505 to 537.795.
{ - (f) - } { + (F) + } A protest of any order issued under
this subsection may be filed in the same manner as a protest on
any application for a right to appropriate ground water.
{ - (g) - } { + (G) + } Each water right permit and
certificate for appropriation of ground water issued after July
19, 1995, for which a source of appropriation is within or above
a scenic waterway shall be conditioned to allow the regulation of
the use if analysis of data available after the permit or
certificate is issued discloses that the appropriation will
measurably reduce the surface water flows necessary to maintain
the free-flowing character of a scenic waterway in quantities
necessary for recreation, fish and wildlife in effect as of the
priority date of the right or as those quantities may be
subsequently reduced.
{ - (h) - } { + (H) + } This subsection does not limit the
use of ground water for a use exempted under ORS 537.545.
{ + (b) As used in this subsection, 'measurably reduce' means
that the use authorized under this subsection will individually
or cumulatively reduce surface water flows within the scenic
waterway in excess of a combined cumulative total of one percent
of the average daily flow or one cubic foot per second, whichever
is less, unless:
(A) The Department of Environmental Quality agrees to exceed
that amount; and
(B) Exceeding that amount will not significantly impair the
free-flowing character of these waters in quantities necessary
for recreation, fish and wildlife. + }
{ - (10) - } { + (11) + } The { - Water Resources
Commission or Water Resources - } director shall consider
mitigation measures and may include mitigation measures as
conditions in any water right permit or certificate to ensure the
maintenance of the free-flowing character of the scenic waterway
in quantities necessary for recreation, fish and wildlife.
{ - (11) - } { + (12) + } The { - Water Resources
Commission and the Water Resources - } director { + and the
Oregon Natural Resources Commission + } shall carry out their
responsibilities under ORS 536.220 to 536.590 with respect to the
waters within scenic waterways in conformity with the provisions
of this section.
{ - (12) As used in this section, 'measurably reduce' means
that the use authorized under subsection (9) of this section will
individually or cumulatively reduce surface water flows within
the scenic waterway in excess of a combined cumulative total of
one percent of the average daily flow or one cubic foot per
second, whichever is less, unless: - }
{ - (a) The Water Resources Department, the State Parks and
Recreation Department, the State Department of Fish and Wildlife,
the Department of Environmental Quality and the Department of
State Lands unanimously agree to exceed that amount; and - }
{ - (b) Exceeding that amount will not significantly impair
the free-flowing character of these waters in quantities
necessary for recreation, fish and wildlife. - }
(13) Before authorizing an appropriation that will reduce
streamflows within a scenic waterway in amounts up to but not
exceeding the amounts described in subsection { - (12) - }
{ + (9)(b) + } of this section, the { - Water Resources - }
director shall find:
(a) That the appropriation will not significantly impair the
free-flowing character of these waters in quantities necessary
for recreation, fish and wildlife.
(b) That the appropriation is consistent with provisions
pertaining to water appropriations and water rights under ORS
chapters 536 and 537 and the rules adopted thereunder.
(c) That construction, operation and maintenance of the
appropriation will be carried out in a manner consistent with the
purposes set forth in ORS 390.805 to 390.925.
(14) Placer mining is not permitted on waters within scenic
waterways, other than recreational placer mining.
(15) A person may not be required to obtain a permit for
recreational prospecting or other nonmotorized recreational
activity resulting in the fill, removal or other alteration of
less than one cubic yard of material at any one individual site
and, cumulatively, not more than five cubic yards of material
from within the bed or wet perimeter of any single scenic
waterway in a single year. Recreational prospecting shall not
occur at any site where fish eggs are present.
(16) This section does not exempt recreational placer mining on
a scenic waterway, other than recreational prospecting not
requiring a permit, from compliance with the provisions of ORS
196.800 to 196.825 and 196.845 to 196.870 or rules adopted
pursuant to ORS 196.800 to 196.825 and 196.845 to 196.870.
(17) Recreational placer mining may not:
(a) Dam or divert a waterway or obstruct fish passage;
(b) Include nozzling, sluicing or digging outside the wet
perimeter of the stream, nor extend the wet perimeter;
(c) Include movement of boulders, logs, stumps or other woody
material from the wet perimeter other than movement by hand and
nonmotorized equipment;
(d) Involve the disturbance of rooted or embedded woody plants,
including trees and shrubs, regardless of their location;
(e) Include excavation from the streambank;
(f) Fail to level pits, piles, furrows or potholes outside the
main channel of the waterway upon leaving the site;
(g) Include operation of a suction dredge without a suction
dredge waste discharge permit from the Department of
Environmental Quality including, but not limited to, a
prohibition against dredging during periods when fish eggs could
be in the dredging site gravel;
(h) Be conducted on federal lands except as allowed by agencies
of the federal government;
(i) Impede boating;
(j) Include operation of a dredge between the hours of 6 p.m.
and 8 a.m. within 500 feet of a residence or within 500 feet of a
campground except within a federally designated recreational
mining site; or
(k) Include operation of a dredge within the marked or posted
swimming area of a designated campground or day use area except
within a federally designated recreational mining site.
(18) As used in this section:
(a) 'Bed' means the land within the wet perimeter and any
adjacent nonvegetated dry gravel bar.
(b) 'Prospecting' means to search or explore for samples of
gold, silver or other precious minerals, using nonmotorized
methods, from among small quantities of aggregate.
(c) 'Recreational placer mining' includes, but is not limited
to, the use of nonmotorized equipment and motorized surface
dredges having an intake nozzle with an inside diameter not
exceeding four inches, a motor no larger than 16 horsepower and a
muffler meeting or exceeding factory-installed noise reduction
standards. 'Recreational placer mining' does not include
recreational prospecting that does not require a permit.
(d) 'Wet perimeter' means the area of the stream that is
underwater, or is exposed as a nonvegetated dry gravel bar island
surrounded on all sides by actively moving water at the time the
activity occurs.
SECTION 524. ORS 390.845 is amended to read:
390.845. (1) { - Except as provided in ORS 390.835, - }
Scenic waterways shall be administered by the { - State Parks
and Recreation Department - } { + Oregon Department of Natural
Resources + }, each in such manner as to protect and enhance the
values { - which - } { + that + } caused such scenic waterway
to be included in the system { + and to fulfill the department's
duties under ORS 390.835 + }. In such administration primary
emphasis shall be given to protecting the aesthetic, scenic, fish
and wildlife, scientific and recreation features, based on the
special attributes of each area.
(2) After consultation with { - the State Board of Forestry,
the State Department of Agriculture and the affected counties and
with the concurrence of the Water Resources Commission, the
department - } { + the State Department of Agriculture and the
affected counties, the Oregon Department of Natural Resources + }
shall adopt rules governing the management of related adjacent
land. Such rules shall be adopted in accordance with ORS chapter
183. Such rules shall reflect management principles, standards
and plans applicable to scenic waterways, their shore lines and
related adjacent land and, if necessary, establish varying
intensities of protection or development based on special
attributes of each area. Such management principles, standards
and plans shall protect or enhance the aesthetic and scenic
values of the scenic waterways and permit compatible
agricultural, forestry and other land uses. Specifically, and
not in limitation of the foregoing, such rules shall provide
that:
(a) No roads, railroads or utilities shall be constructed
within any scenic waterway except where necessary to serve the
permissible uses, as { - defined in subsection (2) of this
section - } { + described in this subsection + } and in the
rules of the department, of the related adjacent land or unless
department approval of such use is obtained as provided in
subsection (4) or (5) of this section. The department wherever
practicable shall require the sharing of land and air space by
such roads, railroads and utilities. All permissible roads,
railroads and utilities shall be located in such a manner as to
minimize the disturbance of the natural beauty of a scenic
waterway;
(b) Forest crops shall be harvested in such manner as to
maintain as nearly as reasonably is practicable the natural
beauty of the scenic waterway;
(c) Occupants of related adjacent land shall avoid pollution of
waters within a scenic waterway;
(d) The surface of related adjacent land shall not be disturbed
for prospecting or mining unless the department's approval is
obtained under subsection (4) or (5) of this section; and
(e) Unless department approval of the proposed use is obtained
under subsection (4) or (5) of this section, no commercial,
business or industrial structures or buildings other than
structures or buildings erected in connection with an existing
use shall be erected or placed on related adjacent land. All
structures and buildings erected or placed on such land shall be
in harmony with the natural beauty of the scenic waterway and
shall be placed a sufficient distance from other structures or
buildings so as not to impair substantially such natural beauty.
No signs or other forms of outdoor advertising that are visible
from waters within a scenic waterway shall be constructed or
maintained.
(3) No person shall put related adjacent land to uses that
violate ORS 390.805 to 390.925 or the rules of the department
adopted under ORS 390.805 to 390.925 or to uses to which the land
was not being put before December 3, 1970, or engage in the
cutting of trees, or mining, or prospecting on such lands or
construct roads, railroads, utilities, buildings or other
structures on such lands, unless the owner of the land has given
to the department written notice of such proposed use at least
one year prior thereto and has submitted to the department with
the notice a specific and detailed description of such proposed
use or has entered into agreement for such use with the
department under subsection (5) of this section. The owner may,
however, act in emergencies without the notice required by ORS
390.805 to 390.925 when necessary in the interests of public
safety.
(4) Upon receipt of the written notice provided in subsection
(3) of this section, the department shall first determine whether
in its judgment the proposed use would impair substantially the
natural beauty of a scenic waterway. If the department determines
that the proposal, if put into effect, would not impair
substantially the natural beauty of the scenic waterway, the
department shall notify in writing the owner of the related
adjacent land that the owner may immediately proceed with the
proposed use as described to the department. If the department
determines that the proposal, if put into effect, would impair
substantially the natural beauty of the scenic waterway, the
department shall notify in writing the owner of the related
adjacent land of such determination and no steps shall be taken
to carry out such proposal until at least one year after the
original notice to the department. During such period:
(a) The department and the owner of the land involved may agree
upon modifications or alterations of the proposal so that
implementation thereof would not in the judgment of the
department impair substantially the natural beauty of the scenic
waterway; or
(b) The department may acquire by purchase, gift or exchange,
the land involved or interests therein, including scenic
easements, for the purpose of preserving the natural beauty of
the scenic waterway.
(5) The department, upon written request from an owner of
related adjacent land, shall enter into negotiations and endeavor
to reach agreement with such owner establishing for the use of
such land a plan that would not impair substantially the natural
beauty of the scenic waterway. At the time of such request for
negotiations, the owner may submit a plan in writing setting
forth in detail proposed uses. Three months after the owner makes
such a request for negotiations with respect to use of land,
either the department or the owner may give written notice that
the negotiations are terminated without agreement. Nine months
after the notice of termination of negotiations the owner may use
land in conformity with any specific written plan submitted by
the owner prior to or during negotiations. In the event the
department and the owner reach agreement establishing a plan for
land use, such agreement is terminable upon at least one year's
written notice by either the department or the owner.
(6) { - With the concurrence of the Water Resources
Commission, - } The department may institute condemnation
proceedings and by condemnation acquire related adjacent land:
(a) At any time subsequent to nine months after the receipt of
notice of a proposal for the use of such land that the department
determines would, if carried out, impair substantially the
natural beauty of a scenic waterway unless the department and the
owner of such land have entered into an agreement as contemplated
by subsection (4) or (5) of this section or the owner shall have
notified the department of the abandonment of such proposal; or
(b) At any time related adjacent land is used in a manner
violating ORS 390.805 to 390.925, the rules of the department or
any agreement entered into by the department pursuant to
subsection (4) or (5) of this section; or
(c) At any time related adjacent land is used in a manner
which, in the judgment of the department, impairs substantially
the natural beauty of a scenic waterway, if the department has
not been given at least one year's advance written notice of such
use and if there is not in effect department approval of such use
pursuant to subsection (4) or (5) of this section.
(7) In such condemnation the owner of the land shall not
receive any award for the value of any structure, utility, road
or other improvement constructed or erected upon the land after
December 3, 1970, unless the department has received written
notice of such proposed structure, utility, road or other
improvement at least one year prior to commencement of
construction or erection of such structure, utility, road or
other improvement or unless the department has given approval for
such improvement under subsection (4) or (5) of this section. If
the person owned the land on December 3, 1970, and for a
continuous period of not less than two years immediately prior
thereto, the person shall receive no less for the land than its
value on December 3, 1970. The department shall not acquire by
condemnation a scenic easement in land. When the department
acquires any related adjacent land that is located between a lake
or river and other land that is owned by a person having the
right to the beneficial use of waters in the river by virtue of
ownership of the other land:
(a) The right to the beneficial use of such waters shall not be
affected by such condemnation; and
(b) The owner of the other land shall retain a right of access
to the lake or river necessary to use, store or divert such
waters as the owner has a right to use, consistent with
concurrent use of the land so condemned as a part of the Oregon
Scenic Waterways System.
(8) Any owner of related adjacent land, upon written request to
the department, shall be provided copies of rules then in effect
or thereafter adopted by the department pursuant to ORS 390.805
to 390.925.
(9) The department shall furnish to any member of the public
upon written request and at expense of the member a copy of any
notice filed pursuant to subsection (3) of this section.
(10) If a scenic waterway contains lands or interests therein
owned by or under the jurisdiction of an Indian tribe, the United
States, another state agency or local governmental agency, the
department may enter into agreement with the tribe or the
federal, state or local agency for the administration of such
lands or interests therein in furtherance of the purposes of ORS
390.805 to 390.925.
SECTION 525. ORS 390.848 is amended to read:
390.848. (1) The { - State Parks and Recreation
Department - } { + Oregon Department of Natural Resources + }
shall establish, by rule, a system for issuing passes necessary
to comply with the requirements under ORS 390.851. The department
shall establish a reasonable fee for issuance of a pass under
this section. The department may establish any form of proof of
payment of the user fees that it deems appropriate.
(2) The system for issuance of passes established by the
department under this section may include issuance of the passes
by governmental entities or private persons who have entered into
appropriate agreements with the department for issuance of the
passes. Agreements under this subsection may include, but are not
limited to, terms providing for locations for the collection of
fees, methods the department determines appropriate to assure
payment of moneys collected and provisions for the distribution
of river-user information.
(3) The department shall issue, without charge, annual passes
to comply with the requirements under ORS 390.851 to persons who
own ranch, farm or residential property immediately abutting
those portions of the Deschutes River designated as scenic
waterways under ORS 390.826 and to members of the immediate
family of such persons. This subsection does not authorize the
issuance without charge of passes to persons holding less than a
majority interest in a firm, corporation or cooperative
organization which owns land immediately abutting the Deschutes
River designated as scenic waterways under ORS 390.826.
(4) { + (a) + } Moneys collected under this section shall be
deposited in the { - separate fund established for the State
Parks and Recreation Department under - } { + Oregon Natural
Resources Fund pursuant to + } ORS 366.512 { + . + }
{ - and, - }
{ + (b) + } Subject to the limitations { - under subsection
(5) of this section, are continually appropriated to that
department to be used: - } { + of paragraph (c) of this
subsection, moneys collected under this section are continuously
appropriated to the department: + }
{ - (a) - } { + (A) + } For operation of the pass system
established under this section;
{ - (b) - } { + (B) + } For providing river-user oriented
law enforcement services;
{ - (c) - } { + (C) + } For providing river recreation
information and education;
{ - (d) - } { + (D) + } For developing and maintaining
river oriented recreation facilities; and
{ - (e) - } { + (E) + } For any other purposes the
department considers appropriate for the maintenance, enhancement
or protection of the natural and scenic beauty of the scenic
waterway consistent with ORS 390.805 to 390.925.
{ - (5) - } { + (c) + } The use of moneys for purposes
described under
{ - subsection (4) of this section - } { + paragraph (b) of
this subsection + } is limited to the performance of those
purposes for areas of the Deschutes River designated as scenic
waterways under ORS 390.826.
SECTION 526. ORS 390.855 is amended to read:
390.855. The { - State Parks and Recreation Department - }
{ + Oregon Department of Natural Resources + } shall undertake a
continuing study and submit periodic reports to the Governor,
{ - with the concurrence of the Water Resources Commission, - }
recommending the designation of additional rivers or segments of
rivers and related adjacent land by the Governor as scenic
waterways subject to the provisions of ORS 390.805 to 390.925.
Consistent with such recommendation, the Governor may designate
any river or segment of a river and related adjacent land as a
scenic waterway subject to the provisions of ORS 390.805 to
390.925. The department shall consult with { - the State Fish
and Wildlife Commission, - } the State Department of
Agriculture, the Environmental Quality Commission { - , the
Department of State Lands, - } and such other persons or
agencies as it considers appropriate. The { - State Parks and
Recreation Department - } { + Oregon Department of Natural
Resources + } shall conduct hearings in the counties in which the
proposed additional rivers or segments of rivers are located. The
following criteria shall be considered in making such report:
(1) The river or segment of river is relatively free-flowing
and the scene as viewed from the river and related adjacent land
is pleasing, whether primitive or rural-pastoral, or these
conditions are restorable.
(2) The river or segment of river and its setting possess
natural and recreation values of outstanding quality.
(3) The river or segment of river and its setting are large
enough to sustain substantial recreation use and to accommodate
existing uses without undue impairment of the natural values of
the resource or quality of the recreation experience.
SECTION 527. ORS 390.875 is amended to read:
390.875. Any public land within or adjacent to a scenic
waterway, with the consent of the governing body having
jurisdiction thereof, may be transferred to the jurisdiction of
the { - State Parks and Recreation Department - } { + Oregon
Department of Natural Resources + } with or without compensation.
Any land so transferred shall become state recreational land and
shall be administered as a part of the scenic waterway. Any such
land within a scenic waterway which is not transferred to the
jurisdiction of the department, to the fullest extent consistent
with the purposes for which the land is held, shall be
administered by the body having jurisdiction thereof in
accordance with the provisions of ORS 390.805 to 390.925.
SECTION 528. ORS 390.885 is amended to read:
390.885. In acquiring related adjacent land by exchange, the
{ - State Parks and Recreation Department - } { + Oregon
Department of Natural Resources + } may accept title to any
property within a scenic waterway, and in exchange therefor, may
convey to the grantor of such property any property under its
jurisdiction that the department is not otherwise restricted from
exchanging. In so far as practicable, the properties so exchanged
shall be of approximately equal fair market value. If they are
not of approximately equal fair market value, the department may
accept cash or property from, or pay cash or grant property to,
the grantor in order to equalize the values of the properties
exchanged.
SECTION 529. ORS 390.895 is amended to read:
390.895. In addition to State of Oregon funds available for the
purposes of ORS 390.805 to 390.925, the { - State Parks and
Recreation Department - } { + Oregon Department of Natural
Resources + } shall use such portion of moneys made available to
it by the
{ - Bureau of Outdoor Recreation and other federal agencies - }
{ + federal government + }, including matching funds, as the
department determines are necessary and available to carry out
the purposes of ORS 390.805 to 390.925.
SECTION 530. ORS 390.910 is amended to read:
390.910. In carrying out the provisions of ORS 390.805 to
390.925, the { - State Parks and Recreation Department - }
{ + Oregon Department of Natural Resources + } may enter into
intergovernmental agreements to form committees to advise the
various governmental agencies involved regarding management of
the scenic waterways. Each such agreement must provide for
membership on the committee of a representative of one of the
governing bodies of the counties through which the scenic
waterway flows. The county representative shall be chosen by the
Governor from among those individuals recommended to the Governor
by the county governing bodies.
SECTION 531. ORS 390.925 is amended to read:
390.925. In addition to any other penalties provided by law for
violation of ORS 390.805 to 390.925 or rules adopted thereunder,
the { - State Parks and Recreation Department - } { + Oregon
Department of Natural Resources + } is vested with power to
obtain injunctions and other appropriate relief against
violations of any provisions of ORS 390.805 to 390.925 and any
rules adopted under ORS 390.805 to 390.925 and agreements made
under ORS 390.805 to 390.925.
SECTION 532. ORS 390.930 is amended to read:
390.930. As used in ORS 390.930 to 390.940:
(1) 'Managing agencies' includes:
{ - (a) State Parks and Recreation Department; - }
{ - (b) State Department of Fish and Wildlife; - }
{ - (c) - } { + (a) + } Confederated Tribes of the Warm
Springs Indian Reservation;
{ - (d) - } { + (b) + } State Marine Board;
{ - (e) - } { + (c) + } Sherman, Wasco and Jefferson
Counties;
{ - (f) - } { + (d) + } Oregon State Police;
{ - (g) - } { + (e) + } United States Bureau of Land
Management;
{ - (h) - } { + (f) + } United States Bureau of Indian
Affairs; and
{ - (i) - } { + (g) + } The City of Maupin.
(2) 'Recreation area' means the Deschutes River Scenic Waterway
Recreation Area created under ORS 390.932.
SECTION 533. ORS 390.934 is amended to read:
390.934. (1) The { - State Parks and Recreation
Department - } { + Oregon Department of Natural Resources + }
shall have primary management responsibility for the State of
Oregon to manage the Deschutes River Scenic Waterway Recreation
Area. In managing the recreation area, the department shall
cooperate with other managing agencies having jurisdiction to
manage all or part of the recreational area.
(2) The department shall adopt a management plan by rule. The
department shall implement the plan and shall prepare a budget
for implementation taking into consideration the provisions of
the management plan.
SECTION 534. ORS 390.936 is amended to read:
390.936. In accordance with applicable provisions of ORS
chapter 183, the { - State Parks and Recreation Department - }
{ + Oregon Department of Natural Resources + } shall adopt rules
necessary to carry out those provisions of ORS 390.930 to 390.940
that the department is charged with administering.
SECTION 535. ORS 390.940 is amended to read:
390.940. The { - State Parks and Recreation Department - }
{ + Oregon Department of Natural Resources + } and state and
local managing agencies shall manage the Deschutes River Scenic
Waterway Recreation Area according to the provisions of ORS
390.805 to 390.925 and 390.930 to 390.940 and rules adopted under
ORS 390.805 to 390.925 and 390.930 to 390.940. Federal and tribal
managing agencies with jurisdiction over their respective lands
and waters shall be encouraged to manage their lands and waters
in a manner consistent with the provisions of ORS 390.805 to
390.925 and 390.930 to 390.940.
SECTION 536. ORS 390.959 is amended to read:
390.959. The system of Oregon recreation trails shall be
composed of trails established as provided in ORS 390.962 and
390.965. The { - State Parks and Recreation Department - }
{ + Oregon Department of Natural Resources + }, in consultation
with appropriate federal, state and local governmental agencies
and public and private organizations, shall establish a uniform
marker for the system of Oregon recreation trails.
SECTION 537. ORS 390.962 is amended to read:
390.962. (1) Upon finding that such trails will meet the
criteria established in ORS 390.950 to 390.989 and 390.995 (2)
and such supplementary criteria as the { - State Parks and
Recreation Department - } { + Oregon Department of Natural
Resources + } may prescribe, the department is encouraged and
empowered to establish and designate Oregon recreation trails:
(a) Over lands owned by the State of Oregon, by the federal
government or by any county, municipality or other local
governmental body, with the consent of the state agency, federal
agency, county, municipality or other local governmental body
having jurisdiction over the lands involved; or
(b) Over lands owned by private persons, in the manner and
subject to the limitations provided in ORS 390.950 to 390.989 and
390.995 (2).
(2) In establishing such trails, the department shall give
special recognition to the need for the establishment of
recreation trails in or near, or reasonably accessible to, urban
areas. Upon the establishment of any such trail, the department
shall designate the primary kind of trail it is to be, based upon
the mode or modes of travel to be permitted on such trail,
including one or more of the following:
(a) Footpath.
(b) Horseback riding trail.
(c) Bicycle path.
(3) Nothing in ORS 390.950 to 390.989 and 390.995 (2) affects
any other statute authorizing trails for motorized vehicles which
is not inconsistent with ORS 390.950 to 390.989 and 390.995 (2).
SECTION 538. ORS 390.965 is amended to read:
390.965. (1) The { - State Parks and Recreation
Department - } { + Oregon Department of Natural Resources + }
may establish trails after public meetings in the areas of the
state where trails are planned and only in accordance with the
following criteria:
(a) Emphasis shall be given to the development of trails across
public lands.
(b) No trails shall cross private land occupied by a
residential dwelling, or upon which a residential dwelling is
under construction, within 300 feet of such residential dwelling,
without the consent of the owner.
(c) Trails shall be selected to minimize the adverse effects on
adjacent landowners or users and their operations.
(d) Development and management of trails shall be designed to
harmonize with and complement any established forest,
agricultural, or other use plan that is compatible with the
purposes of ORS 390.950 to 390.989 and 390.995 (2).
(2) Before establishing a trail { + , + } the department shall
consider at a public meeting the following information:
(a) The proposed route of such trail (including maps and
illustrations) and the recommended mode or modes of travel to be
permitted thereon;
(b) The areas adjacent to such trails, to be utilized for
scenic, historic, natural, cultural or developmental purposes;
(c) The characteristics that, in the judgment of the
department, make the proposed trail suitable as an Oregon
recreation trail;
(d) The current status of land ownership and current and
potential use along the designated route;
(e) The estimated cost of acquisition of lands or interest in
lands, if any;
(f) The plans for developing and maintaining the trail and the
cost thereof;
(g) Any anticipated problems of policing the use of such trail
and any anticipated hazards to the use of any privately owned
lands adjacent to such trail; and
(h) The extent to which the state or its political subdivisions
and public and private organizations might reasonably be expected
to participate in acquiring the necessary lands and in the
administration thereof.
SECTION 539. ORS 390.968 is amended to read:
390.968. (1) The { - State Parks and Recreation
Department - } { + Oregon Department of Natural Resources + }
shall select the rights of way for trails designated as Oregon
Recreation Trails by ORS 390.962 (1)(a) and (b). Such rights of
way shall be:
(a) Of sufficient width and so located as to protect natural
conditions, scenic and historic features, and any primitive
character of the trail area; to provide campsites, shelters, and
related public-use facilities along trails in more remote areas;
and to provide reasonable public access.
(b) Located to avoid, in so far as reasonably practicable,
established highways, motor roads, mining areas, power
transmission lines, existing commercial and industrial
developments, range fences and improvements, private logging
operations, and any other activities that would be incompatible
with the protection of the trailside environment in its natural
condition and the use of the trail for outdoor recreation.
(2) Notwithstanding subsection (1) of this section, it is
recognized that in many instances (especially in urban areas and
for some types of trails across or near private land) it may be
advisable to locate segments of trails in or near existing rights
of way for roads, highways, public utilities or
telecommunications utilities, excluding power transmission lines;
and it is recognized that trail rights of way on occasion may be
located, or from time to time relocated, through, or adjacent to,
lands used for private timber (including logging), agriculture,
commercial or industrial operations and that such location or
relocation of a trail right of way, of itself, shall not impose
any limitation upon an otherwise lawful use of the adjacent
private land except to the extent of the terms of any agreement
with the private landowner as provided in ORS 390.971 (1) and
except as may be provided by any zoning ordinance, law or
regulation.
(3) The location and width of an Oregon recreation trail right
of way across federal lands under the jurisdiction of a federal
agency shall be by agreement between that agency and the
department.
(4) In selecting a right of way, the department shall endeavor
to obtain the advice and assistance of the local governments,
private organizations, landowners, the land users concerned, and
the advisory council established under ORS 390.977.
(5) The department shall hold a public hearing in the area of
the state where the selection of such right of way is to be made.
Subject to ORS 390.971, after public hearing, the department may
revise the location and width of a right of way from time to time
as required by circumstances, with the consent of the head of any
federal agency involved, and with such advice and assistance of
the local governments, private organizations, landowners, land
users, and the advisory council, as the department considers
necessary or advisable.
SECTION 540. ORS 390.971 is amended to read:
390.971. (1) Within the exterior boundaries of areas under its
administration that are included in the right of way selected for
an Oregon recreation trail as provided in ORS 390.950 to 390.989
and 390.995 (2), the { - State Parks and Recreation
Department - } { + Oregon Department of Natural Resources + }
may do any of the following:
(a) Enter into written cooperative agreements with landowners,
federal agencies, other state agencies, local governments,
private organizations and individuals in order to provide for the
development, operation, maintenance, location and relocation of
the trail. Where the trail crosses commercial forestland, such
agreement shall make reasonable provision for temporary
relocation reasonably required for commercial forest management.
(b) Subject to limitations set forth in ORS 390.950 to 390.989
and 390.995 (2), acquire lands or interests in lands by donation,
purchase with donated or appropriated funds or exchange, or with
funds obtained under ORS 390.980.
(2) The department, in the exercise of its exchange authority,
may accept title to any nonstate-owned property within a trail
right of way, and, in exchange therefor, the department may
convey to the grantor of such property any state-owned property
under its jurisdiction or the jurisdiction of any state agency
consenting to such exchange that the department or the applicable
consenting state agency classifies as suitable for exchange or
other disposal. The values of the properties so exchanged either
shall be approximately equal or, if they are not approximately
equal, the values shall be equalized by the payment of cash to
the grantor or to the department or applicable consenting state
agency as the circumstances require.
(3) If lands included in an Oregon recreation trail right of
way are outside the exterior boundaries of state or federally
administered areas, the department shall attempt, and any local
governments involved shall be encouraged, to enter into written
cooperative agreements with landowners, local government, private
organizations and individuals in order to develop, administer and
maintain the trails and to acquire, develop and administer such
lands or interests therein. However, if the department or local
governments fail or are unable to enter into such agreements or
to acquire such lands or interests therein within one year after
the selection of the right of way, the department may acquire
private lands or interests therein by donation, exchange or
purchase with donated or appropriated funds and may develop and
administer such lands or interests therein. Exchanges shall be
governed by the provisions of subsection (2) of this section.
(4) Oregon recreation trails shall be administered, protected,
developed and maintained by the department, or as provided under
subsection (1)(a) of this section, to retain their natural,
scenic and historic features. Along trails in more remote areas,
provision may be made for campsites, shelters and related
public-use facilities. Other uses, including reasonable crossings
for motor vehicles, public utilities and water pipes and ditches,
that will not substantially interfere with the nature and
purposes of the trails may be permitted or authorized, as
appropriate. The use of motorized vehicles by the general public
along any such Oregon recreation trail is prohibited. However,
the department shall authorize the use of motorized vehicles
when, in its judgment, such vehicles are necessary to meet
emergencies, trail construction and maintenance needs or to
enable adjacent landowners or land users to have reasonable
access to their lands or timber rights. The fact that private
lands are included in an Oregon recreation trail by cooperative
agreement of a landowner does not preclude the owner of such
lands or agents of the owner from using motorized vehicles on or
across such trails or adjacent lands from time to time in
accordance with such agreement. Except to the extent otherwise
provided by law, the state laws, rules and regulations applicable
to lands or areas included in any Oregon recreation trail shall
continue to apply. Nothing in ORS 390.950 to 390.989 and 390.995
(2) prohibits the use of roads existing on private lands on
September 9, 1971, which may cross or traverse portions of the
trail right of way, nor shall ORS 390.950 to 390.989 and 390.995
(2) prevent trails from crossing such roads.
(5) The department shall endeavor to induce agreements with
appropriate state and federal agencies to provide for youth work
projects to assist in the construction and maintenance of trails
that are part of the Oregon recreation trails system.
(6) The department shall endeavor, when it considers such to be
appropriate, to develop and enhance the educational values and
opportunities of Oregon recreation trails. In this connection the
department shall cooperate with schools, educators and other
interested persons or groups in developing and utilizing
techniques and materials to demonstrate to and inform the
trail-using public of various scenic and natural features visible
along or from such trails, including geological, botanical,
historical, zoological and similar features.
(7) The department shall place and endeavor to maintain signs
at such places as it considers appropriate along Oregon
recreation trails advising users of the Oregon laws of criminal
trespass and encouraging users to protect the trails and the
rights and property of adjacent landowners.
(8) The department, with the concurrence of any federal agency
administering lands through which an Oregon recreation trail
passes, and after consultation with the local governments,
private organizations and landowners that the department knows or
believes to be concerned, and the advisory council established
under ORS 390.977, may adopt rules that may be revised from time
to time governing protection, management, use, development and
administration of an Oregon recreation trail.
(9) The department, on lands not within a forest protection
district, upon recommendation of the { - State Forester - }
{ + Director of the Oregon Department of Natural Resources + },
shall have the authority to close trails during periods of high
fire danger. The department shall also have the authority to
close trails if it deems it necessary to protect the safety of
the public.
(10) Notwithstanding the provisions of ORS chapter 477,
forestland on which a fire exists that was caused by a person
using, for recreational purposes, a trail established pursuant to
ORS 390.950 to 390.989, shall not be considered an operation area
as defined by ORS 477.001, if the fire did not start within an
operation.
SECTION 541. ORS 390.974 is amended to read:
390.974. The { - State Parks and Recreation Department - }
{ + Oregon Department of Natural Resources + } is authorized and
encouraged to consult and to cooperate with any state, federal or
local governmental agency or body and with any privately owned
utility having jurisdiction or control over or information
concerning the use, abandonment or disposition of roadways,
utility rights of way or other properties suitable for the
purpose of improving or expanding the Oregon recreation trails
system in order to { - assure - } { + ensure + }, to the
extent practicable, that any such properties having value for
Oregon recreation trail purposes may be made available for such
use.
SECTION 542. ORS 390.977 is amended to read:
390.977. (1) There is established an Oregon Recreation Trails
Advisory Council consisting of seven members, at least one from
each congressional district in the state. However, not less than
two of such members shall be from separate counties bordering
upon the ocean shore. Members of the council shall be appointed
by the
{ - State Parks and Recreation Commission - } { + Oregon
Natural Resources Commission + } and shall serve at the pleasure
of the commission for terms of four years. Before the expiration
of the term of a member, the commission shall appoint a
successor. A member shall be eligible for reappointment. If there
is a vacancy for any cause, the commission shall make an
appointment to become immediately effective for the unexpired
term.
(2) The commission and the { - State Parks and Recreation
Department - } { + Oregon Department of Natural Resources + }
shall consult with the council from time to time with respect to
matters relating to Oregon recreation trails, including the
designation and establishment of Oregon recreation trails, the
selection of rights of way, the selection, erection and
maintenance of markers along the trail routes and the
administration of the trails.
(3) Members of the council shall serve without compensation,
but the department may pay expenses as provided in ORS 292.495.
(4) The council shall select one of its members as chairperson.
(5) A majority of the members of the council constitutes a
quorum for the transaction of business.
(6) The council shall meet at times and places specified by the
call of the chairperson or a majority of the members of the
council.
SECTION 543. ORS 390.980 is amended to read:
390.980. In addition to State of Oregon funds available for the
purposes of ORS 390.950 to 390.989 and 390.995 (2), the
{ - State Parks and Recreation Department - } { + Oregon
Department of Natural Resources + } may use such portion of
moneys made available to it by any federal agency { - which - }
{ + that + } may be used for such purposes, including matching
funds, as the department determines are necessary or desirable to
carry out the purposes of ORS 390.950 to 390.989 and 390.995 (2).
In addition to the foregoing, the department may receive and may
encourage the receipt of donated funds or property from
individuals, groups or organizations (including trail users) for
specified or nonspecified uses in connection with the
acquisition, development, maintenance and administration of
Oregon recreation trails. The department if it considers it
advisable, may provide under its rules and regulations, for the
use of a portion of any such donated funds received for
nonspecified purposes to grant to an owner of private land
adjacent to an Oregon recreation trail, funds indemnifying such
owner for damage clearly caused to the land of the owner, and
property therein, by users of such trail and which such landowner
has not been able to recover from the user causing such damage.
SECTION 544. ORS 390.986 is amended to read:
390.986. The { - State Parks and Recreation Department - }
{ + Oregon Department of Natural Resources + } has power to
obtain injunctions against violations of any provisions of ORS
390.950 to 390.989 and any rules and regulations adopted under
ORS 390.950 to 390.989 and agreements made under ORS 390.950 to
390.989.
SECTION 545. ORS 390.989 is amended to read:
390.989. Any power of eminent domain otherwise vested in the
{ - State Parks and Recreation Department - } { + Oregon
Department of Natural Resources + } does not apply to any power
or duty vested in the department by ORS 390.950 to 390.989.
SECTION 546. ORS 390.992 is amended to read:
390.992. (1) Any person who violates any provision of ORS
390.610, 390.620 to 390.676, 390.690 and 390.705 to 390.770 or
any rule, order or permit adopted or issued under ORS 390.610,
390.620 to 390.676, 390.690 and 390.705 to 390.770 shall be
subject to a civil penalty in an amount to be determined by the
{ - State Parks and Recreation Director - } { + Director of
the Oregon Department of Natural Resources + } of not more than
$10,000 per day of violation.
(2) In addition to any other penalties provided under
subsection (1) of this section, the { - State Parks and
Recreation Department - } { + Oregon Department of Natural
Resources + } is vested with power to obtain injunctions and
other appropriate relief against a person who violates any
provisions of ORS 390.610, 390.620 to 390.676, 390.690 and
390.705 to 390.770 or any rule, order or permit adopted or issued
under ORS 390.610, 390.620 to 390.676, 390.690 and 390.705 to
390.770.
SECTION 547. ORS 476.710 is amended to read:
476.710. No person shall set or permit any fire on the Pacific
Ocean shore, declared to be a state recreation area under ORS
390.615, adjacent to any structure or any timber or forest area
except pursuant to rule, regulation or permit of or from the
{ - State Parks and Recreation Department - } { + Oregon
Department of Natural Resources + }.
SECTION 548. ORS 476.990 is amended to read:
476.990. (1) Violation of ORS 476.150 (2) is a misdemeanor.
All penalties, fees or forfeitures collected under the provisions
of this subsection, ORS 476.010 to 476.090, 476.155 to 476.170
and 476.210 to 476.270 shall be paid into the State Treasury.
(2) Violation of ORS 476.380 (1) is a misdemeanor.
(3) Violation of ORS 476.410 to 476.440 is punishable, upon
conviction, by a fine of not less than $25 nor more than $250, or
by imprisonment in the county jail for not less than 10 or more
than 60 days, or both. Justices of the peace and district judges
shall have concurrent jurisdiction with the circuit courts over
prosecutions for such violations.
(4) Violation of any provision of ORS 476.510 to 476.610 is a
misdemeanor.
(5) Subject to ORS 153.022, violation of ORS 476.710 or 476.715
or of any rule or regulation of the { - State Parks and
Recreation Department - } { + Oregon Department of Natural
Resources + } promulgated thereunder is punishable, upon
conviction, by a fine not exceeding $500 or imprisonment in the
county jail not exceeding six months, or both.
SECTION 549. ORS 565.021 is amended to read:
565.021. (1) The { - State Parks and Recreation Director - }
{ + Director of the Oregon Department of Natural Resources + }
shall appoint a State Fair Advisory Committee to provide advice
and assistance to the director on matters regarding the operation
of the Oregon State Fair.
(2) The advisory committee shall consist of seven members
appointed by the director for four-year terms. The director shall
appoint:
(a) A resident from each congressional district of Oregon. The
director shall seek to ensure that those persons reflect a
broad-based representation of the industrial, educational and
cultural interests active in state fair activities, such as
agricultural, stock raising, horticultural, mining, mechanical,
artistic and industrial pursuits.
(b) Two persons to represent county fair interests. The
director may give consideration to nominations suggested by the
County Fair Commission established under ORS 565.410.
(3) The members of the advisory committee serve at the pleasure
of the director. The director may fill a vacancy on the advisory
committee by appointing a person to fill the unexpired term.
(4) Each member of the advisory committee is entitled to
compensation and reimbursement of expenses, as provided in ORS
292.495, from moneys appropriated to the { - State Parks and
Recreation Department - } { + Oregon Department of Natural
Resources + } for that purpose.
(5) The advisory committee shall select one of its members as
chairperson and another as vice chairperson, for such terms and
with such duties and powers necessary for the performance of the
functions of those offices as the advisory committee determines
appropriate.
(6) The advisory committee shall meet at the call of the
director.
SECTION 550. ORS 565.030 is amended to read:
565.030. The State Fair Advisory Committee shall provide advice
and assistance to the { - State Parks and Recreation
Director - } { + Director of the Oregon Department of Natural
Resources + } on matters regarding the operation of the Oregon
State Fair and shall solicit and encourage support throughout the
state to improve the quality of and participation in the fair to
achieve the purposes and objectives of ORS 565.050.
SECTION 551. ORS 565.040 is amended to read:
565.040. There is established a state institution to be
designated and known as the Oregon State Fair, which shall be
administered and operated by the { - State Parks and Recreation
Department - } { + Oregon Department of Natural Resources + }.
SECTION 552. ORS 565.050 is amended to read:
565.050. The objects and purposes of the Oregon State Fair are
to disseminate knowledge concerning, and to encourage the growth
and prosperity of all agricultural, stock raising, horticultural,
mining, mechanical, artistic and industrial pursuits in this
state. To this end the { - State Parks and Recreation
Director - } { + Director of the Oregon Department of Natural
Resources + } shall operate the business and properties of the
Oregon State Fair as a year-round fair and exposition center,
display historical objects and do all things necessary or
expedient for the full utilization of the properties and
facilities of the fair. The director shall conduct an annual
state fair for a period of not more than 17 days' duration
beginning and ending on such dates as the director considers
appropriate.
SECTION 553. ORS 565.060 is amended to read:
565.060. In accordance with any applicable provision of ORS
chapter 183, the { - State Parks and Recreation Commission - }
{ + Oregon Natural Resources Commission + } may adopt rules to
carry out the provisions of this chapter.
SECTION 554. ORS 565.080 is amended to read:
565.080. (1) The { - State Parks and Recreation Director - }
{ + Director of the Oregon Department of Natural Resources + }
shall have care of the Oregon State Fair property and be
entrusted with the direction of its business and financial
affairs. The director shall prepare, adopt, publish and enforce
all necessary rules for the management of the Oregon State Fair,
its meetings and exhibitions and for the guidance of its officers
or employees.
(2) The director may appoint all necessary marshals to keep
order on the grounds and in the buildings of the Oregon State
Fair during all exhibitions. The marshals so appointed shall be
vested with the same authority for such purposes as executive
peace officers are vested by law.
(3) The director shall establish charges for entrance fees,
gate money, lease stalls, stands, parking space, buildings,
restaurant sites; conduct shows, exhibitions, races and all
manner of business notwithstanding the provisions of ORS 227.286
and do all other things the director considers proper in the
operation of a year-round fair and exposition center and the
annual state fair. The state is in no event liable for any
premium awarded or debt created by the director beyond the amount
annually appropriated therefor.
(4) The director may enter into sponsorship agreements for the
receipt of moneys, services, products or other items of value. A
sponsorship agreement entered into under this subsection is not
subject to ORS 279.835 to 279.855 or ORS chapter 279A or 279B.
SECTION 555. ORS 565.090 is amended to read:
565.090. (1) The Oregon State Fair shall be permanently located
on the present grounds now owned by the state and heretofore
devoted to Oregon State Fair purposes, located in the City of
Salem, in Marion County. Those grounds and such additional lands
as may hereafter be obtained by the { - State Parks and
Recreation Department - } { + Oregon Department of Natural
Resources + } for the purposes of the Oregon State Fair are
dedicated for the use of the Oregon State Fair and for other
departmental programs.
(2) The department may obtain by donation, exchange or purchase
such lands adjacent to the present grounds, including
improvements thereon, as it may deem necessary and advisable to
facilitate the use of such grounds and may construct, remodel and
repair buildings and facilities deemed by it necessary in the
operation of the Oregon State Fair and for other departmental
programs.
SECTION 556. ORS 565.095 is amended to read:
565.095. (1) In accordance with any applicable provisions of
ORS chapter 286A, the { - State Parks and Recreation Director,
with the approval of the State Parks and Recreation
Commission, - } { + Director of the Oregon Department of
Natural Resources + } may request the State Treasurer to issue
revenue bonds in an amount not to exceed $10 million.
(2) Moneys received from the issuance of revenue bonds may be
expended for land acquisition, capital construction and
improvements and for paying current operating and other expenses
of the Oregon State Fair.
(3) Revenue bonds issued pursuant to this section shall be
secured by revenues received by the director from activities
conducted at the Oregon State Fair, and shall not be a general
obligation of the { - State Parks and Recreation Department - }
{ + Oregon Department of Natural Resources + } or the State of
Oregon.
SECTION 557. ORS 565.103 is amended to read:
565.103. (1) Pursuant to ORS 286A.560 to 286A.585, lottery
bonds may be issued to fund projects for the improvement,
restoration, upgrading and preservation of systems, facilities
and equipment of the Oregon State Fair.
(2) The use of lottery bond proceeds is authorized based on the
following findings:
(a) The activities of the Oregon State Fair promote Oregon's
agricultural industry and its products;
(b) The promotion of agricultural products expands markets,
which in turn creates jobs and stimulates economic development of
the industry; and
(c) The Oregon State Fair draws patrons from throughout the
region and creates jobs and substantial economic activity for the
Salem and Keizer areas.
(3) The aggregate principal amount of lottery bonds issued
pursuant to this section may not exceed the sum of $20,167,661
and an additional amount estimated by the State Treasurer to be
necessary to pay bond-related costs. Lottery bonds issued
pursuant to this section shall be issued only at the request of
the { - State Parks and Recreation Director - } { + Director
of the Oregon Department of Natural Resources + }.
(4) The net proceeds of lottery bonds issued pursuant to this
section shall be deposited in the State Fair Capital Project
Fund, which is hereby established in the State Treasury separate
and distinct from the General Fund.
(5) The proceeds of lottery bonds issued pursuant to this
section shall be used only for the purposes set forth in
subsection (1) of this section and for bond-related costs.
SECTION 558. ORS 565.107 is amended to read:
565.107. (1) The Oregon State Fair Account is established as a
separate account within the { - State Parks and Recreation
Department Fund - } { + Oregon Natural Resources Fund + }.
Interest earned on moneys in the account shall be credited to the
account. The account shall consist of:
(a) Proceeds from the sale of revenue bonds authorized to be
issued by ORS 565.095.
(b) Moneys received by the { - State Parks and Recreation
Director - } { + Director of the Oregon Department of Natural
Resources + } from activities conducted at the Oregon State Fair.
(c) Moneys received by the director by appropriation, gift,
grant or other donation from any source or otherwise paid to the
director pursuant to law. Moneys received as a result of a gift,
grant or donation shall be separately accounted for within the
account and shall be available only for the purpose specified in
the gift, grant or donation or, if no purpose is specified, for
any purpose that the { - State Parks and Recreation
Commission - } { + Oregon Natural Resources Commission + }
determines is consistent with the intent of the donor or grantor.
(2) Interest earned on moneys held for debt service payments
and rebates and interest earned on the proceeds from the sale of
revenue bonds pursuant to ORS 565.095 shall be separately
accounted for within the account and shall be available only for
the purpose of retiring bond indebtedness.
(3) Interest earned on moneys received by the director as a
result of a gift, grant or donation shall be separately accounted
for within the account and shall be available only for the
purpose specified in the gift, grant or donation or, if no
purpose is specified, for any purpose that the commission
determines is consistent with the intent of the donor or grantor.
(4) Moneys in the account established by subsection (1) of this
section are { - appropriated continuously to the State Parks
and Recreation Department - } { + continuously appropriated to
the Oregon Department of Natural Resources + }. Subject to
subsection (2) of this section, the department may use the
account moneys for:
(a) The payment of operating and other expenses of the Oregon
State Fair.
(b) Land acquisition, capital construction and capital
improvements at the Oregon State Fair.
(c) The payment of principal and interest on all revenue bonds
issued pursuant to ORS 565.095.
(d) Any purpose designated by the donor or grantor of a gift,
grant or donation, or for any other purpose that the commission
determines is consistent with the intent of the donor or grantor.
SECTION 559. ORS 565.109 is amended to read:
565.109. The { - State Parks and Recreation Director - }
{ + Director of the Oregon Department of Natural Resources + }
may accept gifts, grants and donations of moneys, property or any
other valuable thing on behalf of the Oregon State Fair. Unless
use of moneys, property or valuable things received under this
section is limited by the donor or grantor, the moneys, property
or valuable thing may be used in any manner that the { - State
Parks and Recreation Commission - } { + Oregon Natural
Resources Commission + } determines to be consistent with the
intent of the donor or grantor.
SECTION 560. ORS 565.114 is amended to read:
565.114. The Legislative Assembly finds and declares that:
(1) The successful solicitation of gifts, grants and donations
for the benefit of the Oregon State Fair allows the operation,
improvement and maintenance of facilities or programs enjoyed by
the public. The receipt of gifts, grants and donations for the
benefit of the Oregon State Fair reduces the amount of public
moneys that must be spent for the operation, improvement and
maintenance of facilities or programs.
(2) The successful solicitation of gifts, grants and donations
by a nonprofit, tax exempt organization for the benefit of the
Oregon State Fair minimizes the cost to the state of obtaining
those gifts, grants and donations. Cooperation between the
{ - State Parks and Recreation Department - } { + Oregon
Department of Natural Resources + } and such an organization,
including the provision of tickets and other promotional items,
facilities, supplies, staff and services by the department for
use by such an organization in connection with fund raising
efforts, serves a public purpose by increasing the ability of the
organization to successfully solicit gifts, grants and donations
for the benefit of the Oregon State Fair.
SECTION 561. ORS 565.116 is amended to read:
565.116. (1) The { - State Parks and Recreation Director - }
{ + Director of the Oregon Department of Natural Resources + }
may cooperate with any nonprofit, tax exempt organization
designated by the director as an appropriate organization to
solicit gifts, grants and donations for the benefit of the Oregon
State Fair.
(2) The director may advise and receive advice from an
organization described in subsection (1) of this section. The
director may, if allowed by the charter and bylaws of the
organization, serve as a regular or nonvoting board member of the
organization. The director may not chair the board of directors,
vote for or appoint other board members, control the financial
affairs of the organization or oversee the day-to-day operation
of the organization.
(3) The director may provide tickets, promotional items and
facilities to the organization without charge for use in
increasing the ability of the organization to successfully
solicit gifts, grants and donations for the benefit of the Oregon
State Fair.
(4) The director may provide supplies, staff and services to
the organization at cost for use in increasing the ability of the
organization to successfully solicit gifts, grants and donations
for the benefit of the Oregon State Fair.
(5) The director shall submit an annual accounting report to an
appropriate committee of the Legislative Assembly designated by
the Speaker of the House of Representatives and the President of
the Senate. The report must contain a detailed description of all
tickets, promotional items, facilities, supplies, staff and
services provided under subsections (3) and (4) of this section,
the specific disposition or application thereof made by the
organization and any resulting benefit to the Oregon State Fair.
(6) The director may enter into an agreement for the donation
to the Oregon State Fair of goods, services and public
improvements by a nonprofit, tax exempt organization.
SECTION 562. ORS 565.120 is amended to read:
565.120. The { - State Parks and Recreation Director - }
{ + Director of the Oregon Department of Natural Resources + }
is authorized to issue a license permitting the holder of the
license to conduct any business therein named upon the grounds of
the Oregon State Fair. Issuance of licenses shall be in
accordance with the competitive bidding requirements of ORS
279.835 to 279.855 and ORS chapters 279A and 279B for the
awarding of public contracts, to the extent those procedures are
practicable. The funds arising therefrom shall become a part of
the Oregon State Fair Account.
SECTION 563. ORS 565.130 is amended to read:
565.130. (1) Licenses under ORS 565.120 may be issued
permitting any business to be conducted upon the grounds of the
Oregon State Fair { - which - } { + that + } under the laws
of this state may be conducted at any place within the state,
including the sale of malt, vinous or distilled liquor.
(2) Any business so licensed by the { - State Parks and
Recreation Director - } { + Director of the Oregon Department
of Natural Resources + } is not required to pay license to any
city, county or state, other than to the director as provided in
ORS 565.120, for conducting a business upon the grounds of the
Oregon State Fair. However, nothing in this section shall
interfere with the laws of this state requiring a license for the
operation of a restaurant or requiring a license to be obtained
from the Oregon Liquor Control Commission for the sale or
distribution of alcoholic liquors.
SECTION 564. ORS 565.140 is amended to read:
565.140. The buildings and facilities therein that are planned,
constructed, altered, furnished and equipped by the
{ - State Parks and Recreation Department - } { + Oregon
Department of Natural Resources + } at the state fairgrounds, as
authorized by chapter 442, Oregon Laws 1957, shall be used
primarily for the housing and dining of members of 4-H Clubs and
of Future Farmers of America and for exhibit and contest space
for nonlivestock exhibits of both groups. These buildings and
facilities therein shall be available for other groups only at
times other than during the state fair and as authorized by the
department.
SECTION 565. ORS 565.150 is amended to read:
565.150. (1) When construction of an armory containing an
auditorium is authorized under ORS 396.505 to 396.545 in Marion
County, if the { - State Parks and Recreation Department - }
{ + Oregon Department of Natural Resources + } and the General
Staff of the Oregon National Guard arrive at a mutually
satisfactory agreement for the use of the armory by the
department, the department may, notwithstanding the provisions of
ORS 565.090, permit such armory to be constructed on the grounds
of the Oregon State Fair and grant control over such armory and
grounds to the General Staff for the period that such armory and
grounds are used for military purposes. When such armory and
grounds are no longer used for military purposes, the control
over them shall revert to the department.
(2) For purposes of this section, 'control' does not include
the power to sell, lease, mortgage or in any other way encumber
an armory constructed under subsection (1) of this section.
SECTION 566. ORS 565.160 is amended to read:
565.160. (1) The { - State Parks and Recreation
Department - } { + Oregon Department of Natural Resources + }
shall plan, construct, alter, furnish and equip horse barn
facilities at the Oregon State Fair suitable for stabling horses.
These facilities shall also include rest rooms suitable for
public use. The department shall also plan, construct, alter,
furnish and equip storm sewers on the grounds of the Oregon State
Fair.
(2) Notwithstanding any other provision of law pertaining to
sale of public property, the State Treasurer, with the approval
of the investing agency, may sell any site or facility described
in subsection (1) of this section or interest therein so acquired
by offer for sale by sealed bid. However:
(a) Any or all bids may be rejected.
(b) The state has first option to purchase at the highest bid
accepted.
SECTION 567. ORS 565.170 is amended to read:
565.170. The { - State Parks and Recreation Department - }
{ + Oregon Department of Natural Resources + } shall plan,
construct, alter, furnish and equip on the grounds of the Oregon
State Fair a facility suitable for housing exhibits and providing
contest space for the homemaking arts and crafts.
SECTION 568. ORS 565.610 is amended to read:
565.610. (1) No person shall set up any shop, booth, wagon or
other vehicle for the sale of spirituous or other liquors,
cigars, provisions or other articles of traffic, or shall sell or
otherwise dispose of any liquors, cigars, goods, wares,
merchandise, meals, lunch or any article of traffic whatever on
the grounds of the Oregon State Fair, or on any grounds owned or
occupied by a county fair board or any county or district society
formed for the promotion and encouragement of agriculture, stock
growing or horticulture, or within one-half mile of such grounds,
without having paid the { - State Parks and Recreation
Department - } { + Oregon Department of Natural Resources + },
county fair board or such society the license for the privilege,
or obtained the written consent of the department or county fair
board or of the president and secretary of such society.
(2) Nothing in this section shall restrain any person except
during fairs or exhibitions or other public events or meetings on
the grounds of the Oregon State Fair or of any county fair board
or of such societies, and for two days prior and two days
subsequent thereto. This section does not extend to any person
regularly and continuously carrying on business within one-half
mile of the premises mentioned.
SECTION 569. ORS 565.620 is amended to read:
565.620. No person shall gain admission, or attempt to gain
admission, to the grounds of the Oregon State Fair or of a county
fair board or of any society mentioned in ORS 565.610 during
their annual fairs or exhibitions, or at any public events or
meetings on the grounds of the Oregon State Fair, county fair
board or societies on their grounds, or grounds occupied by them
or either of them, except through the special gates kept by the
{ - State Parks and Recreation Department - } { + Oregon
Department of Natural Resources + }, county fair boards or
societies for that purpose.
SECTION 570. ORS 565.630 is amended to read:
565.630. The { - State Parks and Recreation Director - }
{ + Director of the Oregon Department of Natural Resources + },
any county fair board and every society mentioned in ORS 565.610
may regulate its prices of admission, licenses and all matters
pertaining to the conduct of its annual fairs, exhibitions or
other public events or meetings. The penalty for violation of its
rules and regulations is as provided by ORS 565.990 (2).
SECTION 571. ORS 565.640 is amended to read:
565.640. The peace officers of the { - State Parks and
Recreation Department - } { + Oregon Department of Natural
Resources + }, county fair board or any of the societies
mentioned in ORS 565.610, during the continuance of each annual
fair or other public event or meeting, and for three days prior
and two days subsequent thereto, on the grounds of the Oregon
State Fair or on any grounds owned or occupied by a county fair
board or such society for fairs, exhibitions or other public
events or meetings, shall have all the authority of a deputy
sheriff and may make arrests for violations of the provisions of
ORS 565.610 to 565.650 or other laws of this state, or the rules
or regulations of the department, county fair board or such
society.
SECTION 572. ORS 802.125 is amended to read:
802.125. The Department of Transportation shall transfer to the
{ - State Parks and Recreation Department - } { + All-Terrain
Vehicle Account established under ORS 390.555 + } that portion of
the amount paid to the Department of Transportation as motor
vehicle fuel tax under ORS 319.020 and 319.530 that is determined
by the department to be tax on fuel used by Class I, Class II and
Class III all-terrain vehicles in off-highway operation and that
is not refunded. The Department of Transportation shall determine
the amount of moneys to be transferred under this section at
quarterly intervals.
SECTION 573. ORS 803.601 is amended to read:
803.601. Fees collected by the Department of Transportation for
recreational vehicle trip permits described in ORS 803.600 shall
be transferred to { - the State Parks and Recreation Department
Fund established by ORS 390.134 and - } { + the Oregon
Department of Natural Resources and deposited in the Oregon
Natural Resources Fund. Moneys transferred to the fund under this
section + } are continuously appropriated to the { - State
Parks and Recreation Department - } { + Oregon Department of
Natural Resources + } for the purposes specified in ORS 390.134.
SECTION 574. ORS 814.516 is amended to read:
814.516. The { - State Parks and Recreation Department - }
{ + Oregon Department of Natural Resources + } may restrict or
prohibit the operation of a motor assisted scooter on a bicycle
lane or bicycle path in a state park except that the department
may not restrict or prohibit the operation of a motor assisted
scooter on a bicycle lane or bicycle path in a state park if the
operator of the motor assisted scooter is disabled.
SECTION 575. ORS 821.170 is amended to read:
821.170. (1) A person 16 years of age or older commits the
offense of operation of a Class I all-terrain vehicle without
driving privileges if the person operates a Class I all-terrain
vehicle on public lands and the person does not hold a valid
Class I all-terrain vehicle operator permit issued under ORS
390.570.
(2) A child under 16 years of age commits the offense of
operation of a Class I all-terrain vehicle without driving
privileges if the child operates a Class I all-terrain vehicle on
public lands and the child does not meet all the following
conditions:
(a) The child must be accompanied by a person who is at least
18 years of age, holds a valid all-terrain vehicle operator
permit issued under ORS 390.570 or 390.575 and is able to provide
immediate assistance and direction to the child.
(b) The child must hold a valid Class I all-terrain vehicle
operator permit issued under ORS 390.570.
(c) The child must meet rider fit guidelines established by the
{ - State Parks and Recreation Department - } { + Oregon
Department of Natural Resources + } under ORS 390.585.
(3) This section does not apply if the all-terrain vehicle is:
(a) Used exclusively in farming, agricultural or forestry
operations or used by persons licensed under ORS chapter 571
exclusively for nursery or Christmas tree growing operations; and
(b) Being used on land owned or leased by the owner of the
vehicle.
(4) The offense described in this section, operation of Class I
all-terrain vehicle without driving privileges, is a Class C
traffic violation.
SECTION 575a. ORS 821.291 is amended to read:
821.291. (1) A person commits the offense of endangering a
Class I all-terrain vehicle operator if the person is the parent,
legal guardian or person with legal responsibility for the safety
and welfare of a child under 16 years of age and the child
operates a Class I all-terrain vehicle on public lands and:
(a) Does not have a Class I all-terrain vehicle operator permit
issued under ORS 390.570;
(b) Is not accompanied by a person who is at least 18 years of
age, holds a valid all-terrain vehicle operator permit issued
under ORS 390.570 or 390.575 and is able to provide immediate
assistance and direction to the child; and
(c) Is not in compliance with the rider fit guidelines
established by the { - Parks and Recreation Department - }
{ + Oregon Department of Natural Resources + } under ORS
390.585.
(2) This section does not apply if the all-terrain vehicle is:
(a) Used exclusively in farming, agricultural or forestry
operations or used by persons licensed under ORS chapter 571
exclusively for nursery or Christmas tree growing operations; and
(b) Being used on land owned or leased by the owner of the
vehicle.
(3) The offense described in this section, endangering a Class
I all-terrain vehicle operator, is a Class C traffic violation.
SECTION 576. ORS 835.200 is amended to read:
835.200. (1) The State Aviation Board, pursuant to ORS 835.035
and utilizing the definitions contained in ORS 830.005:
(a) Shall adopt rules governing seaplane safety and operations
on state waters, as defined in ORS 830.005, that shall be
applicable to all seaplanes except when inconsistent with any
applicable laws or regulations of an agency of the United States.
(b) May adopt rules governing seaplane safety and operations on
waters of this state, as defined in ORS 830.005, that shall be
applicable to all seaplanes except when inconsistent with any
applicable laws or regulations of an agency of the United States.
(2) The State Aviation Board shall adopt the rules in
subsection (1) of this section in consultation with the State
Marine Board and the { - State Parks and Recreation
Department - } { + Oregon Department of Natural Resources + }.
(3) The rules in subsection (1) of this section shall include
identification of zones and bodies of water on which seaplanes
may not land, take off or operate.
(4) As used in this section and ORS 835.210, 'seaplane ' means
an aircraft equipped to land on water.
{ +
DEPARTMENT OF STATE LANDS + }
{ +
(Abolishment and Transfer of + }
{ +
Duties, Functions and Powers) + }
SECTION 577. { + (1) The Department of State Lands is
abolished. On the operative date of this section, the tenure of
office of the Director of the Department of State Lands ceases.
(2) All the duties, functions and powers of the Department of
State Lands are imposed upon, transferred to and vested in the
Oregon Department of Natural Resources. + }
{ +
(Transfer of Records, Property and Employees) + }
SECTION 578. { + (1) The Director of the Department of State
Lands shall:
(a) Deliver to the Oregon Department of Natural Resources all
records and property within the jurisdiction of the director that
relate to the duties, functions and powers transferred by section
577 of this 2011 Act; and
(b) Transfer to the Oregon Department of Natural Resources
those employees engaged primarily in the exercise of the duties,
functions and powers transferred by section 577 of this 2011 Act.
(2) The Director of the Oregon Department of Natural Resources
shall take possession of the records and property, and shall take
charge of the employees and employ them in the exercise of the
duties, functions and powers transferred by section 577 of this
2011 Act, without reduction of compensation but subject to change
or termination of employment or compensation as provided by law.
(3) The Governor shall resolve any dispute between the
Department of State Lands and the Oregon Department of Natural
Resources relating to transfers of records, property and
employees under this section, and the Governor's decision is
final. + }
{ +
(Transfer of Unexpended Revenues) + }
SECTION 579. { + (1) The unexpended balances of amounts
authorized to be expended by the Department of State Lands for
the biennium beginning July 1, 2011, from revenues dedicated,
continuously appropriated, appropriated or otherwise made
available for the purpose of administering and enforcing the
duties, functions and powers transferred by section 577 of this
2011 Act are transferred to and are available for expenditure by
the Oregon Department of Natural Resources for the biennium
beginning July 1, 2011, for the purpose of administering and
enforcing the duties, functions and powers transferred by section
577 of this 2011 Act.
(2) The expenditure classifications, if any, established by
Acts authorizing or limiting expenditures by the Department of
State Lands remain applicable to expenditures by the Oregon
Department of Natural Resources under this section. + }
{ +
(Action, Proceeding and Prosecution) + }
SECTION 580. { + The transfer of duties, functions and powers
to the Oregon Department of Natural Resources by section 577 of
this 2011 Act does not affect any action, proceeding or
prosecution involving or with respect to such duties, functions
and powers begun before and pending at the time of the transfer,
except that the Oregon Department of Natural Resources is
substituted for the Department of State Lands in the action,
proceeding or prosecution. + }
{ +
(Liability, Duty and Obligation) + }
SECTION 581. { + (1) Nothing in sections 577 to 583 of this
2011 Act, the amendments to statutes by sections 28 to 411, 422
to 576, 585 to 901, 912 to 1090, 1099 to 1112, 1122 to 1257, 1269
to 1749k, 1758 to 1780, 1791 to 2081 and 2091 to 2160 of this
2011 Act or the repeal of ORS 273.071, 273.161, 273.165, 273.171,
273.175, 273.183 or 517.735 by section 2161 of this 2011 Act
relieves a person of a liability, duty or obligation accruing
under or with respect to the duties, functions and powers
transferred by section 577 of this 2011 Act. The Oregon
Department of Natural Resources may undertake the collection or
enforcement of any such liability, duty or obligation.
(2) The rights and obligations of the Department of State Lands
legally incurred under contracts, leases and business
transactions executed, entered into or begun before the operative
date of section 577 of this 2011 Act are transferred to the
Oregon Department of Natural Resources. For the purpose of
succession to these rights and obligations, the Oregon Department
of Natural Resources is a continuation of the Department of State
Lands and not a new authority. + }
{ +
(Rules) + }
SECTION 582. { + Notwithstanding the transfer of duties,
functions and powers by section 577 of this 2011 Act, the rules
of the Department of State Lands in effect on the operative date
of section 577 of this 2011 Act continue in effect until
superseded or repealed by rules of the Oregon Department of
Natural Resources. References in rules of the Department of State
Lands to the Department of State Lands, or to an officer or
employee of the Department of State Lands, are considered to be
references to the Oregon Department of Natural Resources or to an
officer or employee of the Oregon Department of Natural
Resources. + }
{ +
(References) + }
SECTION 583. { + Whenever, in any uncodified law or resolution
of the Legislative Assembly or in any rule, document, record or
proceeding authorized by the Legislative Assembly, reference is
made to the Department of State Lands, or to an officer or
employee of the Department of State Lands, the reference is
considered to be a reference to the Oregon Department of Natural
Resources or to an officer or employee of the Oregon Department
of Natural Resources. + }
{ +
(Agency Name Change) + }
SECTION 584. { + (1) For the purpose of harmonizing and
clarifying statutory law, the Legislative Counsel may substitute
for words designating the 'Department of State Lands,' wherever
they occur in statutory law, words designating the 'Oregon
Department of Natural Resources. '
(2) For the purpose of harmonizing and clarifying statutory
law, the Legislative Counsel may substitute for words designating
the 'Director of the Department of State Lands,' wherever they
occur in statutory law, words designating the 'Director of the
Oregon Department of Natural Resources.' + }
{ +
(Conforming Amendments) + }
SECTION 585. ORS 35.550 is amended to read:
35.550. As used in ORS 35.550 to 35.575:
(1) 'Property' means real property, water, watercourses, and
water and riparian rights, or any right or interest therein.
(2) 'Board' means:
(a) The state board of commissioners, trustees, or other state
board, having direction of the state department or institution
for which the property is desired; or
(b) The { - Department of State Lands - } { + Oregon
Department of Natural Resources + }, if there is no other state
board for the department or institution for which the property is
sought to be acquired.
SECTION 586. ORS 60.674 is amended to read:
60.674. Assets of a dissolved corporation that should be
distributed to a creditor, claimant or shareholder of the
corporation who cannot be found shall be reduced to cash and,
within one year after the final distribution in such liquidation
or winding up is payable, deposited { - with the Department of
State Lands - } { + in the Common School Fund + }. The receiver
or other liquidating agent shall prepare in duplicate and under
oath a statement containing the names and last-known addresses of
the persons entitled to such funds. One of the statements shall
be filed with the { - Department of State Lands with the
cash - } { + Oregon Department of Natural Resources + } and
another shall be delivered to the office for filing. The owner,
heirs or personal representatives of the owner, may file a claim
with the department
{ - of State Lands - } in the manner provided by ORS 98.392
and 98.396.
SECTION 587. ORS 62.720 is amended to read:
62.720. (1) All intangible personal property distributable in
the course of a voluntary or involuntary dissolution of a
cooperative that is unclaimed by the owner within two years after
the date for final distribution is presumed abandoned. Such
property shall be subject to the provisions of ORS 98.302 to
98.436 and 98.992, except that with respect to agricultural
cooperatives, the report of unclaimed property shall be filed
with the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } as set forth in ORS 98.352. A
copy of the report shall also be filed with the State Board of
Higher Education.
(2) All unclaimed property specified in the report required by
ORS 98.352 shall be delivered within the time specified in ORS
98.362 to the department { + , + } { - of State Lands - }
which shall assume custody and shall be responsible for the
safekeeping thereof. The department shall reconcile the report to
the delivered funds, deduct the costs as provided for in
subsection (3) of this section, and forward the funds to the
State Board of Higher Education within 14 working days of receipt
of the funds. Any person who pays or delivers unclaimed property
to the department
{ - of State Lands - } under this section is relieved of all
liability to the extent of the value of the property so paid or
delivered for any claim which then exists or which thereafter may
arise or be made in respect to the property.
(3) All funds received under this section shall be used for the
benefit of Oregon State University in such programs related to
agricultural research as the university may determine except for:
(a) The payment of claims which may be made pursuant to this
section; and
(b) The payment of expenses of mailing and publication in
connection with any unclaimed property, reasonable service
charges and expenses of the department { - of State Lands - }
in connection with claims made pursuant to ORS 98.392 to 98.402.
(4) The provisions of ORS 98.392 to 98.402 are applicable to
claims against unclaimed property delivered to the State Board of
Higher Education pursuant to this section. The State Board of
Higher Education shall pay such claims from funds delivered to it
pursuant to this section within 30 days of receipt of a verified
copy of a finding and decision of the department { - of State
Lands - } made pursuant to ORS 98.396 or a certified copy of a
judgment made pursuant to ORS 98.402.
(5) As used in this section, an agricultural cooperative is any
cooperative in which farmers act together in producing,
processing, preparing for market, handling or marketing the
agricultural products of such farmers, and any cooperative in
which farmers act together in purchasing, testing, grading,
processing, distributing and furnishing farm supplies or farm
business services.
(6) The provisions of this section are applicable with respect
to the voluntary or involuntary dissolution of any cooperative,
which dissolution commenced on or after January 1, 1970.
SECTION 588. ORS 63.674 is amended to read:
63.674. Assets of a dissolved limited liability company that
should be distributed to a creditor, claimant or member of the
limited liability company who cannot be found or who is not
competent to receive them shall be reduced to cash and, within
six months after the final distribution of such liquidation or
winding up is payable, deposited { - with the Department of
State Lands - } { + in the Common School Fund + }. The receiver
or other liquidating agent shall prepare in duplicate and under
oath a statement containing the names and last-known addresses of
the persons entitled to such funds. One of the statements shall
be filed with the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } and another shall
be delivered to the office for filing. The funds shall then
escheat to and become the property of the State of Oregon
{ - and shall become a part of the Common School Fund of the
state - } . The owners, heirs or personal representatives of the
owner may reclaim any funds so deposited in the manner provided
for estates which have escheated to the state.
SECTION 589. ORS 65.674 is amended to read:
65.674. Assets of a dissolved corporation { - which - }
{ + that + } should be transferred to a creditor, claimant or
member of the corporation who cannot be found or who is not
competent to receive
{ - them - } { + the assets + } shall be reduced to cash
unless { - they - } { + the assets + } are subject to known
trust restrictions and deposited { - with the Department of
State Lands for safekeeping - } { + in the Common School
Fund + }. However, in the discretion of the Director of the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + }, property of unusual historic or aesthetic
interest may be received and held in kind. The receiver or other
liquidating agent shall prepare in duplicate and under oath a
statement containing the names and last-known addresses of the
persons entitled to such funds. One of the statements shall be
filed with the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } and another shall be
delivered to the Secretary of State for filing. The funds shall
then escheat to and become the property of the State of Oregon
{ - and shall become part of the Common School Fund of the
state - } . The owner, heirs or personal representatives of the
owner, may reclaim any funds so deposited in the manner provided
for estates which have escheated to the state.
SECTION 590. ORS 90.425 is amended to read:
90.425. (1) As used in this section:
(a) 'Current market value' means the amount in cash, as
determined by the county assessor, that could reasonably be
expected to be paid for a manufactured dwelling or floating home
by an informed buyer to an informed seller, each acting without
compulsion in an arm's-length transaction occurring on the
assessment date for the tax year or on the date of a subsequent
reappraisal by the county assessor.
(b) 'Dispose of the personal property' means that, if
reasonably appropriate, the landlord may throw away the property
or may give it without consideration to a nonprofit organization
or to a person unrelated to the landlord. The landlord may not
retain the property for personal use or benefit.
(c) 'Goods' includes those goods left inside a recreational
vehicle, manufactured dwelling or floating home or left upon the
rental space outside a recreational vehicle, manufactured
dwelling or floating home, whether the recreational vehicle,
dwelling or home is located inside or outside of a facility.
(d) 'Lienholder' means any lienholder of an abandoned
recreational vehicle, manufactured dwelling or floating home, if
the lien is of record or the lienholder is actually known to the
landlord.
(e) 'Of record' means:
(A) For a recreational vehicle that is not a manufactured
structure as defined in ORS 446.561, that a security interest has
been properly recorded with the Department of Transportation
pursuant to ORS 802.200 (1)(a)(A) and 803.097.
(B) For a manufactured dwelling or recreational vehicle that is
a manufactured structure as defined in ORS 446.561, that a
security interest has been properly recorded for the manufactured
dwelling or recreational vehicle in the records of the Department
of Consumer and Business Services pursuant to ORS 446.611 or on a
certificate of title issued by the Department of Transportation
prior to May 1, 2005.
(C) For a floating home, that a security interest has been
properly recorded with the State Marine Board pursuant to ORS
830.740 to 830.755 for a home registered and titled with the
board pursuant to ORS 830.715.
(f) 'Owner' means any owner of an abandoned recreational
vehicle, manufactured dwelling or floating home, if different
from the tenant and either of record or actually known to the
landlord.
(g) 'Personal property' means goods, vehicles and recreational
vehicles and includes manufactured dwellings and floating homes
not located in a facility. 'Personal property ' does not include
manufactured dwellings and floating homes located in a facility
and therefore subject to being stored, sold or disposed of as
provided under ORS 90.675.
(2) A landlord may not store, sell or dispose of abandoned
personal property except as provided by this section. This
section governs the rights and obligations of landlords, tenants
and any lienholders or owners in any personal property abandoned
or left upon the premises by the tenant or any lienholder or
owner in the following circumstances:
(a) The tenancy has ended by termination or expiration of a
rental agreement or by relinquishment or abandonment of the
premises and the landlord reasonably believes under all the
circumstances that the tenant has left the personal property upon
the premises with no intention of asserting any further claim to
the premises or to the personal property;
(b) The tenant has been absent from the premises continuously
for seven days after termination of a tenancy by a court order
that has not been executed; or
(c) The landlord receives possession of the premises from the
sheriff following restitution pursuant to ORS 105.161.
(3) Prior to selling or disposing of the tenant's personal
property under this section, the landlord must give a written
notice to the tenant that must be:
(a) Personally delivered to the tenant; or
(b) Sent by first class mail addressed and mailed to the tenant
at:
(A) The premises;
(B) Any post-office box held by the tenant and actually known
to the landlord; and
(C) The most recent forwarding address if provided by the
tenant or actually known to the landlord.
(4)(a) In addition to the notice required by subsection (3) of
this section, in the case of an abandoned recreational vehicle,
manufactured dwelling or floating home, a landlord shall also
give a copy of the notice described in subsection (3) of this
section to:
(A) Any lienholder of the recreational vehicle, manufactured
dwelling or floating home;
(B) Any owner of the recreational vehicle, manufactured
dwelling or floating home;
(C) The tax collector of the county where the manufactured
dwelling or floating home is located; and
(D) The assessor of the county where the manufactured dwelling
or floating home is located.
(b) The landlord shall give the notice copy required by this
subsection by personal delivery or first class mail, except that
for any lienholder, mail service must be both by first class mail
and by certified mail with return receipt requested.
(c) A notice to lienholders under paragraph (a)(A) of this
subsection must be sent to each lienholder at each address:
(A) Actually known to the landlord;
(B) Of record; and
(C) Provided to the landlord by the lienholder in a written
notice that identifies the personal property subject to the lien
and that was sent to the landlord by certified mail with return
receipt requested within the preceding five years. The notice
must identify the personal property by describing the physical
address of the property.
(5) The notice required under subsection (3) of this section
must state that:
(a) The personal property left upon the premises is considered
abandoned;
(b) The tenant or any lienholder or owner must contact the
landlord by a specified date, as provided in subsection (6) of
this section, to arrange for the removal of the abandoned
personal property;
(c) The personal property is stored at a place of safekeeping,
except that if the property includes a manufactured dwelling or
floating home, the dwelling or home must be stored on the rented
space;
(d) The tenant or any lienholder or owner, except as provided
by subsection (18) of this section, may arrange for removal of
the personal property by contacting the landlord at a described
telephone number or address on or before the specified date;
(e) The landlord shall make the personal property available for
removal by the tenant or any lienholder or owner, except as
provided by subsection (18) of this section, by appointment at
reasonable times;
(f) If the personal property is considered to be abandoned
pursuant to subsection (2)(a) or (b) of this section, the
landlord may require payment of removal and storage charges, as
provided by subsection (7)(d) of this section, prior to releasing
the personal property to the tenant or any lienholder or owner;
(g) If the personal property is considered to be abandoned
pursuant to subsection (2)(c) of this section, the landlord may
not require payment of storage charges prior to releasing the
personal property;
(h) If the tenant or any lienholder or owner fails to contact
the landlord by the specified date, or after that contact, fails
to remove the personal property within 30 days for recreational
vehicles, manufactured dwellings and floating homes or 15 days
for all other personal property, the landlord may sell or dispose
of the personal property. If the landlord reasonably believes
that the personal property will be eligible for disposal pursuant
to subsection (10)(b) of this section and the landlord intends to
dispose of the property if the property is not claimed, the
notice shall state that belief and intent; and
(i) If the personal property includes a recreational vehicle,
manufactured dwelling or floating home and if applicable, there
is a lienholder or owner that has a right to claim the
recreational vehicle, dwelling or home, except as provided by
subsection (18) of this section.
(6) For purposes of subsection (5) of this section, the
specified date by which a tenant, lienholder or owner must
contact a landlord to arrange for the disposition of abandoned
personal property is:
(a) For abandoned recreational vehicles, manufactured dwellings
or floating homes, not less than 45 days after personal delivery
or mailing of the notice; or
(b) For all other abandoned personal property, not less than
five days after personal delivery or eight days after mailing of
the notice.
(7) After notifying the tenant as required by subsection (3) of
this section, the landlord:
(a) Shall store any abandoned manufactured dwelling or floating
home on the rented space and shall exercise reasonable care for
the dwelling or home;
(b) Shall store all other abandoned personal property of the
tenant, including goods left inside a recreational vehicle,
manufactured dwelling or floating home or left upon the rented
space outside a recreational vehicle, dwelling or home, in a
place of safekeeping and shall exercise reasonable care for the
personal property, except that the landlord may:
(A) Promptly dispose of rotting food; and
(B) Allow an animal control agency to remove any abandoned pets
or livestock. If an animal control agency will not remove the
abandoned pets or livestock, the landlord shall exercise
reasonable care for the animals given all the circumstances,
including the type and condition of the animals, and may give the
animals to an agency that is willing and able to care for the
animals, such as a humane society or similar organization;
(c) Except for manufactured dwellings and floating homes, may
store the abandoned personal property at the dwelling unit, move
and store it elsewhere on the premises or move and store it at a
commercial storage company or other place of safekeeping; and
(d) Is entitled to reasonable or actual storage charges and
costs incidental to storage or disposal, including any cost of
removal to a place of storage. In the case of an abandoned
manufactured dwelling or floating home, the storage charge may be
no greater than the monthly space rent last payable by the
tenant.
(8) If a tenant, lienholder or owner, upon the receipt of the
notice provided by subsection (3) or (4) of this section or
otherwise, responds by actual notice to the landlord on or before
the specified date in the landlord's notice that the tenant,
lienholder or owner intends to remove the personal property from
the premises or from the place of safekeeping, the landlord must
make that personal property available for removal by the tenant,
lienholder or owner by appointment at reasonable times during the
15 days or, in the case of a recreational vehicle, manufactured
dwelling or floating home, 30 days following the date of the
response, subject to subsection (18) of this section. If the
personal property is considered to be abandoned pursuant to
subsection (2)(a) or (b) of this section, but not pursuant to
subsection (2)(c) of this section, the landlord may require
payment of removal and storage charges, as provided in subsection
(7)(d) of this section, prior to allowing the tenant, lienholder
or owner to remove the personal property. Acceptance by a
landlord of such payment does not operate to create or reinstate
a tenancy or create a waiver pursuant to ORS 90.412 or 90.417.
(9) Except as provided in subsections (18) to (20) of this
section, if the tenant, lienholder or owner of a recreational
vehicle, manufactured dwelling or floating home does not respond
within the time provided by the landlord's notice, or the tenant,
lienholder or owner does not remove the personal property within
the time required by subsection (8) of this section or by any
date agreed to with the landlord, whichever is later, the
tenant's, lienholder's or owner's personal property is
conclusively presumed to be abandoned. The tenant and any
lienholder or owner that have been given notice pursuant to
subsection (3) or (4) of this section shall, except with regard
to the distribution of sale proceeds pursuant to subsection (13)
of this section, have no further right, title or interest to the
personal property and may not claim or sell the property.
(10) If the personal property is presumed to be abandoned under
subsection (9) of this section, the landlord then may:
(a) Sell the personal property at a public or private sale,
provided that prior to the sale of a recreational vehicle,
manufactured dwelling or floating home:
(A) The landlord may seek to transfer ownership of record of
the personal property by complying with the requirements of the
appropriate state agency; and
(B) The landlord shall:
(i) Place a notice in a newspaper of general circulation in the
county in which the recreational vehicle, manufactured dwelling
or floating home is located. The notice shall state:
(I) That the recreational vehicle, manufactured dwelling or
floating home is abandoned;
(II) The tenant's and owner's name, if of record or actually
known to the landlord;
(III) The address and any space number where the recreational
vehicle, manufactured dwelling or floating home is located, and
any plate, registration or other identification number for a
recreational vehicle or floating home noted on the certificate of
title, if actually known to the landlord;
(IV) Whether the sale is by private bidding or public auction;
(V) Whether the landlord is accepting sealed bids and, if so,
the last date on which bids will be accepted; and
(VI) The name and telephone number of the person to contact to
inspect the recreational vehicle, manufactured dwelling or
floating home;
(ii) At a reasonable time prior to the sale, give a copy of the
notice required by sub-subparagraph (i) of this subparagraph to
the tenant and to any lienholder and owner, by personal delivery
or first class mail, except that for any lienholder, mail service
must be by first class mail with certificate of mailing;
(iii) Obtain an affidavit of publication from the newspaper to
show that the notice required under sub-subparagraph (i) of this
subparagraph ran in the newspaper at least one day in each of two
consecutive weeks prior to the date scheduled for the sale or the
last date bids will be accepted; and
(iv) Obtain written proof from the county that all property
taxes and assessments on the manufactured dwelling or floating
home have been paid or, if not paid, that the county has
authorized the sale, with the sale proceeds to be distributed
pursuant to subsection (13) of this section;
(b) Destroy or otherwise dispose of the personal property if
the landlord determines that:
(A) For a manufactured dwelling or floating home, the current
market value of the property is $8,000 or less as determined by
the county assessor; or
(B) For all other personal property, the reasonable current
fair market value is $500 or less or so low that the cost of
storage and conducting a public sale probably exceeds the amount
that would be realized from the sale; or
(c) Consistent with paragraphs (a) and (b) of this subsection,
sell certain items and destroy or otherwise dispose of the
remaining personal property.
(11)(a) A public or private sale authorized by this section
must:
(A) For a recreational vehicle, manufactured dwelling or
floating home, be conducted consistent with the terms listed in
subsection (10)(a)(B)(i) of this section. Every aspect of the
sale including the method, manner, time, place and terms must be
commercially reasonable; or
(B) For all other personal property, be conducted under the
provisions of ORS 79.0610.
(b) If there is no buyer at a sale of a manufactured dwelling
or floating home, the personal property is considered to be worth
$8,000 or less, regardless of current market value, and the
landlord shall destroy or otherwise dispose of the personal
property.
(12) Notwithstanding ORS 446.155 (1) and (2), unless a landlord
intentionally misrepresents the condition of a manufactured
dwelling or floating home, the landlord is not liable for the
condition of the dwelling or home to:
(a) A buyer of the dwelling or home at a sale pursuant to
subsection (10)(a) of this section, with or without
consideration; or
(b) A person or nonprofit organization to whom the landlord
gives the dwelling or home pursuant to subsection (1)(b), (10)(b)
or (11)(b) of this section.
(13)(a) The landlord may deduct from the proceeds of the sale:
(A) The reasonable or actual cost of notice, storage and sale;
and
(B) Unpaid rent.
(b) If the sale was of a manufactured dwelling or floating
home, after deducting the amounts listed in paragraph (a) of this
subsection, the landlord shall remit the remaining proceeds, if
any, to the county tax collector to the extent of any unpaid
property taxes and assessments owed on the dwelling or home.
(c) If the sale was of a recreational vehicle, manufactured
dwelling or floating home, after deducting the amounts listed in
paragraphs (a) and (b) of this subsection, if applicable, the
landlord shall remit the remaining proceeds, if any, to any
lienholder to the extent of any unpaid balance owed on the lien
on the recreational vehicle, dwelling or home.
(d) After deducting the amounts listed in paragraphs (a), (b)
and (c) of this subsection, if applicable, the landlord shall
remit to the tenant or owner the remaining proceeds, if any,
together with an itemized accounting.
(e) If the tenant or owner cannot after due diligence be found,
the landlord shall deposit the remaining proceeds with the county
treasurer of the county in which the sale occurred. If not
claimed within three years, the deposited proceeds revert to the
general fund of the county and are available for general
purposes.
(14) The county tax collector shall cancel all unpaid property
taxes and assessments owed on a manufactured dwelling or floating
home, as provided under ORS 311.790, only under one of the
following circumstances:
(a) The landlord disposes of the manufactured dwelling or
floating home after a determination described in subsection
(10)(b) of this section.
(b) There is no buyer of the manufactured dwelling or floating
home at a sale described under subsection (11) of this section.
(c)(A) There is a buyer of the manufactured dwelling or
floating home at a sale described under subsection (11) of this
section;
(B) The current market value of the manufactured dwelling or
floating home is $8,000 or less; and
(C) The proceeds of the sale are insufficient to satisfy the
unpaid property taxes and assessments owed on the dwelling or
home after distribution of the proceeds pursuant to subsection
(13) of this section.
(d)(A) The landlord buys the manufactured dwelling or floating
home at a sale described under subsection (11) of this section;
(B) The current market value of the manufactured dwelling or
floating home is more than $8,000;
(C) The proceeds of the sale are insufficient to satisfy the
unpaid property taxes and assessments owed on the manufactured
dwelling or floating home after distribution of the proceeds
pursuant to subsection (13) of this section; and
(D) The landlord disposes of the manufactured dwelling or
floating home.
(15) The landlord is not responsible for any loss to the
tenant, lienholder or owner resulting from storage of personal
property in compliance with this section unless the loss was
caused by the landlord's deliberate or negligent act. In the
event of a deliberate and malicious violation, the landlord is
liable for twice the actual damages sustained by the tenant,
lienholder or owner.
(16) Complete compliance in good faith with this section shall
constitute a complete defense in any action brought by a tenant,
lienholder or owner against a landlord for loss or damage to such
personal property disposed of pursuant to this section.
(17) If a landlord does not comply with this section:
(a) The tenant is relieved of any liability for damage to the
premises caused by conduct that was not deliberate, intentional
or grossly negligent and for unpaid rent and may recover from the
landlord up to twice the actual damages sustained by the tenant;
(b) A lienholder or owner aggrieved by the noncompliance may
recover from the landlord the actual damages sustained by the
lienholder or owner. ORS 90.255 does not authorize an award of
attorney fees to the prevailing party in any action arising under
this paragraph; and
(c) A county tax collector aggrieved by the noncompliance may
recover from the landlord the actual damages sustained by the tax
collector, if the noncompliance is part of an effort by the
landlord to defraud the tax collector. ORS 90.255 does not
authorize an award of attorney fees to the prevailing party in
any action arising under this paragraph.
(18) In the case of an abandoned recreational vehicle,
manufactured dwelling or floating home, the provisions of this
section regarding the rights and responsibilities of a tenant to
the abandoned vehicle, dwelling or home also apply to any
lienholder except that the lienholder may not sell or remove the
vehicle, dwelling or home unless:
(a) The lienholder has foreclosed its lien on the recreational
vehicle, manufactured dwelling or floating home;
(b) The tenant or a personal representative or designated
person described in subsection (20) of this section has waived
all rights under this section pursuant to subsection (26) of this
section; or
(c) The notice and response periods provided by subsections (6)
and (8) of this section have expired.
(19)(a) In the case of an abandoned manufactured dwelling or
floating home but not including a dwelling or home abandoned
following a termination pursuant to ORS 90.429 and except as
provided by subsection (20)(d) and (e) of this section, if a
lienholder makes a timely response to a notice of abandoned
personal property pursuant to subsections (6) and (8) of this
section and so requests, a landlord shall enter into a written
storage agreement with the lienholder providing that the dwelling
or home may not be sold or disposed of by the landlord for up to
12 months. A storage agreement entitles the lienholder to store
the personal property on the previously rented space during the
term of the agreement, but does not entitle anyone to occupy the
personal property.
(b) The lienholder's right to a storage agreement arises upon
the failure of the tenant, owner or, in the case of a deceased
tenant, the personal representative, designated person, heir or
devisee to remove or sell the dwelling or home within the
allotted time.
(c) To exercise the right to a storage agreement under this
subsection, in addition to contacting the landlord with a timely
response as described in paragraph (a) of this subsection, the
lienholder must enter into the proposed storage agreement within
60 days after the landlord gives a copy of the agreement to the
lienholder. The landlord shall give a copy of the proposed
storage agreement to the lienholder in the same manner as
provided by subsection (4)(b) of this section. The landlord may
include a copy of the proposed storage agreement with the notice
of abandoned property required by subsection (4) of this section.
A lienholder enters into a storage agreement by signing a copy of
the agreement provided by the landlord and personally delivering
or mailing the signed copy to the landlord within the 60-day
period.
(d) The storage agreement may require, in addition to other
provisions agreed to by the landlord and the lienholder, that:
(A) The lienholder make timely periodic payment of all storage
charges, as described in subsection (7)(d) of this section,
accruing from the commencement of the 45-day period described in
subsection (6) of this section. A storage charge may include a
utility or service charge, as described in ORS 90.532, if limited
to charges for electricity, water, sewer service and natural gas
and if incidental to the storage of personal property. A storage
charge may not be due more frequently than monthly;
(B) The lienholder pay a late charge or fee for failure to pay
a storage charge by the date required in the agreement, if the
amount of the late charge is no greater than for late charges
described in the rental agreement between the landlord and the
tenant; and
(C) The lienholder maintain the personal property and the space
on which the personal property is stored in a manner consistent
with the rights and obligations described in the rental agreement
between the landlord and the tenant.
(e) During the term of an agreement described under this
subsection, the lienholder has the right to remove or sell the
property, subject to the provisions of the lien. Selling the
property includes a sale to a purchaser who wishes to leave the
dwelling or home on the rented space and become a tenant, subject
to any conditions previously agreed to by the landlord and tenant
regarding the landlord's approval of a purchaser or, if there was
no such agreement, any reasonable conditions by the landlord
regarding approval of any purchaser who wishes to leave the
dwelling or home on the rented space and become a tenant. The
landlord also may condition approval for occupancy of any
purchaser of the property upon payment of all unpaid storage
charges and maintenance costs.
(f)(A) If the lienholder violates the storage agreement, the
landlord may terminate the agreement by giving at least 90 days'
written notice to the lienholder stating facts sufficient to
notify the lienholder of the reason for the termination. Unless
the lienholder corrects the violation within the notice period,
the agreement terminates as provided and the landlord may sell or
dispose of the dwelling or home without further notice to the
lienholder.
(B) After a landlord gives a termination notice pursuant to
subparagraph (A) of this paragraph for failure of the lienholder
to pay a storage charge and the lienholder corrects the
violation, if the lienholder again violates the storage agreement
by failing to pay a subsequent storage charge, the landlord may
terminate the agreement by giving at least 30 days' written
notice to the lienholder stating facts sufficient to notify the
lienholder of the reason for termination. Unless the lienholder
corrects the violation within the notice period, the agreement
terminates as provided and the landlord may sell or dispose of
the property without further notice to the lienholder.
(C) A lienholder may terminate a storage agreement at any time
upon at least 14 days' written notice to the landlord and may
remove the property from the rented space if the lienholder has
paid all storage charges and other charges as provided in the
agreement.
(g) Upon the failure of a lienholder to enter into a storage
agreement as provided by this subsection or upon termination of
an agreement, unless the parties otherwise agree or the
lienholder has sold or removed the manufactured dwelling or
floating home, the landlord may sell or dispose of the property
pursuant to this section without further notice to the
lienholder.
(20) If the personal property is a manufactured dwelling or
floating home and is considered abandoned as a result of the
death of a tenant who was the only tenant and who owned the
dwelling or home, this section applies, except as follows:
(a) The following persons have the same rights and
responsibilities regarding the abandoned dwelling or home as a
tenant:
(A) Any personal representative named in a will or appointed by
a court to act for the deceased tenant.
(B) Any person designated in writing by the tenant to be
contacted by the landlord in the event of the tenant's death.
(b) The notice required by subsection (3) of this section must
be:
(A) Sent by first class mail to the deceased tenant at the
premises; and
(B) Personally delivered or sent by first class mail to any
personal representative or designated person, if actually known
to the landlord.
(c) The notice described in subsection (5) of this section must
refer to any personal representative or designated person,
instead of the deceased tenant, and must incorporate the
provisions of this subsection.
(d) If a personal representative, designated person or other
person entitled to possession of the property, such as an heir or
devisee, responds by actual notice to a landlord within the
45-day period provided by subsection (6) of this section and so
requests, the landlord shall enter into a written storage
agreement with the representative or person providing that the
dwelling or home may not be sold or disposed of by the landlord
for up to 90 days or until conclusion of any probate proceedings,
whichever is later. A storage agreement entitles the
representative or person to store the personal property on the
previously rented space during the term of the agreement, but
does not entitle anyone to occupy the personal property. If such
an agreement is entered, the landlord may not enter a similar
agreement with a lienholder pursuant to subsection (19) of this
section until the agreement with the personal representative or
designated person ends.
(e) If a personal representative or other person requests that
a landlord enter into a storage agreement, subsection (19)(c),
(d) and (f)(C) of this section applies, with the representative
or person having the rights and responsibilities of a lienholder
with regard to the storage agreement.
(f) During the term of an agreement described under paragraph
(d) of this subsection, the representative or person has the
right to remove or sell the dwelling or home, including a sale to
a purchaser or a transfer to an heir or devisee where the
purchaser, heir or devisee wishes to leave the dwelling or home
on the rented space and become a tenant, subject to any
conditions previously agreed to by the landlord and tenant
regarding the landlord's approval for occupancy of a purchaser,
heir or devisee or, if there was no such agreement, any
reasonable conditions by the landlord regarding approval for
occupancy of any purchaser, heir or devisee who wishes to leave
the dwelling or home on the rented space and become a tenant. The
landlord also may condition approval for occupancy of any
purchaser, heir or devisee of the dwelling or home upon payment
of all unpaid storage charges and maintenance costs.
(g) If the representative or person violates the storage
agreement, the landlord may terminate the agreement by giving at
least 30 days' written notice to the representative or person
stating facts sufficient to notify the representative or person
of the reason for the termination. Unless the representative or
person corrects the violation within the notice period, the
agreement terminates as provided and the landlord may sell or
dispose of the dwelling or home without further notice to the
representative or person.
(h) Upon the failure of a representative or person to enter
into a storage agreement as provided by this subsection or upon
termination of an agreement, unless the parties otherwise agree
or the representative or person has sold or removed the
manufactured dwelling or floating home, the landlord may sell or
dispose of the property pursuant to this section without further
notice to the representative or person.
(21) If the personal property is other than a manufactured
dwelling or floating home and is considered abandoned as a result
of the death of a tenant who was the only tenant and who owned
the personal property, this section applies except as follows:
(a) The following persons have the same rights and
responsibilities regarding the abandoned personal property as a
tenant:
(A) An heir or devisee.
(B) Any personal representative named in a will or appointed by
a court to act for the deceased tenant.
(C) Any person designated in writing by the tenant to be
contacted by the landlord in the event of the tenant's death.
(b) The notice required by subsection (3) of this section must
be:
(A) Sent by first class mail to the deceased tenant at the
premises;
(B) Personally delivered or sent by first class mail to any
heir, devisee, personal representative or designated person, if
actually known to the landlord; and
(C) Sent by first class mail to the attention of an estate
administrator of the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + }.
(c) The notice described in subsection (5) of this section must
refer to the heir, devisee, personal representative, designated
person or estate administrator of the { + Oregon + } Department
{ + of Natural Resources + }, instead of the deceased tenant,
and must incorporate the provisions of this subsection.
(d) The landlord shall allow a person that is an heir, devisee
or personal representative of the tenant, or an estate
administrator of the { + Oregon + } Department { + of Natural
Resources + }, to remove the personal property if the person
contacts the landlord within the period provided by subsection
(6) of this section, complies with the requirements of this
section and provides the landlord with reasonable evidence that
the person is an heir, devisee or personal representative, or an
estate administrator of the department.
(e) If neither an heir, devisee nor personal representative of
the tenant, nor an estate administrator of the { + Oregon + }
Department { + of Natural Resources + }, contacts the landlord
within the time period provided by subsection (6) of this
section, the landlord shall allow removal of the personal
property by the designated person of the tenant, if the
designated person contacts the landlord within that period and
complies with the requirements of this section and provides the
landlord with reasonable evidence that the person is the
designated person.
(f) A landlord who allows removal of personal property under
this subsection is not liable to another person that has a claim
or interest in the personal property.
(22) If a governmental agency determines that the condition of
a manufactured dwelling, floating home or recreational vehicle
abandoned under this section constitutes an extreme health or
safety hazard under state or local law and the agency determines
that the hazard endangers others in the immediate vicinity and
requires quick removal of the property, the landlord may sell or
dispose of the property pursuant to this subsection. The landlord
shall comply with all provisions of this section, except as
follows:
(a) The date provided in subsection (6) of this section by
which a tenant, lienholder, owner, personal representative or
designated person must contact a landlord to arrange for the
disposition of the property must be not less than 15 days after
personal delivery or mailing of the notice required by subsection
(3) of this section.
(b) The date provided in subsections (8) and (9) of this
section by which a tenant, lienholder, owner, personal
representative or designated person must remove the property must
be not less than seven days after the tenant, lienholder, owner,
personal representative or designated person contacts the
landlord.
(c) The notice required by subsection (3) of this section must
be as provided in subsection (5) of this section, except that:
(A) The dates and deadlines in the notice for contacting the
landlord and removing the property must be consistent with this
subsection;
(B) The notice must state that a governmental agency has
determined that the property constitutes an extreme health or
safety hazard and must be removed quickly; and
(C) The landlord shall attach a copy of the agency's
determination to the notice.
(d) If the tenant, a lienholder, owner, personal representative
or designated person does not remove the property within the time
allowed, the landlord or a buyer at a sale by the landlord under
subsection (11) of this section shall promptly remove the
property from the facility.
(e) A landlord is not required to enter into a storage
agreement with a lienholder, owner, personal representative or
designated person pursuant to subsection (19) of this section.
(23)(a) If an official or agency referred to in ORS 453.876
notifies the landlord that the official or agency has determined
that all or part of the premises is unfit for use as a result of
the presence of an illegal drug manufacturing site involving
methamphetamine, and the landlord complies with this subsection,
the landlord is not required to comply with subsections (1) to
(22) and (24) to (27) of this section with regard to personal
property left on the portion of the premises that the official or
agency has determined to be unfit for use.
(b) Upon receiving notice from an official or agency
determining the premises to be unfit for use, the landlord shall
promptly give written notice to the tenant as provided in
subsection (3) of this section. The landlord shall also attach a
copy of the notice in a secure manner to the main entrance of the
dwelling unit. The notice to the tenant shall include a copy of
the official's or agency's notice and state:
(A) That the premises, or a portion of the premises, has been
determined by an official or agency to be unfit for use due to
contamination from the manufacture of methamphetamine and that as
a result subsections (1) to (22) and (24) to (27) of this section
do not apply to personal property left on any portion of the
premises determined to be unfit for use;
(B) That the landlord has hired, or will hire, a contractor to
assess the level of contamination of the site and to
decontaminate the site;
(C) That upon hiring the contractor, the landlord will provide
to the tenant the name, address and telephone number of the
contractor; and
(D) That the tenant may contact the contractor to determine
whether any of the tenant's personal property may be removed from
the premises or may be decontaminated at the tenant's expense and
then removed.
(c) To the extent consistent with rules of the Department of
Human Services, the contractor may release personal property to
the tenant.
(d) If the contractor and the department determine that the
premises or the tenant's personal property is not unfit for use,
upon notification by the department of the determination, the
landlord shall comply with subsections (1) to (22) and (24) to
(27) of this section for any personal property left on the
premises.
(e) Except as provided in paragraph (d) of this subsection, the
landlord is not responsible for storing or returning any personal
property left on the portion of the premises that is unfit for
use.
(24) In the case of an abandoned recreational vehicle,
manufactured dwelling or floating home that is owned by someone
other than the tenant, the provisions of this section regarding
the rights and responsibilities of a tenant to the abandoned
vehicle, dwelling or home also apply to that owner, with regard
only to the vehicle, dwelling or home, and not to any goods left
inside or outside the vehicle, dwelling or home.
(25) In the case of an abandoned motor vehicle, the procedure
authorized by ORS 98.830 and 98.835 for removal of abandoned
motor vehicles from private property may be used by a landlord as
an alternative to the procedures required in this section.
(26)(a) A landlord may sell or dispose of a tenant's abandoned
personal property without complying with subsections (1) to (25)
and (27) of this section if, after termination of the tenancy or
no more than seven days prior to the termination of the tenancy,
the following parties so agree in a writing entered into in good
faith:
(A) The landlord;
(B) The tenant, or for an abandonment as the result of the
death of a tenant who was the only tenant, the personal
representative, designated person or other person entitled to
possession of the personal property, such as an heir or devisee,
as described in subsection (20) or (21) of this section; and
(C) In the case of a manufactured dwelling, floating home or
recreational vehicle, any owner and any lienholder.
(b) A landlord may not, as part of a rental agreement, require
a tenant, a personal representative, a designated person or any
lienholder or owner to waive any right provided by this section.
(27) Until personal property is conclusively presumed to be
abandoned under subsection (9) of this section, a landlord does
not have a lien pursuant to ORS 87.152 for storing the personal
property.
SECTION 591. ORS 93.230 is amended to read:
93.230. (1) If parties to whom deeds have been issued by the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } have lost such deeds before { - they - }
{ + the deeds + } were placed on record in the county wherein
the land conveyed is located, the Director of the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + }, on application of the party entitled
thereto, shall cause a certified copy of the record of the deed
in the office of the department to be issued under its seal.
(2) If parties to whom patents for lands have been issued by
the United States for lands in the State of Oregon have lost such
patents before { - they - } { + the patents + } were placed
on record in the county wherein the land conveyed is located,
such parties, or their successors in interest, may apply to and
obtain from the Bureau of Land Management, or its successor
agency, copies of the records of such patents, duly certified to
be correct copies of the original patents, or of the record
thereof, by the appropriate federal officer.
(3) Every certified copy issued in accordance with subsection
(1) or (2) of this section is entitled to record in the proper
county with like effect as the original deed or patent. Every
such copy so certified may be read in evidence in any court in
this state without further proof thereof. The record of any such
certified copy, or a transcript thereof certified by the county
clerk in whose office it may have been recorded, may be read in
evidence in any court in this state with like effect as the
original thereof or the original lost deed or patent.
SECTION 592. ORS 93.690 is amended to read:
93.690. (1) The Director of the { - Department of State
Lands - } { + Oregon Department of Natural Resources + } shall
forward all patents and clear lists of land and other documents
evidencing that title to land has passed from the United States
to the State of Oregon, which have been or shall be received by
the State of Oregon, to the officer in each county of the state
in which any of such land is situated whose duty it is to record
conveyances of real estate. Upon the receipt of such patents,
clear lists or other documents, the recording officer of the
county shall forthwith record the instruments in the records of
deeds of the county and index them in the manner provided for
indexing deeds. When the recording officer has properly recorded
such instruments the recording officer shall return them to the
director { - of the Department of State Lands - } .
(2) When any such instrument includes land in more than one
county, the record of the instrument in each county need include
only the description of the land lying wholly or partly in that
county and all other land may be indicated as omitted.
SECTION 593. ORS 98.050 is amended to read:
98.050. (1) The administrator may compile information or data
in the possession of the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } into finder's
reports at the request of any person to assist in finding the
owners of abandoned or unclaimed property.
(2) The administrator shall adopt by rule a fee for copies of
finder's reports. The fee charged shall be commensurate with
preparation costs including production, duplication and staff
time involved.
(3) Any person requesting a copy of a finder's report shall be
charged the fee.
(4) As used in subsections (1) to (3) of this section:
(a) 'Administrator' { - has the same meaning as given by ORS
98.302 - } { + means the Director of the Oregon Department of
Natural Resources + }.
(b) 'Person' includes any natural person, corporation,
partnership, firm or association.
(c) 'Finder's report' means any report prepared by the
administrator for the benefit of any person to assist in finding
the owners of abandoned or unclaimed property.
SECTION 594. ORS 98.302 is amended to read:
98.302. As used in ORS 98.302 to 98.436 and 98.992, unless the
context otherwise requires:
(1) 'Administrator' means the Director of the { - Department
of State Lands - } { + Oregon Department of Natural
Resources + }.
(2) 'Apparent owner' means the person whose name appears on the
records of the holder as the person entitled to property held,
issued or owing by the holder.
(3) 'Business association' means a nonpublic corporation, joint
stock company, business trust, partnership, investment company or
an association for business purposes of two or more individuals,
whether or not for profit, including a financial institution,
insurance company or utility.
(4) 'Domicile' means the state of incorporation of a
corporation and the state of the principal place of business of
an unincorporated person.
(5) 'Financial institution' means a financial institution or a
trust company, as those terms are defined in ORS 706.008, a safe
deposit company, a private banker, a savings and loan
association, a building and loan association or an investment
company.
(6) 'Holder' means a person, wherever organized or domiciled,
who is in possession of property belonging to another, a trustee
or indebted to another on an obligation.
(7) 'Insurance company' means an association, corporation,
fraternal or mutual benefit organization, whether or not for
profit, which is engaged in providing insurance coverage,
including accident, burial, casualty, workers' compensation,
credit life, contract performance, dental, fidelity, fire,
health, hospitalization, illness, life (including endowments and
annuities), malpractice, marine, mortgage, surety and wage
protection insurance.
(8) 'Intangible property' includes:
(a) Credit balances, customer overpayments, security deposits,
refunds, credit memos, unpaid wages, unused airline tickets and
unidentified remittances;
(b) Stocks and other intangible ownership interests in business
associations;
(c) Moneys deposited to redeem stocks, bonds, coupons, and
other securities, or to make distributions;
(d) Amounts due and payable under the terms of insurance
policies;
(e) Amounts distributed from a trust or custodial fund
established under a plan to provide health, welfare, pension,
vacation, severance, retirement, death, stock purchase, profit
sharing, employee savings, supplemental unemployment insurance or
similar benefits; and
(f) Moneys, checks, drafts, deposits, interest, dividends and
income.
(9) 'Last-known address' means a description of the location of
the apparent owner sufficient for the purpose of delivery of
mail.
(10) 'Lawful deduction' means a deduction related to the
purpose of an account or deposit, for example, to satisfy unpaid
utility bills.
(11) 'Owner' means a depositor in case of a deposit, a
beneficiary in case of a trust other than a deposit in trust, a
creditor, claimant, or payee in case of other intangible
property, or a person, or the person's legal representative,
having a legal or equitable interest in property.
(12) 'Person' means an individual, business association, state
or other government or political subdivision or agency, public
corporation, public authority, two or more persons having a joint
or common interest, or any other legal or commercial entity.
(13) 'Service charge' means fees or charges that are limited to
a specific situation and that meet basic contractual and notice
requirements.
(14) 'State' means any state, district, commonwealth,
territory, insular possession or any other area subject to the
legislative authority of the United States.
(15) 'Utility' means a person who owns or operates for public
use, any plant, equipment, property, franchise or license for the
transmission of communications or the production, storage,
transmission, sale, delivery or furnishing of electricity, water,
steam or gas.
SECTION 595. ORS 98.329 is amended to read:
98.329. A holder, with the written consent of the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + }, and in compliance with rules prescribed by
the department, may report and deliver property before the
property is presumed abandoned.
SECTION 596. ORS 98.348 is amended to read:
98.348. (1) At any time after property has been paid or
delivered to the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } under ORS 98.352, another
state may recover the property if one or more of the following is
true:
(a) The property was subjected to custody by this state because
the records of the holder did not reflect the last-known address
of the apparent owner when the property was presumed abandoned
under ORS 98.302 to 98.436 and 98.992; and the other state
establishes that the last-known address of the apparent owner or
other person entitled to the property was in that state and under
the laws of that state the property escheated to or was subject
to a claim of abandonment by that state.
(b) The last-known address of the apparent owner or other
person entitled to the property, as reflected by the records of
the holder, is in the other state and under the laws of that
state the property has escheated to or become subject to a claim
of abandonment by that state.
(c) The records of the holder were erroneous in that they did
not accurately reflect the owner of the property and the
last-known address of the owner is in the other state and under
the laws of that state the property escheated to or was subject
to a claim of abandonment by that state.
(d) The property was subjected to custody by this state and
under the laws of the state of domicile of the holder the
property has escheated to or become subject to a claim of
abandonment by that state.
(e) The property is the sum payable on a traveler's check,
money order or other similar instrument that was subjected to
custody by this state under ORS 98.309, and the instrument was
purchased in the other state and under the laws of that state the
property escheated to or became subject to a claim of abandonment
by that state.
(2) The claim of another state to recover escheated or
unclaimed property must be presented in a form prescribed by the
department { - of State Lands - } . The department shall decide
the claim within 90 days after it is presented.
(3) The department shall require a state, before recovering
property under this section, to agree to indemnify this state and
its officers and employees against any liability on a claim for
the property.
SECTION 597. ORS 98.352 is amended to read:
98.352. (1) Every person holding funds or other property,
tangible or intangible, presumed abandoned under ORS 98.302 to
98.436 and 98.992 shall report and pay or deliver to the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } all property presumed abandoned as provided
in this section, except that:
(a) Funds transferred to the General Fund under ORS 293.455
(1)(a) shall only be reported to the department.
(b) Funds in the possession of the Child Support Program
described in ORS 180.345 shall only be reported to the
department.
(c) Funds in lawyer trust accounts shall only be reported to
the department.
(2) The report shall be verified as to the accuracy of the
information contained and shall include:
(a) Except with respect to traveler's checks and money orders,
the name, if known, and address, if known, of each person
appearing from the records of the holder to be the owner of any
property of value of $50 or more presumed abandoned under ORS
98.302 to 98.436 and 98.992;
(b) In case of unclaimed funds of life insurance corporations,
the full name of the insured or annuitant and last-known address
according to the life insurance corporation's records;
(c) The nature and identifying number, if any, or description
of the property and the amount appearing from the records to be
due, except that items of value under $50 each may be reported in
aggregate;
(d) The date when the property became payable, demandable, or
returnable, and the date of the last transaction with the owner
with respect to the property; and
(e) Other information that the department prescribes by rule as
necessary for the administration of ORS 98.302 to 98.436 and
98.992.
(3) If the person holding property presumed abandoned is a
successor to other persons who previously held the property for
the owner, or if the holder has had a name change while holding
the property, the holder shall file with the report all prior
known names and addresses and effective dates of changes if known
of each holder of the property.
(4) The report shall be filed after October 1, but no later
than November 1 of each year for accounts dormant as of June 30.
The department may postpone the reporting date upon written
request by any person required to file a report. All records are
exempt from public review for 12 months from the time the
property is reportable and for 24 months after the property has
been remitted to the department. All lists of records or property
held by a government or public authority under ORS 98.336 shall
be exempt from public review until 24 months after the property
is remitted to the department.
(5) If the holder of property presumed abandoned under ORS
98.302 to 98.436 and 98.992 knows the whereabouts of the owner
and if the owner's claim has not been barred by the statute of
limitations, the holder shall, before filing the annual report,
communicate with the owner and take necessary steps to prevent
abandonment from being presumed. The holder shall exercise due
diligence to ascertain the whereabouts of the owner.
(6) If the property presumed abandoned is a lawyer trust
account established by an attorney or law firm, the report
required by this section must indicate that the account is a
lawyer trust account in addition to providing the information
required by subsection (2) of this section.
(7) Verification, if made by a partnership, shall be executed
by a partner; if made by an unincorporated association or private
corporation, by an officer; and if made by a public corporation,
by its chief fiscal officer.
SECTION 598. ORS 98.353 is amended to read:
98.353. (1) The { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } shall, on a
regular basis, provide educational or informational materials to
persons required to file a report under ORS 98.352. The
educational or informational materials shall contain, but shall
not be limited to, information describing:
(a) The types of property, tangible and intangible, that are
subject to reporting;
(b) Persons who typically hold, knowingly or unknowingly,
unclaimed property;
(c) Record keeping requirements for persons holding unclaimed
property; and
(d) Any penalties for failing to comply with the provisions of
ORS 98.302 to 98.436.
(2) Upon request by the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + }, the Department
of Revenue and the Office of the Secretary of State shall:
(a) Assist the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } in determining which persons
are required to file a report under ORS 98.352; and
(b) Allow the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } to include information about
unclaimed property reporting requirements in the regular mailings
of the Department of Revenue.
SECTION 599. ORS 98.354 is amended to read:
98.354. (1) Every holder required to file a report under ORS
98.352 as to any property for which the holder has obtained an
address of the owner, shall maintain a record of the name and
last-known address of the owner and such signature cards and
other evidence which would assist in the identification of the
owner for three years after the property has been remitted to the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + }.
(2) Any business association that sells in this state
traveler's checks, money orders or other similar written
instruments, other than third party bank checks on which the
business association is directly liable, or that provides such
instruments to others for sale in this state, shall maintain a
record of those instruments while they remain outstanding,
indicating the state and date of issue, for five years after the
date the property has been remitted to the department.
SECTION 600. ORS 98.356 is amended to read:
98.356. (1) The { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } shall publish
notice of owners' unclaimed accounts reported under ORS 98.352.
The notice shall be published at least twice in a newspaper or
other generally circulated periodical published in this state.
The department may publish such notices at intervals to locate
owners of accounts received under ORS 98.352 (4) in an expedient
manner, but shall complete publication of all such accounts
within one year of remittance.
(2) The department is not required to publish in such notice
any item of less than $100 unless the department deems such
publication to be in the public interest.
(3) This section is not applicable to sums payable on
traveler's checks or money orders presumed abandoned under ORS
98.309.
(4) The department shall undertake reasonable efforts to locate
owners of unclaimed property reported to the department under ORS
98.352. The costs of such efforts may be deducted from the
proceeds that are paid to the owners when and if an owner is
located. The department shall specify, by rule, a maximum
percentage of costs that may be deducted from a verified claim
for unclaimed property.
(5) The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } may not disclose to the
general public any confidential information provided by the
Department of Revenue from taxpayer returns.
SECTION 601. ORS 98.362 is amended to read:
98.362. (1) The holder of an intangible equity ownership
interest presumed abandoned under ORS 98.322 shall deliver a
certificate of ownership or other evidence of ownership to the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } as follows:
(a) The original certificate shall be delivered to the
department when it is held by the business association, transfer
agent, registrar or other person acting on behalf of the business
association.
(b) A duplicate certificate shall be issued to the department
when the business association, transfer agent, registrar or other
person acting on behalf of the holder does not hold the original.
(2) After issuance of a duplicate certificate under subsection
(1) of this section, the rights of a protected purchaser of the
original certificate shall be governed by ORS 78.4050. In such
event, recovery by the protected purchaser shall be against the
department to the extent allowed under the Oregon Constitution.
SECTION 602. ORS 98.366 is amended to read:
98.366. (1) Upon the payment or delivery of unclaimed property
to the { - Department of State Lands - } { + Oregon
Department of Natural Resources + }, the state shall assume
custody and shall be responsible for the safekeeping thereof. Any
person who pays or delivers unclaimed property to the department
under ORS 98.352 is relieved of all liability to the extent of
the value of the property so paid or delivered for any claim
which then exists or which thereafter may arise or be made in
respect to the property.
(2) A holder who has paid money to the department under ORS
98.352 may make payment to any person appearing to the holder to
be entitled to payment. The department shall reimburse the holder
within 60 days of receiving proof that payment was made to a
person who appeared to the holder to be entitled to payment. The
department shall reimburse the holder for the payment without
imposing any fee or other charge.
SECTION 603. ORS 98.372 is amended to read:
98.372. The owner is not entitled to receive income or other
increments { - which - } { + that + } have accrued on the
property after the property is paid or delivered to the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } under ORS 98.352.
SECTION 604. ORS 98.376 is amended to read:
98.376. The expiration of any period of time specified by
statute or court order, during which an action, suit or
proceeding may be commenced or enforced to obtain payment of a
claim for money or recovery of property, shall not prevent the
money or property from being presumed abandoned, nor affect any
duty to file a report required by ORS 98.352 or to pay or deliver
unclaimed property to the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + }, provided that
this section shall not affect any property interests which became
vested prior to August 20, 1957.
SECTION 605. ORS 98.382 is amended to read:
98.382. (1)(a) All unclaimed property other than money and
securities delivered to the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } under ORS 98.362
shall be sold by the department to the highest bidder at public
sale by the method and at the location that the department
determines are the most favorable for receiving the highest price
for the property involved. The department may decline the highest
bid and reoffer the property for sale if the department considers
the price bid insufficient. The department need not offer any
property for sale if, in the department's opinion, the probable
cost of sale exceeds the value of the property.
(b) In choosing the most favorable method for the sale of
property under this subsection, the department may consider:
(A) A public oral auction;
(B) An electronic commerce forum; and
(C) Any other method for sale that ensures the highest returns
and provides for open, public participation.
(c) In choosing the most favorable location for the sale of
property under this subsection, the department may consider:
(A) The population of the location;
(B) The cost of conducting the sale in the location;
(C) The type of property being sold;
(D) The public access to the proposed sale location, including
parking; and
(E) Any other indicator of market potential of the location.
(2) For a sale by public oral auction held under subsection (1)
of this section, the department shall publish at least a single
notice of the sale at least 10 days in advance of the sale in a
newspaper of general circulation in the county where the property
is to be sold. For a sale by a method other than public oral
auction, the department shall publish at least a single notice in
a newspaper of general circulation in Marion County.
(3) Securities listed on an established stock exchange shall be
sold on the exchange at prices prevailing on the exchange at the
time of sale. Other securities may be sold over the counter at
prices prevailing at the time of sale or by any other method the
administrator considers advisable.
(4) All securities and other intangible properties presumed
abandoned under ORS 98.362 and delivered to the department shall
be sold by the department at such time and place and in such
manner as in the department's judgment will bring the highest
return.
(5) The department shall indemnify the holder of securities
presumed abandoned under ORS 98.322 to the extent allowed by the
Oregon Constitution. The department shall establish procedures by
administrative rule to pay the rightful owner proceeds received
from securities that were sold before the owner filed a claim to
recover such securities.
(6) The purchaser at a sale conducted by the department
pursuant to this section shall receive title to the property
purchased, free from all claims of the owner or prior holder of
the property and of all persons claiming through or under them.
The department shall execute all documents necessary to complete
the transfer of title.
SECTION 606. ORS 98.384 is amended to read:
98.384. If the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } determines after
investigation that any property delivered under ORS 98.352 has
insubstantial commercial value, the department may destroy or
otherwise dispose of the property at any time. No action or
proceeding may be maintained against the state or any officer or
against the holder for or on account of any action taken by the
department pursuant to this section.
SECTION 607. ORS 98.386 is amended to read:
98.386. (1) Except as provided in subsection (2) of this
section, all funds received under ORS 98.302 to 98.436 and
98.992, including the proceeds from the sale of unclaimed
property under ORS 98.382, shall be deposited by the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } in the Common School Fund
{ - Account - } with the State Treasurer. Before making the
deposit the department shall record the name and last-known
address of each person appearing from the holders' reports to be
entitled to the unclaimed property and the name and last-known
address of each insured person or annuitant, and with respect to
each policy or contract listed in the report of a life insurance
corporation, its number, the name of the corporation, and the
amount due.
(2) Any amounts identified as lawyer trust account funds in the
report required by ORS 98.352 shall be paid or delivered by the
person holding the amounts to the Oregon State Bar along with a
copy of the report. All amounts paid or delivered to the Oregon
State Bar under this section are continuously appropriated to the
Oregon State Bar, and may be used only for the funding of legal
services provided through the Legal Services Program established
under ORS 9.572, the payment of claims allowed under ORS 98.392
(2) and the payment of expenses incurred by the Oregon State Bar
in the administration of the Legal Services Program.
(3) Before making a deposit to the credit of the Common School
Fund { - Account - } , the department may deduct:
(a) Any costs in connection with sale of unclaimed property;
(b) Any costs of mailing and publication in connection with
efforts to locate owners of unclaimed property as prescribed by
rule; and
(c) Reasonable service charges.
SECTION 608. ORS 98.388 is amended to read:
98.388. There is created from unclaimed property funds an
Unclaimed Property Revolving Fund. The moneys in the fund are
{ - appropriated continuously to the Department of State
Lands - } { + continuously appropriated to the Oregon
Department of Natural Resources + } for the purpose of repaying
claims as provided under ORS 98.396.
SECTION 609. ORS 98.392 is amended to read:
98.392. (1) A person claiming an interest in unclaimed property
reported to the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } may file a claim to the
property or to the proceeds from the sale of the property at any
time after the person learns that the property has been reported
to the department. Claims shall be filed on the form prescribed
by the department. The department may require the person to
provide a lost instrument bond if the claim is for securities and
the person does not surrender the original certificate to the
department.
(2) If a claim is filed under this section for amounts
identified as lawyer trust account funds in the report required
by ORS 98.352, the department shall forward the claim to the
Oregon State Bar for review and for payment by the Oregon State
Bar if the claim is allowed. The department and the Oregon State
Bar shall adopt rules for the administration of claims subject to
this subsection.
SECTION 610. ORS 98.396 is amended to read:
98.396. (1) The { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } shall consider
any claim filed under ORS 98.392 and may hold a hearing and
receive evidence concerning the claim. If a hearing is held, the
department shall prepare findings and a decision in writing on
each claim filed, stating the substance of any evidence heard by
the department and the reasons for the decision. The decision
shall be a public record.
(2) If the claim allowed is for property deposited in the
Common School Fund { - Account - } , the department shall
return the property or make payment of the proceeds of the sale
of the property to the claimant.
(3) If the claim allowed is for funds deposited in the General
Fund, the department shall pay the claim and file a request for
reimbursement with the State Treasurer. The State Treasurer shall
reimburse the department within five working days from the fund
against which the check or order represented in the claim was
issued.
SECTION 611. ORS 98.402 is amended to read:
98.402. (1) A person aggrieved by a decision of the
administrator may request a hearing regarding the decision. The
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } shall conduct the hearing as a contested
case proceeding in accordance with ORS 183.413 to 183.470.
(2) If the administrator fails to act on a claim within 120
days after a person files the claim under ORS 98.392, the person
may file a petition under ORS 183.484 to request a court to
compel the department to act pursuant to ORS 183.490.
SECTION 612. ORS 98.412 is amended to read:
98.412. (1) The { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } may require a
person who has not filed a report to file a verified report
stating whether or not the person is holding any unclaimed
property reportable or deliverable under ORS 98.352.
(2) The department may at reasonable times and upon reasonable
notice examine the records of any person to determine whether the
person has complied with the provisions of ORS 98.352. The
department may conduct the examination even if the person
believes it is not in possession of any property reportable or
deliverable under this section.
(3) To the extent possible, the department shall enter into
agreements with state and federal agencies that regularly examine
the records of financial institutions, trust companies, financial
holding companies and bank holding companies, as defined in ORS
706.008, and of subsidiaries of such financial institutions,
trust companies, financial holding companies and bank holding
companies. Under the agreements, the state and federal agencies
shall examine the records of the financial institution, trust
company, financial holding company, bank holding company or
subsidiary to determine compliance with ORS 98.352. If a state or
federal agency does not enter into an agreement with the
department under this subsection, the department shall conduct
the examination of the records of financial institutions, trust
companies, financial holding companies and bank holding companies
to determine compliance with ORS 98.352.
(4) If a holder fails to maintain the records required by ORS
98.354 and the records of the holder available for the periods
subject to ORS 98.302 to 98.436 and 98.992 are insufficient to
permit the preparation of a report, the department may issue a
finding that requires the holder to report and pay the amounts
that the department reasonably estimates from the report and
available records. The department shall include in its finding a
notice substantially similar to that specified under ORS 183.415.
Additionally, the notice shall include information about
opportunities to resolve disputes through a collaborative dispute
resolution process.
(5) Any holder subject to examination under this section may
request a hearing regarding the findings issued by the
department. The department shall conduct a hearing under this
subsection as a contested case proceeding in accordance with ORS
183.413 to 183.470.
SECTION 613. ORS 98.416 is amended to read:
98.416. (1) If any person refuses to deliver property to the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } as required under ORS 98.352, the
department may bring a suit or action in a court of appropriate
jurisdiction to enforce delivery of the property.
(2) The department may require a person who fails to pay or
deliver property within the time prescribed by ORS 98.302 to
98.436 and 98.992 to pay interest from the date the department
determines interest should have been paid. Interest shall be paid
at the rate set by the Director of the Department of Revenue
pursuant to ORS 305.220 (1) and (3).
SECTION 614. ORS 98.424 is amended to read:
98.424. (1) The { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } may enter into
agreements with other states to exchange information needed to
enable this or another state to audit or otherwise determine
unclaimed property that this state or another state may be
entitled to subject to a claim of custody under ORS 98.348. The
department may adopt rules requiring the other states to report
information needed to enable compliance with agreements made
pursuant to this section and prescribing the form for making a
claim of custody under ORS 98.348.
(2) To avoid conflicts between the department's procedures and
the procedures of administrators in other jurisdictions that
enact an unclaimed property act, the department, { - so - }
{ + as + } far as is consistent with the purposes, policies and
provisions of ORS 98.302 to 98.436 and 98.992, before adopting,
amending or repealing rules, shall advise and consult with
administrators in other jurisdictions that enact a substantially
similar unclaimed property act and take into consideration the
rules of administrators in other jurisdictions that enact an
unclaimed property act.
(3) The department may join with other states to seek
enforcement of ORS 98.302 to 98.436 and 98.992 against any person
who is or may be holding property reportable under ORS 98.352.
(4) At the request of another state, the Attorney General of
this state may bring an action in the name of another state to
enforce the unclaimed property laws of the other state against a
holder in this state of property subject to escheat or a claim of
abandonment by the other state, if the other state has agreed to
pay expenses incurred by the attorney general in bringing the
action, including attorney fees.
(5) The department, through the Attorney General of this state,
may request the attorney general of another state or any other
person to bring an action in the other state in the name of the
department against the holder of property in the other state that
is subject to escheat or a claim of abandonment by this state.
This state shall pay all expenses including attorney fees in any
action under this subsection. Any expenses paid pursuant to this
subsection may not be deducted from the amount that is subject to
the claim by the owner under ORS 98.302 to 98.436 and 98.992.
(6) The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } shall not disclose to any
other state any confidential information provided by the
Department of Revenue from taxpayer returns.
SECTION 615. ORS 98.991 is amended to read:
98.991. (1) Any person who willfully fails to render any report
or perform other duties required under this Act is guilty of a
misdemeanor.
(2) Any person who willfully refuses to pay or deliver
unclaimed property to the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } as required under
this Act is guilty of a misdemeanor.
SECTION 616. ORS 98.992 is amended to read:
98.992. A person who willfully fails to render any report, to
pay or deliver property or to perform other duties required by
ORS 98.302 to 98.436 and 98.992 may be required to forfeit and
pay to the State Treasurer to be deposited in the Common School
Fund
{ - Account - } , an amount determined by the { - Department
of State Lands - } { + Oregon Department of Natural
Resources + } pursuant to ORS 183.745 of not more than $1,000 for
individuals and $50,000 for corporations. This penalty shall be
assessed only after at least one reporting cycle, and only after
the department has provided the person with written instructions,
including copies of applicable laws and policies. The department
may waive any penalty due under this section with appropriate
justification.
SECTION 617. ORS 112.055 is amended to read:
112.055. (1) If no person takes under ORS 112.025 to 112.045,
the net intestate estate escheats to the State of Oregon.
(2) If a devisee or a person entitled to take under ORS 112.025
to 112.045 is not identified or found, the share of that person
escheats to the State of Oregon.
(3) If a devisee or a person entitled to take under ORS 112.025
to 112.045 is not identified or found:
(a) The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } has the same preference as
the missing devisee or person for the purpose of appointment as
personal representative under ORS 113.085;
(b) Title to property of the decedent that would vest in the
missing devisee or person under ORS 114.215 vests in the
department { - of State Lands - } ; and
(c) The department { - of State Lands - } has all of the
rights of the missing devisee or person for the purposes of ORS
chapters 111, 112, 113, 114, 115, 116 and 117, including but not
limited to the following:
(A) The right to contest any will of the decedent under ORS
113.075; and
(B) The right to information under ORS 113.145.
SECTION 618. ORS 113.045 is amended to read:
113.045. (1) Upon appointment, a personal representative shall
deliver or mail to an estate administrator of the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } appointed under ORS 113.235 a copy of the
petition filed under ORS 113.035, and a copy of any last will of
the decedent, if the personal representative has not identified
and found all heirs and devisees of the decedent. The personal
representative shall file proof of the delivery or mailing with
the court.
(2) If at any time after the appointment of a personal
representative it appears that any heir or devisee of the
decedent cannot be identified and found, the personal
representative shall promptly deliver or mail to an estate
administrator of the department { - of State Lands - }
appointed under ORS 113.235 a notice indicating that an heir or
devisee cannot be identified and found. The personal
representative shall file proof of the delivery or mailing with
the court.
(3) This section does not affect the requirements of ORS
113.085 (2).
SECTION 619. ORS 113.085 is amended to read:
113.085. (1) Except as provided in subsection (2) of this
section, upon the filing of the petition, if there is no will or
there is a will and it has been proved, the court shall appoint a
qualified person it finds suitable as personal representative,
giving preference in the following order:
(a) The executor named in the will.
(b) The surviving spouse of the decedent or the nominee of the
surviving spouse of the decedent.
(c) The nearest of kin of the decedent or the nominee of the
nearest of kin of the decedent.
(d) The Director of Human Services, or an attorney approved by
the director under ORS 113.086, if the decedent received public
assistance pursuant to ORS chapter 411 or received care at an
institution described in ORS 179.321 (1), and it appears that the
assistance or the cost of care may be recovered from the estate
of the decedent.
(e) The Director of the Oregon Health Authority, or an attorney
approved by the director under ORS 113.086, if the decedent
received public assistance pursuant to ORS chapter 414 or
received care at an institution described in ORS 179.321 (2), and
it appears that the assistance or the cost of care may be
recovered from the estate of the decedent.
(f) The Department of Veterans' Affairs, if the decedent was a
protected person under ORS 406.050 (8), and the department has
joined in the petition for such appointment.
(g) Any other person.
(2) Except as provided in subsection (3) of this section, the
court shall appoint the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } as personal
representative if it appears that the decedent died wholly
intestate and without known heirs. The Attorney General shall
represent the department { - of State Lands - } in the
administration of the estate. Any funds received by the
department { - of State Lands - } in the capacity of personal
representative may be deposited in accounts, separate and
distinct from the General Fund, established with the State
Treasurer. Interest earned by such account shall be credited to
that account.
(3) The court may appoint a person other than the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } to administer the estate of a decedent who
died wholly intestate and without known heirs if the person
filing a petition under ORS 113.035 attaches written
authorization from an estate administrator of the department
{ - of State Lands - } appointed under ORS 113.235 approving
the filing of the petition by the person. Except as provided by
rule adopted by the Director of the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + }, an estate administrator may consent to the
appointment of another person to act as personal representative
only if it appears after investigation that the estate is
insolvent.
SECTION 620. ORS 113.105 is amended to read:
113.105. (1) Unless a testator provides in a will that no bond
shall be required of the executor of the estate, or unless the
personal representative is the sole heir or devisee or is the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + }, the Department of Veterans' Affairs, the
Director of Human Services, the Director of the Oregon Health
Authority or an attorney approved under ORS 113.086, the personal
representative may not act nor shall letters be issued to the
personal representative until the personal representative files
with the clerk of the court a bond. The bond shall be executed by
a surety company authorized to transact surety business in this
state, or by one or more sufficient personal sureties approved by
the court. A personal surety must be a resident of this state.
The court may, in its discretion, require a bond notwithstanding
any provision in a will that no bond is required. The bond shall
be for the security and benefit of all interested persons and
shall be conditioned upon the personal representative faithfully
performing the duties of the trust.
(2) The amount of the bond set by the court shall be adequate
to protect interested persons, but in no event shall it be less
than $1,000. In setting the amount of the bond the court shall
consider:
(a) The nature, liquidity and apparent value of the assets of
the estate.
(b) The anticipated income during administration.
(c) The probable indebtedness and taxes.
(3) Nothing in this section affects the provisions of ORS
709.240, relating to a trust company acting as personal
representative.
(4) Notwithstanding any other provisions of this section, a
court may, in its discretion, waive the requirement of a bond if
all devisees and heirs known to the court agree in writing that
the requirement be waived and the signed agreement is filed with
the court at the time of filing of the petition for the
appointment of a personal representative.
SECTION 621. ORS 113.235 is amended to read:
113.235. The Director of the { - Department of State
Lands - } { + Oregon Department of Natural Resources + } shall
appoint one or more estate administrators to act for the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } in administration of any estate in which
the department { - of State Lands - } is appointed personal
representative. An estate administrator appointed under this
section is an employee of the department { - of State Lands - }
.
SECTION 622. ORS 113.238 is amended to read:
113.238. (1) A person who has knowledge that a decedent died
wholly intestate, that the decedent owned property subject to
probate in Oregon and that the decedent died without a known heir
shall give notice of the death within 48 hours after acquiring
that knowledge to an estate administrator of the { - Department
of State Lands - } { + Oregon Department of Natural
Resources + } appointed under ORS 113.235.
(2) Except as provided by ORS 708A.430 and 723.466, a person
may not dispose of or diminish any assets of the estate of a
decedent who has died wholly intestate, who owned property
subject to probate in Oregon and who died without a known heir
unless the person has prior written approval of an estate
administrator of the department { - of State Lands - }
appointed under ORS 113.235. The prohibition of this subsection:
(a) Applies to a guardian or conservator for the decedent; and
(b) Does not apply to a personal representative appointed under
ORS 113.085 (3) or to an affiant authorized under ORS 114.520 to
file an affidavit under ORS 114.515.
(3) For purposes of this section, a known heir is an heir who
has been identified and found.
SECTION 623. ORS 113.242 is amended to read:
113.242. (1) An estate administrator of the { - Department of
State Lands - } { + Oregon Department of Natural Resources + }
appointed under ORS 113.235 may take custody of the property of a
decedent who died owning property subject to probate in Oregon
upon the estate administrator receiving notice that:
(a) The decedent died wholly intestate and without a known heir
as described in ORS 113.238 (3); or
(b) The decedent left a valid will, but no devisee has been
identified and found.
(2) For any estate described in subsection (1) of this section,
an estate administrator of the department { - of State
Lands - } appointed under ORS 113.235 may:
(a) Incur expenses for the funeral, burial or other disposition
of the remains of the decedent in a manner suitable to the
condition in life of the decedent;
(b) Incur expenses for the protection of the property of the
estate;
(c) Incur expenses searching for a will or for heirs or
devisees of the decedent;
(d) Have access to the property and records of the decedent
other than records that are made confidential or privileged by
statute;
(e) With proof of the death of the decedent, have access to all
financial records of accounts or safe deposit boxes of the
decedent at banks or other financial institutions; and
(f) Sell perishable property of the estate.
(3) The reasonable funeral and administrative expenses of the
department { - of State Lands - } incurred under this section,
including a reasonable attorney fee, shall be paid from the
assets of the estate with the same priority as funeral and
administration expenses under ORS 115.125.
SECTION 624. ORS 114.505 is amended to read:
114.505. As used in ORS 114.505 to 114.560:
(1) 'Affiant' means the person or persons signing an affidavit
filed under ORS 114.515.
(2) 'Claiming successors' means:
(a) If the decedent died intestate, the heir or heirs of the
decedent, or if there is no heir, an estate administrator of the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } appointed under ORS 113.235;
(b) If the decedent died testate, the devisee or devisees of
the decedent; and
(c) Any creditor of the estate entitled to payment or
reimbursement from the estate under ORS 114.545 (1)(c) who has
not been paid or reimbursed the full amount owed such creditor
within 60 days after the date of the decedent's death.
(3) 'Estate' means decedent's property subject to
administration in Oregon.
SECTION 625. ORS 114.520 is amended to read:
114.520. (1) If a decedent dies intestate and without heirs, a
creditor of an estate who is a claiming successor may not file an
affidavit under ORS 114.515 unless the creditor has received
written authorization from an estate administrator of the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } appointed under ORS 113.235. Except as
provided by rule adopted by the Director of the { - Department
of State Lands - } { + Oregon Department of Natural
Resources + }, an estate administrator shall consent to the
filing of an affidavit under ORS 114.515 by a creditor only if it
appears after investigation that the estate is insolvent.
(2) A creditor of an estate who is subject to subsection (1) of
this section may give written notice to an estate administrator
of the department { - of State Lands - } informing the estate
administrator that the creditor intends to file an affidavit
under ORS 114.515. Upon receiving the notice permitted by this
subsection, the estate administrator shall investigate the assets
and liabilities of the estate. Within 30 days after receiving the
notice required by this subsection, the estate administrator
shall either:
(a) Give written authorization to the creditor for the filing
of an affidavit by the creditor under ORS 114.515; or
(b) Inform the creditor that the department { - of State
Lands - } will file an affidavit as claiming successor under ORS
114.515.
(3) If a decedent dies intestate and without heirs, a creditor
of an estate who is a claiming successor and who files an
affidavit under ORS 114.515 must notate at the top of the
affidavit that the affidavit is being filed by a creditor of the
estate. If the affidavit contains the notation required by this
subsection, the clerk of the probate court may not accept the
affidavit for filing unless there is attached to the affidavit
written authorization for the filing of the affidavit by the
creditor from an estate administrator of the department { - of
State Lands - } . The written authorization may be a copy of a
memorandum of an interagency agreement between the department
{ - of State Lands - } and another state agency.
SECTION 626. ORS 116.193 is amended to read:
116.193. If it appears to the court, at any time after the
expiration of four months after the date of the first publication
of notice to interested persons, that there is no known person to
take by descent the net intestate estate, the court shall order
that the estate escheat to the State of Oregon and that the whole
of the estate, after payment of claims, taxes and expenses of
administration, be distributed to the { - Department of State
Lands - } { + Oregon Department of Natural Resources + }. There
shall be no further proceeding in the administration of the
estate, and the estate shall summarily be closed.
SECTION 627. ORS 116.203 is amended to read:
116.203. If a report filed in the estate proceeding by the
personal representative not less than 30 days after the date of
entry of the judgment of distribution shows that payment or
delivery of property in the possession of the personal
representative or under the control of the personal
representative cannot be made to a distributee entitled thereto,
either because the distributee refuses to accept the property or
because the distributee cannot be found, the court may direct the
personal representative to pay or deliver the property to the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + }, to be placed in the escheat funds of the
state. The personal representative shall take the receipt of the
department { - of State Lands - } stating from whom the
property was received, a description of the property and the name
of the person entitled to the property. The person entitled
thereto may apply for and recover the property in the manner
provided for recovery of escheat funds.
SECTION 628. ORS 116.243 is amended to read:
116.243. A court clerk of any county in which the county court
has judicial functions, the clerk of any county court that has
jurisdiction over probate matters under ORS 111.075 or a court
administrator, upon request, shall furnish to an estate
administrator of the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } appointed under
ORS 113.235 the titles of estates of decedents that have remained
open for more than three years and in which no heirs, or only
persons whose right to inherit the proceeds thereof is being
contested, have appeared to claim the estate.
SECTION 629. ORS 116.253 is amended to read:
116.253. (1) Within 10 years after the death of a decedent
whose estate escheated in whole or in part to the state, or
within eight years after the entry of a judgment or order
escheating property of an estate to the state, a claim may be
made for the property escheated, or the proceeds thereof, by or
on behalf of a person not having actual knowledge of the escheat
or by or on behalf of a person who at the time of the escheat was
unable to prove entitlement to the escheated property.
(2) The claim shall be made by a petition filed with the
Director of the { - Department of State Lands - } { + Oregon
Department of Natural Resources + }. The claim is considered a
contested case as provided in ORS 183.310 and there is the right
of judicial review as provided in ORS 183.480. The petition must
include a declaration under penalty of perjury in the form
required by ORCP 1 E and shall state:
(a) The age and place of residence of the claimant by whom or
on whose behalf the petition is filed;
(b) That the claimant lawfully is entitled to the property or
proceeds, briefly describing the property or proceeds;
(c) That at the time the property escheated to the state the
claimant had no knowledge or notice thereof or was unable to
prove entitlement to the escheated property and has subsequently
acquired new evidence of that entitlement;
(d) That the claimant claims the property or proceeds as an
heir or devisee or as the personal representative of the estate
of an heir or devisee, setting forth the relationship, if any, of
the claimant to the decedent who at the time of death was the
owner;
(e) That 10 years have not elapsed since the death of the
decedent, or that eight years have not elapsed since the entry of
the judgment or order escheating the property to the state; and
(f) If the petition is not filed by the claimant, the status of
the petitioner.
(3) If it is determined that the claimant is entitled to the
property or the proceeds thereof, the director { - of the
Department of State Lands - } shall deliver the property to the
petitioner, subject to and charged with any tax on the property
and the costs and expenses of the state in connection therewith.
(4) If the person whose property escheated or reverted to the
state was at any time an inmate of a state institution in Oregon
for persons with mental illness or mental retardation, the
reasonable unpaid cost of the care and maintenance of the person
while a ward of the institution, regardless of when the cost was
incurred, may be deducted from, or, if necessary, be offset in
full against, the amount of the escheated property. The
reasonable unpaid cost of care and maintenance shall be
determined by:
(a) The Department of Human Services for patients of the
Eastern Oregon Training Center; and
(b) The Oregon Health Authority for patients of the Blue
Mountain Recovery Center and the Oregon State Hospital.
(5) For the purposes of this section, the death of the decedent
is presumed to have occurred on the date shown in the decedent's
death certificate or in any other similar document issued by the
jurisdiction in which the death occurred or issued by an agency
of the federal government.
SECTION 630. ORS 146.125 is amended to read:
146.125. (1) The medical examiner, deputy medical examiner,
district attorney or sheriff may temporarily retain possession of
any property found on the body or in the possession of the
deceased which in the opinion of the medical examiner, deputy
medical examiner, district attorney or sheriff may be useful in
establishing the cause or manner of death or may be used in
further proceedings.
(2) When a medical examiner, deputy medical examiner, district
attorney or sheriff assumes control or custody of money or
personal property found on the body or in the possession of the
deceased, the medical examiner, deputy medical examiner, district
attorney or sheriff shall:
(a) Make a verified inventory of such money or property.
(b) File the inventory in the district medical examiner's
office.
(c) Deposit the money with the county treasurer to the credit
of the county general fund.
(3) If personal property is not retained by the medical
examiner, deputy medical examiner, district attorney or sheriff,
and is not claimed within 30 days, the inventory shall be filed
with the board of county commissioners to be disposed of as
follows:
(a) If the property has value, the board may order it sold and
after deducting the cost of sale, shall deposit the proceeds of
the sale with the county treasurer to the credit of the county
general fund.
(b) If the property has no value in the judgment of the board,
the board may order the sheriff to destroy such property.
(4) Any expenses incurred by the county in transporting or
disposing of the body may be deducted from the money or proceeds
of the sale of personal property before it is delivered to a
claimant.
(5) If it appears that the person whose death required
investigation died wholly intestate and without heirs, the county
whose official has control or custody of the property shall
notify an estate administrator of the { - Department of State
Lands - } { + Oregon Department of Natural Resources + }
appointed under ORS 113.235 within 15 days after the death.
(6) If a legally qualified personal representative, spouse, or
next of kin:
(a) Claims the money of the deceased, the treasurer shall,
subject to the provisions of subsection (4) of this section,
deliver such money to the claimant.
(b) Within 30 days, claims the personal property of the
deceased, the property shall be delivered to such claimant
subject to the provisions of subsections (1) and (5) of this
section.
(7) If money of the deceased is not claimed within seven years
and is presumed abandoned as provided by ORS 98.302 to 98.436 and
98.992, the board of county commissioners shall order the money
paid as required by law.
SECTION 631. ORS 196.600 is amended to read:
196.600. As used in ORS 196.600 to 196.655:
(1) 'Compensatory mitigation' means activities conducted by a
permittee or third party to create, restore, enhance or preserve
the functions and values of the water resources of this state to
compensate for the removal-fill related adverse effects of
project development to waters of this state or to resolve
violations of ORS 196.800 to 196.905. Compensatory mitigation for
removal-fill activities does not affect permit requirements of
other state departments.
(2) 'Credit' means the measure of the increase in the functions
and values of the water resources of this state achieved at a
mitigation bank site.
(3) 'Mitigation bank' means a site created, restored, enhanced
or preserved in accordance with ORS 196.600 to 196.655 to
compensate for unavoidable adverse impacts to waters of this
state due to activities which otherwise comply with the
requirements of ORS 196.600 to 196.905.
(4) 'Mitigation bank instrument' means the legally binding and
enforceable agreement between the Director of the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } and a mitigation bank sponsor that formally
establishes the mitigation bank and stipulates the terms and
conditions of the mitigation bank's construction, operation and
long-term management.
(5) 'Off-site compensatory mitigation' means activities
conducted away from the project site that create, restore,
enhance or preserve the functions and values of the water
resources of this state in order to compensate for the adverse
impacts to waters of this state from project development.
(6) 'On-site compensatory mitigation' means activities
conducted at the project site to create, restore, enhance or
preserve the functions and values of the water resources of this
state in order to compensate for the adverse impacts to waters of
this state from project development.
(7) 'Permit action' means activity under a specific removal or
fill permit or other authorization requested or issued under ORS
196.600 to 196.905.
(8) 'Service area' means the boundaries set forth in a
mitigation bank instrument that include one or more watersheds
identified on the United States Geological Survey, Hydrologic
Unit Map - 1974, State of Oregon, for which a mitigation bank
provides credits to compensate for adverse effects from project
developments to waters of this state. Service areas for
mitigation banks are not mutually exclusive.
(9) 'Statewide Comprehensive Outdoor Recreation Plan' means the
plan created by the { - State Parks and Recreation
Department - } { + Oregon Department of Natural Resources + }
pursuant to the federal Land and Water Conservation Fund Act of
1965, as amended (16 U.S.C. 460-L et seq.).
SECTION 632. ORS 196.610 is amended to read:
196.610. Subject to approval by the State Land Board, the
Director of the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } may:
(1) Charge a fee for purchase of credits in the mitigation bank
as provided by ORS 196.600 to 196.655.
(2) Acquire or accept title to lands suitable for use in
mitigation banks or actions, or to preserve sensitive or unique
habitat in or near the waters of this state.
(3) Pay costs incurred for alterations needed to create,
restore, enhance or preserve waters of this state for purposes of
carrying out the provisions of ORS 196.600 to 196.655 or 196.800
to 196.905.
(4) Authorize payment of administrative, research or scientific
monitoring expenses of the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } in carrying out
the provisions of ORS 196.600 to 196.655 or 196.800 to 196.905.
(5) Disburse funds received under the federal Coastal Zone
Management Act of 1972, as amended (16 U.S.C. 1451 et seq.), for
such purposes as specifically stipulated in a grant award.
(6) Receive funds under the federal Emergency Wetlands
Resources Act of 1986, P.L. 99-645, for the voluntary acquisition
of wetlands and interests therein according to the wetlands
provisions of the Statewide Comprehensive Outdoor Recreation
Plan. Funds received under the federal Emergency Wetlands
Resources Act of 1986, P.L. 99-645, shall be used for
nonmitigation complementary purposes and programs of ORS 196.600
to 196.655.
SECTION 633. ORS 196.615 is amended to read:
196.615. (1) In accordance with the provisions of ORS 196.600
to 196.655, upon the approval of the State Land Board, the
Director of the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } shall initiate and implement
a program for mitigation banks. The director shall encourage the
development of and the expeditious approval of mitigation banks
and other types of compensatory mitigation.
(2) Subject to the approval of the State Land Board, the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } shall adopt, by rule, standards and
criteria for the site selection process, operation and evaluation
of mitigation banks. Criteria to be considered shall include but
need not be limited to:
(a) Historical trends relating to the waters of this state,
including the estimated rate of current and future losses of the
respective types of waters of this state.
(b) The contributions of the waters of this state to:
(A) Wildlife, migratory birds and resident species;
(B) Commercial and sport fisheries;
(C) Surface and ground water quality and quantity, and flood
moderation;
(D) Outdoor recreation including enhancement of scenic
waterways; and
(E) Scientific and research values.
(c) Regional economic needs.
(3) The rules adopted by the department under this section must
also include:
(a) Guidelines for the use of mitigation banks to compensate
for adverse effects of project development or to resolve
violations of ORS 196.800 to 196.905 related to waters of this
state; and
(b) Guidelines for allowing a permittee or third party to
create a mitigation bank or to conduct compensatory mitigation in
order to create, restore, enhance or preserve water resources of
this state.
(4) For each mitigation bank, the department shall establish a
well-defined plan, including preliminary objectives, inventory of
resource values and an evaluation and monitoring program.
SECTION 634. ORS 196.620 is amended to read:
196.620. (1) For each mitigation bank, the { - Department of
State Lands - } { + Oregon Department of Natural Resources + }
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),
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 - } { + Oregon Department of
Natural Resources + } 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 635. ORS 196.623 is amended to read:
196.623. (1) The { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } may approve a
watershed enhancement program and certify the project as a
mitigation bank under ORS 196.600 to 196.655 if the watershed
enhancement program complies with the rules adopted by the
department under ORS 196.615 for certification of a program as a
mitigation bank.
(2) A person, state agency, federal agency, federally
recognized Indian tribe, watershed council or political
subdivision in this state that owns land upon which is located a
watershed enhancement program that qualifies as a mitigation bank
under subsection (1) of this section may sell mitigation credit
from the mitigation bank subject to ORS 196.600 to 196.655 and
the rules of the department { - of State Lands - } adopted
under ORS 196.600 to 196.655.
SECTION 636. ORS 196.625 is amended to read:
196.625. (1) The Director of the { - Department of State
Lands - } { + Oregon Department of Natural Resources + } shall
maintain a record of fill and removal activities and actions for
each mitigation bank implemented and conduct monitoring of
mitigation banks with moneys from the Oregon Removal-Fill
Mitigation Fund.
(2) The director shall provide annual reports to the State Land
Board on moneys spent and received for each mitigation bank.
SECTION 637. ORS 196.630 is amended to read:
196.630. Subject to the approval of the State Land Board, the
Director of the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } shall adopt rules according
to the provisions of ORS chapter 183 to carry out the provisions
of ORS 196.600 to 196.655.
SECTION 638. ORS 196.635 is amended to read:
196.635. (1) The provisions of ORS 196.600 to 196.655 shall be
carried out by the Director of the { - Department of State
Lands. The Department of State Lands - } { + Oregon Department
of Natural Resources. The Oregon Department of Natural
Resources + } shall solicit, but not be bound by, comments from
the { - State Department of Fish and Wildlife, - } Department
of Transportation, { - Department of Land Conservation and
Development, - } Department of Environmental Quality, Oregon
Business Development Department, federal natural resources and
regulatory agencies, affected local governments and special
districts, conservation organizations and other interested
parties. All comments shall be in writing and provided to the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } and mitigation bank sponsor within 30 days
of solicitation by the
{ - Department of State Lands - } { + department + }. If
comments are not received by the { - Department of State
Lands - } { + department + } from a state agency or from an
affected local government or special district within 30 days of
solicitation, the director shall assume that the state agency,
local government or special district does not desire to provide
comments.
(2) In cooperation with the parties in subsection (1) of this
section, the director, in consultation with the State Land Board,
shall:
(a) Review opportunities for inclusion of appropriate wetlands
in the Statewide Comprehensive Outdoor Recreation Plan.
(b) Develop and recommend a wetlands priority plan for
inclusion in the Statewide Comprehensive Outdoor Recreation Plan.
The wetlands priority plan shall be complementary to the purposes
and programs under ORS 196.600 to 196.655.
(3) The director shall { - confer with the Oregon Watershed
Enhancement Board to - } develop criteria to certify watershed
enhancement projects as mitigation banks.
SECTION 639. ORS 196.640 is amended to read:
196.640. (1) The Oregon Removal-Fill Mitigation Fund is
established, separate and distinct from the General Fund. All
moneys received under ORS 196.645 shall be paid into the State
Treasury and credited to the Oregon Removal-Fill Mitigation Fund.
All moneys in the fund are { - appropriated continuously to the
Department of State Lands - } { + continuously appropriated to
the Oregon Department of Natural Resources + } to be used by the
department as set forth in ORS 196.650. The moneys in the fund
may be invested and reinvested as provided in ORS 293.701 to
293.820. Interest earned by the fund shall be credited to the
fund.
(2) The department shall keep a record of all moneys deposited
in the fund. The record shall indicate by separate cumulative
accounts the source from which the moneys are derived and the
individual activity or program against which each withdrawal is
charged.
(3) The department shall publish annually the record of moneys
deposited in and removed from the fund.
(4) The department may adopt rules for prioritizing
expenditures from the fund for the purposes specified in ORS
196.650.
SECTION 640. ORS 196.645 is amended to read:
196.645. The following moneys shall be paid into the Oregon
Removal-Fill Mitigation Fund:
(1) Any moneys appropriated for that purpose by the Legislative
Assembly;
(2) Moneys received from conditions imposed on a permit,
authorizations or resolutions of violations, except civil
penalties, involving compensatory mitigation in which the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } is the party responsible for the
compensatory mitigation;
(3) Moneys awarded for such purposes as specifically stipulated
under grants through the federal Emergency Wetlands Resources Act
of 1986, P.L. 99-645, or the federal Coastal Zone Management Act
of 1972, 16 U.S.C. 1451 et seq., as amended;
(4) Moneys obtained by gift, bequest, donation or grant from
any other public or private source for the purposes of ORS
196.600 to 196.655 or 196.800 to 196.905;
(5) Repayment of moneys from the fund, including interest on
such moneys; and
(6) Moneys obtained from interest or other earnings from
investments of moneys in the fund.
SECTION 641. ORS 196.650 is amended to read:
196.650. The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } may use the moneys in the
Oregon Removal-Fill Mitigation Fund for the following purposes:
(1) For the voluntary acquisition of land or interests therein
suitable for use in mitigation banks.
(2) To pay for specific projects to create, restore, enhance or
preserve water resources of this state for purposes of carrying
out the provisions of ORS 196.600 to 196.905. Moneys deposited in
the fund for impacts to the waters of this state may be used only
for projects that create, restore, enhance or preserve water
resources of this state.
(3) For the implementation of long-term protection measures
related to projects that create, restore, enhance or preserve
water resources of this state.
(4) For purchase of credits from approved mitigation banks.
(5) For payment of administrative, research or scientific
monitoring expenses of the department in carrying out the
provisions of ORS 196.600 to 196.655.
(6) For the disbursal of funds received under the federal
Coastal Zone Management Act of 1972, as amended (16 U.S.C. 1451
et seq.), for such purposes as specifically stipulated in a grant
award.
(7) For the disbursal of funds received under the federal
Emergency Wetlands Resources Act of 1986, P.L. 99-645, for the
voluntary acquisition of wetlands and interests therein as
identified in the wetlands provisions of the Statewide
Comprehensive Outdoor Recreation Plan.
SECTION 642. ORS 196.655 is amended to read:
196.655. As part of the report to the State Land Board required
under ORS 196.885, the Director of the { - Department of State
Lands - } { + Oregon Department of Natural Resources + } shall
prepare an annual report on the Oregon Removal-Fill Mitigation
Fund. The report shall include, but need not be limited to:
(1) The financial status of the fund;
(2) Creation, restoration, enhancement or preservation
activities and credits sold, granted or otherwise disposed of or
remaining in mitigation banks established under ORS 196.600 to
196.655;
(3) Portions of the waters of this state, including but not
limited to wetlands, acquired with moneys in the fund;
(4) Compensatory mitigation projects financed with moneys in
the fund; and
(5) For each mitigation bank, a summary of activities,
including but not limited to:
(a) A description of the location, size, number of potential
credits and credits withdrawn for each specific permit action;
and
(b) The status of all mitigation bank activities pending or
completed during the past year.
SECTION 643. ORS 196.674 is amended to read:
196.674. (1) The { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } shall compile and
maintain a comprehensive Statewide Wetlands Inventory.
(2) In compiling the Statewide Wetlands Inventory, the
department shall develop, by rule, a system for uniform wetland
identification, delineation and comprehensive mapping. Initial
inventories shall be based upon the National Wetlands Inventory
prepared by the United States Department of the Interior, Fish
and Wildlife Service. The { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } shall consult
with the public, local governments and affected state and federal
agencies concerning the accuracy of the inventory.
(3) The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } shall revise the inventory
maps as new or more complete information becomes available.
(4) The department { - of State Lands - } shall provide each
city and county planning office with copies of the Statewide
Wetlands Inventory covering the local jurisdiction.
(5) The department { - of State Lands - } shall provide each
state agency with a copy of the inventory upon request.
(6) Copies of the Statewide Wetlands Inventory shall be made
available to the general public, through the department { - of
State Lands - } , upon payment of a fee to offset administrative
and reproduction costs.
(7) A wetland inventory developed by another party may be
utilized by the department { - of State Lands - } if it is
consistent with standards adopted pursuant to this section, after
consulting with the affected local government, and is reviewed
and approved by the department { - of State Lands - } as
complying with the standards adopted pursuant to subsection (2)
of this section.
(8) Nothing in this section shall restrict the regulatory
jurisdiction of the department { - of State Lands - } under
ORS 196.800 to 196.905.
(9) In compiling and updating the Statewide Wetlands Inventory,
the department { - of State Lands - } shall identify
opportunities for wetland creation, restoration and enhancement
when the information is available.
SECTION 644. ORS 196.676 is amended to read:
196.676. The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } shall respond to the notice
received from local governments pursuant to ORS 215.418 (1) and
227.350 (1) within 30 days of receipt of the notice. The response
shall state whether a permit is or in the future will be required
or whether a permit has been issued by the department for the
activity which is subject to notice.
SECTION 645. ORS 196.678 is amended to read:
196.678. (1) Any city or county may develop and submit to the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } a wetland conservation plan for review
pursuant to the provisions of ORS 196.678 to 196.684.
(2) A wetland conservation plan shall include the following
elements:
(a) A description and maps of the area to be covered by the
plan;
(b) A detailed inventory of the wetlands, identifying the
location, quality and quantity of the wetland resource and the
source of the water for the wetlands within the area covered by
the plan;
(c) An assessment of wetland functions and values, including an
historical analysis of wetland degradation, alterations and
losses;
(d) Designation of wetland areas for protection, conservation
or development. Wetlands within areas designated for development
shall be delineated to determine regulatory boundaries;
(e) A mitigation plan, including a program for replacement of
planned wetland losses and restoration of lost functions and
values through creation of new wetlands or enhancement of
existing wetland areas which designates specific sites within the
plan area and actions for restoration and enhancement;
(f) Policies and implementing measures establishing protection,
conservation and best use of the wetlands in the plan area;
(g) Specification of sites for fill or removal, or both, and
the conditions and procedures under which fill or removal, or
both, may occur;
(h) Monitoring provisions that insure the wetland mitigation
measures are implemented and mitigation goals are achieved;
(i) Identification of public uses of the wetlands and waters
and conflicting planned uses; and
(j) Specification of buffer areas and uses allowed on lands
which are adjacent to wetlands and which are necessary to
maintain, protect or restore wetland functions and values.
(3) The proposed wetland conservation plan shall be adopted by
the affected local government according to the procedures set
forth in ORS 197.610 to 197.625.
SECTION 646. ORS 196.681 is amended to read:
196.681. (1) In accordance with rules adopted pursuant to this
chapter, the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } shall:
(a) Review any proposed wetland conservation plan or proposed
amendment to an approved wetland conservation plan against the
standards in this section;
(b) Prepare a proposed order that approves, approves with
conditions or denies the proposed wetland conservation plan or
proposed amendment to an approved wetland conservation plan;
(c) Provide notice and the opportunity for public hearing and
comment on the proposed order;
(d) Consult with affected local, state and federal agencies;
and
(e) Consider the applicable findings made in the order of
acknowledgment issued by the { - Land Conservation and
Development Commission - } { + Oregon Natural Resources
Commission + }.
(2) The Director of the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } may approve by
order a wetland conservation plan that includes the necessary
elements of ORS 196.678 (2) and meets the standards of
subsections (3) and (4) of this section.
(3) A wetland conservation plan shall comply with the following
standards:
(a) Uses and activities permitted in the plan including fill or
removal, or both, conform to sound policies of conservation and
will not interfere with public health and safety;
(b) Uses and activities permitted in the plan including fill or
removal, or both, are not inconsistent with the protection,
conservation and best use of the water resources of this state
and the use of state waters for navigation, fishing and public
recreation; and
(c) Designation of wetlands for protection, conservation and
development is consistent with the resource functions and values
of the area and the capability of the wetland area to withstand
alterations and maintain important functions and values.
(4) Wetland areas may be designated for development including
fill or removal, or both, only if they meet the following
standards:
(a) There is a public need for the proposed uses set forth in
the acknowledged comprehensive plan for the area;
(b) Any planned wetland losses shall be fully offset by
creation, restoration or enhancement of wetland functions and
values or in an estuarine area, estuarine resource replacement is
consistent with ORS 196.830; and
(c) Practicable, less damaging alternatives, including
alternative locations for the proposed use are not available.
(5) Approval by the director of a wetland conservation plan
shall be conditioned upon adoption by the affected local
governments of comprehensive plan policies and land use
regulations consistent with and sufficient to implement the
wetland conservation plan. Appropriate implementing measures may
include the following planning and zoning requirements
regulating:
(a) Adjacent lands or buffer areas necessary to maintain,
protect or restore wetland functions and values, including
riparian vegetation, and the uses to be allowed in those areas;
(b) Sites for mitigation of impacts from development
activities;
(c) Upland areas adjacent to wetlands; and
(d) Activities or location of buildings, structures and
improvements which may affect wetland values or functions, such
as storm water runoff.
(6) The director shall issue an order approving, approving with
conditions or denying a wetland conservation plan, including a
clear statement of findings which sets forth the basis for the
approval, conditioning or denial. The order shall include:
(a) A clear statement of findings that the elements specified
in ORS 196.678 (2) have been developed;
(b) The findings in support of the determination of compliance
or noncompliance with the standards in subsections (3) and (4) of
this section; and
(c) The conditions under which fill or removal or both may
occur.
(7) The director may, as a part of an order approving a plan,
authorize site-specific fill or removal without an individual
permit as required by ORS 196.810 provided that:
(a) The director adopts findings demonstrating that fill or
removal for any proposed project complies with ORS 196.682 (1)(a)
to (e); or
(b) The director adopts findings that specific areas of fill or
removal within areas designated as development in the plan meet
the following standards:
(A) The fill or removal approved by the order will result in
minimal impacts to the wetland system in the planning area;
(B) The public need for the proposed area of fill or removal
outweighs the environmental damage likely to result from full
development;
(C) The director conditions any such order as necessary to
ensure that the fill or removal, or both, is designed to minimize
impacts from implementing the project; and
(D) Full replacement of wetland losses is provided through
creation, restoration or enhancement of wetlands with comparable
functions and values.
(8) Upon a finding by the director that a fill or removal, or
both, authorized under subsection (7)(b) of this section has
caused or is likely to cause more than minimal adverse impact to
the wetland system considering required mitigation conditions,
the director shall revise the order to require individual permit
review according to ORS 196.682 or provide additional conditions
to ensure that adverse impacts are minimal. Such revision shall
not be subject to ORS 196.684.
SECTION 647. 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 - } { + Oregon
Department of Natural Resources + }, 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), the { - Department of State
Lands - } { + Oregon Department of Natural Resources + } 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 648. ORS 196.684 is amended to read:
196.684. (1) Local governments shall provide notice to the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } of any proposed amendments to the land use
plan and ordinances affecting lands subject to a wetland
conservation plan approved under this section.
(2) Amendments to plan policies, maps and implementing
ordinances by the local government within an approved wetland
conservation plan shall be reviewed by the department against the
requirements of this section. These provisions do not exempt
local governments from the provisions of ORS 197.610 to 197.625.
(3) The Director of the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } shall provide
notice and the opportunity for public comment and hearing as
defined by rule on the matter of including the amendment in the
wetland conservation plan.
(4) If the director finds that the proposed local government
amendment to acknowledged comprehensive plan and land use
regulations meets the requirements of ORS 196.681, the director
shall approve the plan by order, and notify the local government
within 10 days of the completion of the public review provided in
subsection (3) of this section.
(5) If the amendments to acknowledged comprehensive plan and
land use regulations adopted by the local government are
determined not to comply with the requirements of ORS 196.668 to
196.692, 196.800, 196.810, 196.825, 196.830, 196.850 to 196.860,
196.885, 196.905, 197.015, 197.279, 215.213, 215.283, 215.284,
215.418 and 227.350, the director shall revoke the approval order
or amend the order to { - insure - } { + ensure + }
compliance with the requirements of ORS 196.668 to 196.692,
196.800, 196.810, 196.825, 196.830, 196.850 to 196.860, 196.885,
196.905, 197.015, 197.279, 215.213, 215.283, 215.284, 215.418 and
227.350.
(6) The department shall review each approved wetland
conservation plan every five years. After such review the
director shall either modify, reissue or rescind the order
approving the plan.
(7) In conducting the five-year review of an approved wetland
conservation plan, the director shall provide notice and the
opportunity for public comment and hearing on whether:
(a) There has been a substantial change in circumstances that
would affect the wetland resources subject to the plan and would
adversely affect the compliance of the plan with the standards in
ORS 196.681;
(b) Changes have been made in applicable state law, statewide
land use planning goals, federal law or agency rules that require
the plan to be changed; and
(c) In the director's evaluation, the plan as implemented over
the preceding five years meets the goals established in the plan.
(8) Wetland conservation plans approved by the director
{ - of the Department of State Lands - } pursuant to ORS
196.668 to 196.692 shall be deemed to comply with the
requirements of any statewide planning goals relating to
wetlands, other than estuarine wetlands, for those areas, uses
and activities which are regulated by the plan.
{ - (9) An order by the director regarding approval,
amendment or review of a wetland conservation plan shall be
reviewable by the Land Use Board of Appeals as a land use
decision of a state agency. For the purpose of such review, the
director's order shall not become final until the local
government adopts its wetland conservation plan or plan
amendment. The Land Use Board of Appeals shall consolidate for
review appeals of the director's order and the local government
adoption. The Land Use Board of Appeals shall review such order
for compliance with the requirements of ORS 196.668 to 196.692,
196.800, 196.810, 196.825, 196.830, 196.850 to 196.860, 196.885,
196.905, 197.015, 197.279, 215.213, 215.283, 215.284, 215.418 and
227.350. - }
{ - (10) - } { + (9) + } Nothing in this section shall be
construed to require a contested case proceeding regarding
approval, amendment or review of a wetland conservation plan.
{ - (11) - } { + (10) + } Nothing in this section shall be
construed to affect the evaluation of a permit application in
areas that do not have a wetland conservation plan.
{ - (12) - } { + (11) + } Upon a finding by the director,
after a public hearing, that an affected local government is not
enforcing the comprehensive plan provisions or land use
regulations set forth in the conditions of the order, as
specified in ORS 196.681 (5), and that such lack of enforcement
has resulted or would result in adverse impacts to wetlands, the
director shall modify, suspend or revoke approval of the wetland
conservation plan.
SECTION 649. 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 - } { + Oregon Department of Natural
Resources + } 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 - } { + Oregon
Department of Natural Resources + } 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), 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 650. ORS 196.687 is amended to read:
196.687. (1) Notwithstanding the provisions of ORS 196.600 to
196.905, state or local governments shall not prohibit or
restrict the alteration or fill of wetland areas up to one acre
in size that have been artificially created from upland for the
purpose of controlling, storing or maintaining storm water.
(2) An area that was developed as a storm water detention or
retention facility as a condition of a development approval shall
not be altered or filled without acceptance by the approving
authority of a plan to mitigate the loss of functional
capabilities of the detention or retention facility.
(3) Until a local government adopts an ordinance to conform its
comprehensive plan and land use regulations to the provisions of
this section, the provisions of subsection (1) of this section
shall apply directly to proposed activities in wetland areas. Any
portion of a goal, rule, comprehensive plan, land use regulation
or ordinance not in conformance with the provisions of this
section on September 9, 1995:
(a) Shall not be implemented or enforced; and
(b) Has no legal effect.
(4) The provisions of this section do not apply to land used to
mitigate the loss of wetlands.
(5) If the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } assumes responsibility under
33 U.S.C. s1344(g) of the Federal Water Pollution Control Act,
ORS 196.600 to 196.905 shall apply to artificially created
wetlands described in subsections (1) and (2) of this section.
SECTION 651. ORS 196.688 is amended to read:
196.688. (1) The { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } shall develop a
public information program to educate permit applicants and the
general public about:
(a) Wetland functions and values.
(b) The status and trends of Oregon's wetlands.
(c) The Statewide Wetlands Inventory.
(d) Wetland regulation.
(2) Upon request, the department shall, within the limits of
staffing ability, provide technical assistance to other state
agencies and local governments and the public in identifying and
delineating the boundaries of wetlands.
SECTION 652. ORS 196.692 is amended to read:
196.692. (1) The { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } shall adopt rules
to carry out the provisions of ORS 196.668 to 196.692, 196.800,
196.810, 196.818, 196.825, 196.830, 196.850 to 196.860, 196.885,
196.905, 197.015, 197.279, 215.213, 215.283, 215.284, 215.418 and
227.350.
(2) Rules adopted pursuant to subsection (1) of this section
shall include rules governing the application for and issuance of
permits to remove material from the beds or banks of any waters
of this state or to fill any waters of this state including, but
not limited to, clear and objective standards and criteria for
determining whether to grant or deny a permit.
SECTION 653. ORS 196.795 is amended to read:
196.795. (1) The { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } shall continue to
pursue methods to streamline the process for administering
permits for the removal of material from the bed or banks of any
waters of this state or for filling the waters of this state,
reducing paperwork, eliminating duplication, increasing certainty
and timeliness and enhancing resource protection. The efforts of
the department { - of State Lands - } shall include but need
not be limited to applying to the United States Army Corps of
Engineers for a state program general permit as authorized in
federal regulations implementing section 404 of the Federal Water
Pollution Control Act, and section 10 of the Rivers and Harbors
Act of 1899, as amended. In conjunction with these activities,
the department { - of State Lands - } may continue to
investigate the possibility of assuming the federal regulatory
program under 33 U.S.C. 1344(g) of the Federal Water Pollution
Control Act.
(2) The department shall report periodically to the appropriate
legislative committee on the progress in implementing subsection
(1) of this section.
SECTION 654. ORS 196.805 is amended to read:
196.805. (1) The protection, conservation and best use of the
water resources of this state are matters of the utmost public
concern. Streams, lakes, bays, estuaries and other bodies of
water in this state, including not only water and materials for
domestic, agricultural and industrial use but also habitats and
spawning areas for fish, avenues for transportation and sites for
commerce and public recreation, are vital to the economy and
well-being of this state and its people. Unregulated removal of
material from the beds and banks of the waters of this state may
create hazards to the health, safety and welfare of the people of
this state. Unregulated filling in the waters of this state for
any purpose, may result in interfering with or injuring public
navigation, fishery and recreational uses of the waters. In order
to provide for the best possible use of the water resources of
this state, it is desirable to centralize authority in the
Director of the { - Department of State Lands - } { + Oregon
Department of Natural Resources + }, and implement control of the
removal of material from the beds and banks or filling of the
waters of this state.
(2) The director shall take into consideration all beneficial
uses of water including streambank protection when administering
fill and removal statutes.
(3) There shall be no condemnation, inverse condemnation, other
taking, or confiscating of property under ORS 196.600 to 196.905
without due process of law.
(4) The director shall delineate wetlands in accordance with
the United States Army Corps of Engineers Wetlands Delineation
Manual of 1987, or subsequent federal manual as adopted by rule
by the director, and applicable guidance issued by the United
States Army Corps of Engineers for the area in which the wetlands
are located.
(5) The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } shall give priority to the
review of wetland delineation reports submitted with or in
advance of an application for fill or removal of material from
the waters of this state.
SECTION 655. 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 - } { + Oregon Department of Natural Resources + }, 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), 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 - } { + Oregon
Department of Natural Resources + } 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
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 - } { + Oregon Department of
Natural Resources + } 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.
(d) Does not relieve the person from payment of a fee
calculated in the manner provided in ORS 196.815.
SECTION 656. ORS 196.810, as amended by section 2, chapter 516,
Oregon Laws 2001, section 97, chapter 14, Oregon Laws 2003,
section 64, chapter 71, Oregon Laws 2007, section 5, chapter 625,
Oregon Laws 2007, and section 15, chapter 849, Oregon Laws 2007,
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 - } { + Oregon Department of Natural Resources + }, 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) A permit is not required under paragraph (a) of this
subsection for prospecting or other nonmotorized activities
resulting in the removal from or fill of less than one cubic yard
of material at any one individual site and, cumulatively, not
more than five cubic yards of material within a particular stream
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 (a) of this
subsection.
(c) A permit is not required under paragraph (a) of this
subsection for construction or maintenance of fish passage and
fish screening structures associated with irrigation ditches or
the maintenance of drainage ditches that are constructed,
operated or maintained under ORS 498.306, 498.316, 498.326 or
509.600 to 509.645.
(d) Nothing in this section limits or otherwise changes the
exemptions under ORS 196.905.
(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, a contract, permit or lease may not 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 - } { + Oregon Department of
Natural Resources + } 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.
(d) Does not relieve the person from payment of a fee
calculated in the manner provided in ORS 196.815.
(5) As used in this section:
(a) 'Bed' means the land within the wet perimeter and any
adjacent nonvegetated dry gravel bar.
(b) 'Prospecting' means searching or exploring for samples of
gold, silver or other precious minerals, using nonmotorized
methods, from among small quantities of aggregate.
(c) '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.
SECTION 657. ORS 196.815 is amended to read:
196.815. (1) A person who is required to have a permit to
remove material from the bed or banks or fill any waters of this
state shall file a written application with the Director of the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } for each individual project before
performing any removal or fill.
(2)(a) Each application under subsection (1) of this section
must be accompanied by a base fee in accordance with the
following schedule:
(A) For a removal by a private operator, or a person
contracting to perform services for a private operator, $85.
(B) For a removal by a public body, $250.
(C) For a removal by a commercial operator, $250.
(D) For a fill by a private operator, or a person contracting
to perform services for a private operator, $250.
(E) For a fill by a public body, $620.
(F) For a fill by a commercial operator, $620.
(G) For erosion-flood repair, including riprap, no fee.
(b) In addition to the base fee for removal established under
paragraph (a) of this subsection, each applicant shall also pay
as part of the application fee the following fee based on the
volume of removal material:
(A) Less than 500 cubic yards, no volume fee.
(B) 500 to less than 5,000 cubic yards, $125.
(C) 5,000 to less than or equal to 50,000 cubic yards, $250.
(D) Over 50,000 cubic yards, $375.
(c) In addition to the base fee for fill established under
paragraph (a) of this subsection, each applicant shall also pay
as part of the application fee the following fee based on the
volume of fill material:
(A) Less than 500 cubic yards, no volume fee.
(B) 500 to less than 3,000 cubic yards, $125.
(C) 3,000 to less than or equal to 10,000 cubic yards, $250.
(D) Over 10,000 cubic yards, $375.
(d) The { - department - } { + Oregon Department of Natural
Resources + } may establish by rule a volume-based fee for the
commercial removal of sand and gravel from the waters of this
state for use in administering the provisions of the fill and
removal law in this state.
(e) For the purposes of this subsection:
(A) 'Private operator' means any person undertaking a project
for exclusively a nonincome-producing and nonprofit purpose;
(B) 'Public body' means federal, state, and local governmental
bodies, unless specifically exempted by law, engaged in projects
for the purpose of providing free public services;
(C) 'Commercial operator' means any person undertaking a
project having financial profit as a goal;
(D) 'Riprap' means the facing of a streambank with rock or
similar substance to control erosion in accordance with rules
adopted by the department { - of State Lands - } ; and
(E) 'Erosion-flood repair' means riprap or any other work
necessary to preserve existing facilities and land from flood and
high streamflows, in accordance with regulations promulgated by
the department.
(3) For each application that involves both removal and
filling, the application fee assessed shall be either for removal
or filling, whichever is higher according to the fee schedule in
subsection (2) of this section.
(4) The department may waive the fees specified in subsection
(2) of this section for a permit that will be used to perform a
voluntary habitat restoration project.
(5) A person who receives an emergency authorization under ORS
196.810 to remove material from the beds or banks of any waters
of this state or to fill any waters of this state shall, within
45 days after receiving the authorization, submit a fee to the
department calculated in the manner provided under this section
for permit applications.
(6) Each holder of a material removal or fill permit shall pay
a fee during the term of the permit in accordance with the
schedule set forth in subsection (2) of this section, except that
the applicant shall pay only the base fee. For multiyear permits
valid over a period of more than one year, the department may
assess a one-time fee that covers all fees due under subsection
(2) of this section for the period of the permit. The permit
shall be suspended during any period of delinquency of payment as
though no permit was applied for. Notwithstanding this subsection
the director may, before granting a renewal of the permit,
require the permittee to show that the continued exercise of the
permit is consistent with the protection, conservation and best
use of the water resources of this state.
(7) Fees received under this section shall be credited to the
Common School Fund for use by the department in administration of
ORS 196.600 to 196.905.
(8) The director shall issue an order revising the fees
specified in this section on January 1 of each year, beginning in
2009, based on changes in the Portland-Salem, OR-WA Consumer
Price Index for All Urban Consumers for All Items as published by
the Bureau of Labor Statistics of the United States Department of
Labor. The director shall round the amount of each fee to the
nearest dollar. The revised fees shall take effect January 1 and
apply for that calendar year.
SECTION 658. ORS 196.817 is amended to read:
196.817. (1)(a) Notwithstanding ORS 196.810, the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } may establish by rule a removal or fill
general permit:
(A) For processing applications on a statewide or geographic
basis; or
(B) For an applicant or group of applicants to cover activities
that are substantially similar in nature, are recurring or
ongoing, and have predictable effects and outcomes.
(b) The department must find that the project is in compliance
with the review standards set forth in ORS 196.600 to 196.905 and
would not result in long-term harm to water resources of this
state.
(c) The department shall condition any such general permit upon
actions necessary to minimize environmental effects.
(2) Any person proposing to conduct an action under a general
permit shall apply to the department in accordance with
procedures set forth by the department by rule.
(3) The department shall amend or rescind any general permit
upon a determination that the activities conducted under the
permit have resulted in or would result in unacceptable
individual or cumulative environmental effects or long-term harm
to the water resources of this state.
(4) Any person proposing to conduct an action under a general
permit shall pay the applicable fee required under ORS 196.815
for individual permit applications.
SECTION 659. ORS 196.818 is amended to read:
196.818. (1) A person or governmental body must pay to the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } a nonrefundable fee of $350 when submitting
a wetland delineation report to the department for a
determination of:
(a) Whether waters of this state are present on a specific land
parcel;
(b) Where the boundaries of waters of this state are located on
a land parcel; or
(c) Whether the waters of this state or a proposed activity in
the waters of this state is subject to permit requirements.
(2) The department shall review the wetland delineation report
submitted under subsection (1) of this section within 120 days
after submission of the wetland delineation report to the
department.
(3) The fee described in subsection (1) of this section is in
addition to any permit application fee required under ORS
196.815. A person or governmental body submitting a revised
report to replace a previously rejected report must pay an
additional nonrefundable fee of $100.
(4) The Director of the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } shall issue an
order revising the fee specified in subsection (1) of this
section on January 1 of each year, based on changes in the
Portland-Salem, OR-WA Consumer Price Index for All Urban
Consumers for All Items as published by the Bureau of Labor
Statistics of the United States Department of Labor. The director
shall round the amount to the nearest dollar. The revised fee
shall take effect January 1 and apply for that calendar year.
(5) Fees received under this section shall be credited to the
Common School Fund for use by the department in administration of
ORS 196.600 to 196.905.
SECTION 660. ORS 196.820 is amended to read:
196.820. (1) Notwithstanding any provision of ORS 196.600 to
196.905 to the contrary, except as provided in subsection (2) of
this section, the Director of the { - Department of State
Lands - } { + Oregon Department of Natural Resources + } shall
not issue any permit to fill Smith Lake or Bybee Lake, located in
Multnomah County, below the contour line which lies 11 feet above
mean sea level as determined by the 1947 adjusted United States
Coastal Geodetic Survey Datum.
(2) Notwithstanding the provision of subsection (1) of this
section, the director { - of the Department of State Lands - }
may issue a permit to fill Smith Lake or Bybee Lake, located in
Multnomah County, if such fill is to enhance or maintain fish and
wildlife habitat at or near Smith Lake or Bybee Lake. A fill
shall be considered to be for the purpose of enhancing or
maintaining fish and wildlife habitat { - if the proposed fill
is approved by the State Department of Fish and Wildlife - } .
SECTION 661. ORS 196.825 is amended to read:
196.825. (1) The Director of the { - Department of State
Lands - } { + Oregon Department of Natural Resources + } 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) 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) 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) 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) The director may request comment from interested parties
and adjacent property owners on any application for a permit. 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.
(6) 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.
(7) 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 - }
{ + Oregon Department of Natural Resources + } receives the
application. If the director determines that an application is
complete, the director shall distribute the application for
comment pursuant to subsection (4) of this section. 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) of
this section; or
(B) The applicant and the director agree to a longer time
period.
(8) 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 - } { + as + } 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) 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) of this section if the permit action
requires certification under the Federal Water Pollution Control
Act (P.L. 92-500), as amended.
(10) 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) As used in this section:
(a) 'Applicant' means a landowner or person authorized by a
landowner to conduct a removal or fill activity.
(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.
SECTION 662. ORS 196.830 is amended to read:
196.830. (1) As used in this section, 'estuarine resource
replacement' means the creation, restoration or enhancement of an
estuarine area to maintain the functional characteristics and
processes of the estuary, such as its natural biological
productivity, habitats and species diversity, unique features and
water quality.
(2) Except as provided in subsection (4) of this section, the
Director of the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } shall require estuarine
resource replacement as a condition of any permit for filling or
removal of material from an intertidal or tidal marsh area of an
estuary.
(3) If the director requires estuarine resource replacement,
the director shall consider:
(a) The identified adverse impacts of the proposed activity;
(b) The availability of areas in which replacement activities
could be performed;
(c) The provisions of land use plans for the area adjacent to
or surrounding the area of the proposed activity;
(d) The recommendations of any interested or affected state or
local agencies; and
(e) The extent of compensating activity inherent in the
proposed activity.
(4) Notwithstanding any provisions of this chapter and ORS
chapters 195 and 197 or the statewide planning goals adopted
thereunder to the contrary, the director may:
(a) Waive estuarine resource replacement in part for an
activity for which replacement would otherwise be required if,
after consultation with appropriate state and local agencies the
director determines that:
(A) There is no alternative manner in which to accomplish the
purpose of the project;
(B) There is no feasible manner in which estuarine resource
replacement could be accomplished;
(C) The economic and public need for the project and the
economic and public benefits resulting from the project clearly
outweigh the potential degradation of the estuary;
(D) The project is for a public use; and
(E) The project is water dependent or the project is publicly
owned and water related; or
(b) Waive estuarine resource replacement wholly or in part for
an activity for which replacement would otherwise be required if
the activity is:
(A) Filling for repair and maintenance of existing functional
dikes and negligible physical or biological damage to the tidal
marsh or intertidal areas of the estuary will result;
(B) Riprap to allow protection of an existing bankline with
clean, durable erosion resistant material when a need for riprap
protection is demonstrated that cannot be met with natural
vegetation and no appreciable increase in existing upland will
occur;
(C) Filling for repair and maintenance of existing roads and
negligible physical or biological damage to the tidal marsh or
intertidal areas of the estuary will result;
(D) Dredging for authorized navigation channels, jetty or
navigational aid installation, repair or maintenance conducted by
or under contract with the Army Corps of Engineers;
(E) Dredging or filling required as part of an estuarine
resource restoration or enhancement project agreed to by local,
state and federal agencies; or
(F) A proposed alteration that would have negligible adverse
physical or biological impact on estuarine resources.
(5) Nothing in this section is intended to limit the authority
of the director to impose conditions on a permit under ORS
196.825.
SECTION 663. ORS 196.835 is amended to read:
196.835. Any person aggrieved or adversely affected by the
grant of a permit by the Director of the { - Department of
State Lands - } { + Oregon Department of Natural Resources + }
may file a written request for hearing with the director within
21 days after the date the permit was granted. If the director
finds that the person making the written request has a legally
protected interest which is adversely affected by the grant of
the permit, the director shall set the matter down for hearing
within 30 days after receipt of the request. The hearing shall be
conducted as a contested case in accordance with ORS 183.415 to
183.430, 183.440 to 183.460 and 183.470. The permittee shall be a
party to the proceeding. Within 45 days of the 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 original order. Appeals from the director's final
order may be taken to the Court of Appeals in the manner provided
by ORS 183.482. A permit to fill granted by the director may be
suspended by the director during the pendency of the proceedings
before the director and any appeal. The director shall not
suspend the permit unless the person aggrieved or adversely
affected by grant of permit makes a showing before the director
by clear and convincing evidence that commencement or
continuation of the fill would cause irremediable damage and
would be inconsistent with ORS 196.600 to 196.905.
SECTION 664. ORS 196.845 is amended to read:
196.845. In considering applications for permits, the Director
of the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } may cause investigations or
surveys to be made of the location of the work contemplated to
determine whether such removal or filling is consistent with ORS
196.805 and 196.825.
SECTION 665. ORS 196.850 is amended to read:
196.850. (1) Notwithstanding ORS 196.810, the { - Department
of State Lands - } { + Oregon Department of Natural
Resources + } may, by rule, grant general authorization for
removal of material from the bed or banks of any waters of this
state or the filling of any waters of this state without a permit
from the department if the department finds that the activities
subject to the general authorization:
(a) Are substantially similar in nature;
(b) Would cause only minimal individual and cumulative
environmental impacts; and
(c) Would not result in long-term harm to water resources of
the state.
(2) A general authorization may be granted on a statewide or
other geographic basis.
(3) The department shall condition any general authorization
upon actions necessary to minimize environmental impacts.
(4) The department shall provide notice of any proposed general
authorization to affected federal and state agencies, local
governments, tribal governments and the public. The notice shall
include:
(a) A clear description of the proposal; and
(b) Draft findings and any proposed conditions pursuant to this
section.
(5) Any person proposing to conduct an action under a general
authorization shall:
(a) Notify the department in writing prior to conducting the
action.
(b) Pay the applicable fee to the department as determined
under subsection (9) of this section.
(6) The department shall amend or rescind any general
authorization upon a determination that the activities conducted
under the authorization have resulted in or would result in more
than minimal environmental impacts or long-term harm to the water
resources of this state.
(7) The department shall review each general authorization
adopted pursuant to this section every five years. The review
shall include public notice and opportunity for public hearing.
After the review, the department may either modify, reissue or
rescind the general authorization.
(8) In addition to the grounds for review set forth in ORS
183.400 (4), on judicial review of the validity of a rule adopted
under this section, the rule shall be reviewable for substantial
evidence in the rulemaking record. The record shall include
copies of all documents before the agency relevant to the
findings required by subsection (1) of this section.
(9) If the rule adopting a general authorization under this
section is:
(a) For actions that result in moving less than 50 cubic yards
of material, the department may not charge a fee for the general
authorization.
(b) For actions that result in moving 50 or more cubic yards of
material, the department may establish a fee for the general
authorization. The fee may not exceed $250 and shall be based on
the cost of processing the general authorization.
(10) The department shall credit any fee collected under this
section to the Common School Fund for use by the department in
administration of ORS 196.600 to 196.905.
SECTION 666. ORS 196.850, as amended by section 4, chapter 516,
Oregon Laws 2001, section 12, chapter 253, Oregon Laws 2003, and
section 7, chapter 849, Oregon Laws 2007, is amended to read:
196.850. (1) Notwithstanding ORS 196.810, the { - Department
of State Lands - } { + Oregon Department of Natural
Resources + } may, by rule, grant general authorization for
removal of material from the bed or banks of any waters of this
state or the filling of any waters of this state without a permit
from the department if the department finds that the activities
subject to the general authorization:
(a) Are substantially similar in nature;
(b) Would cause only minimal individual and cumulative
environmental impacts; and
(c) Would not result in long-term harm to water resources of
the state.
(2) A general authorization may be granted on a statewide or
other geographic basis.
(3) The department shall condition any general authorization
upon actions necessary to minimize environmental impacts.
(4) The department shall provide notice of any proposed general
authorization to affected federal and state agencies, local
governments, tribal governments and the public. The notice shall
include:
(a) A clear description of the proposal; and
(b) Draft findings and any proposed conditions pursuant to this
section.
(5) Any person proposing to conduct an action under a general
authorization shall:
(a) Notify the department in writing prior to conducting the
action. The person may not commence the action until the person
receives a letter of authorization from the department.
(b) Pay the applicable fee to the department as determined
under subsection (10) of this section.
(6) The Director of the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } shall waive the
requirements of subsection (5) of this section if the director
issues a general authorization and the authorized activity:
(a) Involves less than 50 cubic yards of material;
(b) Will be conducted during periods that minimize adverse
effects to fish and wildlife { - in accordance with guidance
provided by the State Department of Fish and Wildlife - } ;
(c) Will not dam or divert a waterway in a manner that
obstructs fish passage or vessel navigation; and
(d) Will not violate water quality standards as established by
the Department of Environmental Quality.
(7) The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } shall amend or rescind any
general authorization upon a determination that the activities
conducted under the authorization have resulted in or would
result in more than minimal environmental impacts or long-term
harm to the water resources of this state.
(8) The department shall review each general authorization
adopted pursuant to this section every five years. The review
shall include public notice and opportunity for public hearing.
After the review, the department may either modify, reissue or
rescind the general authorization.
(9) In addition to the grounds for review set forth in ORS
183.400 (4), on judicial review of the validity of a rule adopted
under this section, the rule shall be reviewable for substantial
evidence in the rulemaking record. The record shall include
copies of all documents before the agency relevant to the
findings required by subsection (1) of this section.
(10) If the rule adopting a general authorization under this
section is:
(a) For actions that result in moving less than 50 cubic yards
of material, the department may not charge a fee for the general
authorization.
(b) For actions that result in moving 50 or more cubic yards of
material, the department may establish a fee for the general
authorization. The fee may not exceed $250 and shall be based on
the cost of processing the general authorization.
(11) The department shall credit any fee collected under this
section to the Common School Fund for use by the department in
administration of ORS 196.600 to 196.905.
SECTION 667. ORS 196.860 is amended to read:
196.860. (1) If the Director of the { - Department of State
Lands - } { + Oregon Department of Natural Resources + }
determines that material is being removed from or filling is
occurring in any of the waters of this state without a permit
issued under ORS 196.825, 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, the director may:
(a) Investigate, hold hearings, make orders and take action, as
provided in ORS 196.600 to 196.905, as soon as possible.
(b) For the purpose of investigating conditions relating to the
removal or filling, through the employees or the duly authorized
representatives of the { - Department of State Lands - } { +
Oregon Department of Natural Resources + }, enter at reasonable
times upon any private or public property.
(c) Conduct public hearings in accordance with ORS chapter 183.
(d) Publish findings and recommendations as they are developed
relative to public policies and procedures necessary for the
correction of conditions or violations of ORS 196.600 to 196.905.
(e) Give notice of any proposed order relating to a violation
by personal service or by mailing the notice by registered or
certified mail to the person affected. Any person aggrieved by a
proposed order of the director may request a hearing within 20
days of the date of personal service or mailing of the notice.
Hearings shall be conducted under the provisions of ORS chapter
183 applicable to contested cases, and judicial review of final
orders shall be conducted in the Court of Appeals according to
ORS 183.482. If no hearing is requested or if the party fails to
appear, a final order shall be issued upon a prima facie case on
the record of the agency.
(f) Take appropriate action for the enforcement of any rules or
final orders. Any violation of ORS 196.600 to 196.905 or of any
rule or final order of the director under ORS 196.600 to 196.905
may be enjoined in civil abatement proceedings brought in the
name of the State of Oregon. In any such proceedings the director
may seek and the court may award a sum of money sufficient to
compensate the public for any destruction or infringement of any
public right of navigation, fishery or recreation resulting from
the violation. Proceedings thus brought by the director shall set
forth if applicable the dates of notice and hearing and the
specific rule or order of the director, together with the facts
of noncompliance, the facts giving rise to the public nuisance,
and a statement of the damages to any public right of navigation,
fishery or recreation, if any, resulting from the violation.
(2)(a) In addition to the administrative action the director
may take under subsection (1) of this section, the director may
enter an order requiring any person to cease and desist from any
violation if the director determines that the violation presents
an imminent and substantial risk of injury, loss or damage to
water resources.
(b) An order under this subsection:
(A) May be entered without prior notice or hearing.
(B) Shall be served upon the person by personal service or by
registered or certified mail.
(C) Shall state that a hearing will be held on the order if a
written request for hearing is filed by the person subject to the
order within 10 days after receipt of the order.
(D) May not be stayed during the pendency of a hearing
conducted under paragraph (c) of this subsection.
(c) If a person subject to an order under this subsection files
a timely demand for hearing, the director shall hold a contested
case hearing according to the applicable provisions of ORS
chapter 183. If the person fails to request a hearing, the order
shall be entered as a final order upon prima facie case made on
the record of the agency.
(d) Neither the director nor any duly authorized representative
of the department shall be liable for any damages a person may
sustain as a result of a cease and desist order issued under this
subsection.
(e) The state and local police shall cooperate in the
enforcement of any order issued under this subsection and shall
require no further authority or warrant in executing or enforcing
the order. If any person fails to comply with an order issued
under this subsection, the circuit court of the county in which
the violation occurred or is threatened shall compel compliance
with the director's order in the same manner as with an order of
that court.
(3) As used in this section, 'violation' means removing
material from or placing fill in any of the waters of this state
without a permit or in a manner contrary to the conditions set
out in a permit issued under ORS 196.825.
SECTION 668. ORS 196.865 is amended to read:
196.865. If the Director of the { - Department of State
Lands - } { + Oregon Department of Natural Resources + } finds
that a person holding a permit issued under ORS 196.825 is
removing material from the bed or banks or filling any of the
waters of this state contrary to the conditions set out in the
permit, the director may revoke, suspend or refuse to renew such
permit. The director may revoke a permit only after giving notice
and opportunity for a hearing as provided in ORS 183.415 to
183.430, 183.440 to 183.460 and 183.470.
SECTION 669. ORS 196.870 is amended to read:
196.870. (1) In addition to any enforcement action taken under
ORS 196.860, civil proceedings to abate alleged public nuisances
under ORS 196.855 may be instituted at law or in equity, in the
name of the State of Oregon, upon relation of the Director of the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } or by any person in the person's name.
(2) Before beginning any action under subsection (1) of this
section, a person other than the director shall provide 60 days
notice to the director of the intended action. A person other
than the director may not begin an action under subsection (1) of
this section if the director has commenced and is diligently
prosecuting civil, criminal or administrative proceedings in the
same matter.
(3) The director may institute an action in the name of the
State of Oregon for a temporary restraining order or preliminary
injunction if a threatened or existing nuisance under ORS 196.855
creates an emergency that requires immediate action to protect
the public health, safety or welfare. The director shall not be
required to furnish a bond in such proceeding.
(4) The State Land Board, the director { - of the Department
of State Lands - } and the employees or duly authorized
representatives of the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } shall not be
liable for any damages a defendant may sustain as a result of an
injunction, restraining order or abatement order issued under
this section.
(5) A case filed under this section shall be given preference
on the docket over all other civil cases except those given an
equal preference by statute.
(6) In any action brought under this section, the plaintiff may
seek and the court may award a sum of money sufficient to
compensate the public for any destruction or infringement of any
public right of navigation, fishery or recreation resulting from
an existing public nuisance under ORS 196.855. Any money received
by the plaintiff under this subsection shall be deposited in the
Common School Fund.
SECTION 670. ORS 196.875 is amended to read:
196.875. (1) If any person, through negligence, violates ORS
196.810, the Director of the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + }, in a proceeding
brought pursuant to ORS 196.870, may seek and the court may award
double a sum of money sufficient to compensate the public for any
destruction or infringement of any public right of navigation,
fishery or recreation resulting from such violation.
(2) If any person intentionally violates ORS 196.810, the
director, in a proceeding brought pursuant to ORS 196.870, may
seek and the court may award treble a sum of money sufficient to
compensate the public for any destruction or infringement of any
public right of navigation, fishery or recreation resulting from
such violation.
(3) An award made pursuant to this section shall be in addition
to and not in lieu of any criminal penalties imposed for a
violation of ORS 196.810.
(4) In any action brought under ORS 196.870, the court shall
award to the prevailing party the costs of suit and reasonable
attorney fees at trial and on appeal. Subject to the provisions
of ORS 20.140, any costs and attorney fees so awarded to the
director shall be deposited in the Common School Fund to offset
the director's expenses of bringing such action.
SECTION 671. ORS 196.880 is amended to read:
196.880. If the Director of the { - Department of State
Lands - } { + Oregon Department of Natural Resources + } issues
a permit to fill pursuant to ORS 196.600 to 196.905, it shall be
presumed that such fill does not infringe upon the public rights
of navigation, fishery or recreation, and the public rights to
lands created by the fill shall be considered extinguished.
SECTION 672. ORS 196.885 is amended to read:
196.885. The Director of the { - Department of State
Lands - } { + Oregon Department of Natural Resources + } shall
submit an annual report to the State Land Board on the activities
conducted under ORS 196.600 to 196.905. The annual report shall
include the following:
(1) The number of fill and removal permits applied for, denied
and granted, organized according to whether or not the permits
were for waters subject to section 404 of the Federal Water
Pollution Control Act (P.L. 92-500, as amended). For all permits
granted or outstanding during the prior year, a separate summary
shall be included for fills and removals, organized by river or
other water body, that shows:
(a) The total number of permits, the number of new permits and
the number of renewal permits.
(b) The volume and acreage of fills and removals authorized
during the past year, and the volume and acreage of fills and
removals completed during the past year.
(2) By river or other water body, a summary of the total volume
and acreage of fills and removals made under a general waiver,
general permit or similar authority.
(3) A summary of mitigation measures, including a description
of each mitigation project approved during the past year
including the location and size of each mitigation project and a
report on the status of all mitigation projects pending or
completed during the past year.
(4) A summary of enforcement activities, including:
(a) The number of potential violations reported.
(b) The number of compliance investigations conducted.
(c) The results of compliance actions, including:
(A) The number of cases resolved by voluntary compliance,
administrative hearings and judicial enforcement proceedings;
(B) The amount of damages and penalties assessed;
(C) The amount of damages and penalties recovered; and
(D) A brief description of each after-the-fact permit issued,
including the location and size by volume and acreage.
(5) A description of staffing, including the number of
full-time equivalent positions devoted to the permit program and,
for each position, the qualifications and job description.
(6) The report on the Oregon Removal-Fill Mitigation Fund as
required under ORS 196.655.
(7) The number of and average time for responding to notices
received by local governments and the number of responses that
took more than 30 days.
(8) The number of wetland conservation plans approved by the
director and a description of each, including the issues raised
during the approval process.
SECTION 673. ORS 196.890 is amended to read:
196.890. Any person who violates any provision of ORS 196.600
to 196.905 or any rule, order or permit adopted or issued under
ORS 196.600 to 196.905 shall be subject to a civil penalty in an
amount to be determined by the Director of the { - Department
of State Lands - } { + Oregon Department of Natural
Resources + } of not more than $10,000 per day of violation.
SECTION 674. ORS 196.895 is amended to read:
196.895. (1) Civil penalties under ORS 196.890 shall be imposed
as provided in ORS 183.745.
(2) The provisions of this section are in addition to and not
in lieu of any other penalty or sanction provided by law. An
action taken by the Director of the { - Department of State
Lands - } { + Oregon Department of Natural Resources + } under
this section may be joined by the director with any other action
taken against the same person under ORS 196.860 (1)(f).
(3) Any civil penalty recovered under this section shall be
deposited in the Common School Fund for use by the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } in administration of ORS 196.600 to
196.905, 196.990 and 541.990 and as otherwise required by law.
SECTION 675. ORS 196.895, as amended by section 5, chapter 516,
Oregon Laws 2001, is amended to read:
196.895. (1) Except as provided in subsection (4) of this
section, civil penalties under ORS 196.890 shall be imposed as
provided in ORS 183.745.
(2) The provisions of this section are in addition to and not
in lieu of any other penalty or sanction provided by law. An
action taken by the Director of the { - Department of State
Lands - } { + Oregon Department of Natural Resources + } under
this section may be joined by the director with any other action
taken against the same person under ORS 196.860 (1)(f).
(3) Any civil penalty recovered under this section shall be
deposited in the Common School Fund for use by the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } in administration of ORS 196.600 to
196.905, 196.990 and 541.990 and as otherwise required by law.
(4) Notwithstanding any provision of ORS 183.745, any person
having an interest that is adversely affected or aggrieved by an
alleged violation for which civil penalties are imposed under ORS
196.890 may intervene in a contested case proceeding pertaining
to the imposition of civil penalties under this section.
SECTION 676. ORS 196.900 is amended to read:
196.900. (1) The Director of the { - Department of State
Lands - } { + Oregon Department of Natural Resources + } shall
adopt by rule the amount of civil penalty that may be imposed for
a particular violation.
(2) In imposing a penalty under the schedule adopted under
subsection (1) of this section, the director shall consider the
following factors:
(a) The past history of the person incurring a penalty in
taking all feasible steps or procedures necessary or appropriate
to correct any violation.
(b) Any prior violations of statutes, rules, orders and permits
pertaining to waters of the state.
(c) The impact of the violation on public interests in fishery,
navigation and recreation.
(d) Any other factors determined by the director to be relevant
and consistent with the policy of ORS 196.805.
(3) The penalty imposed under this section may be remitted or
mitigated upon such terms and conditions as the director
determines to be proper and consistent with the policy of ORS
196.805. Upon the request of the person incurring the penalty,
the director shall consider evidence of the economic and
financial condition of the person in determining whether a
penalty shall be remitted or mitigated.
SECTION 677. 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
Agriculture, or its successor agency, { - so - } { + as + }
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 - } { + Oregon
Department of Natural Resources + } 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) 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 678. 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 - } { + Oregon Department of
Natural Resources + }; 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 - } { + as + }
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 - } { + Oregon Department of Natural Resources + };
(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 - } { + department + }; 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) 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 679. ORS 196.910 is amended to read:
196.910. The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } shall:
(1) Monitor removal and fill activities, including but not
limited to prospecting and placer mining, within designated
essential indigenous anadromous salmonid habitat areas to
determine the effects of such activities on salmonid spawning and
rearing habitat and compile the results in an annual report.
(2) { - Cooperate with the State Department of Fish and
Wildlife and other interested parties to - } Develop and
distribute { + , in cooperation with interested parties, + }
public education and information materials designed to increase
understanding and awareness of permit requirements and acceptable
removal and fill practices related to prospecting and placer
mining.
(3) Report periodically to the appropriate legislative
committee on the progress of the department { - of State
Lands - } in implementing ORS 196.810.
SECTION 680. ORS 197.279 is amended to read:
197.279. (1) Wetland conservation plans approved by the
Director of the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } pursuant to ORS chapter 196
shall be deemed to comply with the requirements of statewide
planning goals relating to other than estuarine wetlands for
those areas, uses and activities { - which - } { + that + }
are regulated by the wetland conservation plans.
(2) Wetland conservation plans shall be adopted and amended by
local governments according to the procedures of ORS 197.610 to
197.625.
(3) The { - department - } { + director + } shall adopt by
rule:
(a) Standards for cities and counties to use to inventory and
identify wetlands; and
(b) Criteria for cities and counties to use to determine when a
wetland is a significant wetland.
SECTION 681. ORS 215.418 is amended to read:
215.418. (1) After the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } has provided the
county with a copy of the applicable portions of the Statewide
Wetlands Inventory, the county shall provide notice to the
department, the applicant and the owner of record, within five
working days of the acceptance of any complete application for
the following that are wholly or partially within areas
identified as wetlands on the Statewide Wetlands Inventory:
(a) Subdivisions;
(b) Building permits for new structures;
(c) Other development permits and approvals that allow physical
alteration of the land involving excavation and grading,
including permits for removal or fill, or both, or development in
floodplains and floodways;
(d) Conditional use permits and variances that involve physical
alterations to the land or construction of new structures; and
(e) Planned unit development approvals.
(2) The provisions of subsection (1) of this section do not
apply if a permit from the department has been issued for the
proposed activity.
(3) Approval of any activity described in subsection (1) of
this section shall include one of the following notice
statements:
(a) Issuance of a permit under ORS 196.665 and 196.800 to
196.900 by the department required for the project before any
physical alteration takes place within the wetlands;
(b) Notice from the department that no permit is required; or
(c) Notice from the department that no permit is required until
specific proposals to remove, fill or alter the wetlands are
submitted.
(4) If the department fails to respond to any notice provided
under subsection (1) of this section within 30 days of notice,
the county approval may be issued with written notice to the
applicant and the owner of record that the proposed action may
require state or federal permits.
(5) The county may issue local approval for parcels identified
as or including wetlands on the Statewide Wetlands Inventory upon
providing to the applicant and the owner of record of the
affected parcel a written notice of the possible presence of
wetlands and the potential need for state and federal permits and
providing the department with a copy of the notification of
comprehensive plan map or zoning map amendments for specific
properties.
(6) Notice of activities authorized within an approved wetland
conservation plan shall be provided to the department within five
days following local approval.
(7) Failure by the county to provide notice as required in this
section will not invalidate county approval.
SECTION 682. ORS 227.350 is amended to read:
227.350. (1) After the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } has provided the
city with a copy of the applicable portions of the Statewide
Wetlands Inventory, the city shall provide notice to the
department, the applicant and the owner of record, within five
working days of the acceptance of any complete application for
the following activities that are wholly or partially within
areas identified as wetlands on the Statewide Wetlands Inventory:
(a) Subdivisions;
(b) Building permits for new structures;
(c) Other development permits and approvals that allow physical
alteration of the land involving excavation and grading,
including permits for removal or fill, or both, or development in
floodplains and floodways;
(d) Conditional use permits and variances that involve physical
alterations to the land or construction of new structures; and
(e) Planned unit development approvals.
(2) The provisions of subsection (1) of this section do not
apply if a permit from the department has been issued for the
proposed activity.
(3) Approval of any activity described in subsection (1) of
this section shall include one of the following notice
statements:
(a) Issuance of a permit under ORS 196.600 to 196.905 by the
department required for the project before any physical
alteration takes place within the wetlands;
(b) Notice from the department that no permit is required; or
(c) Notice from the department that no permit is required until
specific proposals to remove, fill or alter the wetlands are
submitted.
(4) If the department fails to respond to any notice provided
under subsection (1) of this section within 30 days of notice,
the city approval may be issued with written notice to the
applicant and the owner of record that the proposed action may
require state or federal permits.
(5) The city may issue local approval for parcels identified as
or including wetlands on the Statewide Wetlands Inventory upon
providing to the applicant and the owner of record of the
affected parcel a written notice of the possible presence of
wetlands and the potential need for state and federal permits and
providing the department with a copy of the notification of
comprehensive plan map or zoning map amendments for specific
properties.
(6) Notice of activities authorized within an approved wetland
conservation plan shall be provided to the department within five
days following local approval.
(7) Failure by the city to provide notice as required in this
section will not invalidate city approval.
SECTION 683. ORS 270.110 is amended to read:
270.110. (1) Except as provided in subsection (2) of this
section, whenever the state or any agency thereof possesses or
controls real property not needed for public use, or whenever the
public interest may be furthered, the state or its agency may
sell, exchange, convey or lease for any period not exceeding 99
years all or any part of its interest in the property to or with
the state or any political subdivision of the state or the United
States or any agency thereof or private individual or
corporation. Except where the state is exchanging real property,
the consideration for the transfer or lease may be cash or real
property, or both.
(2) If the ownership, right or title of the state to any real
property set apart by deed, will or otherwise for a burial ground
or cemetery, or for the purpose of interring the remains of
deceased persons, is limited or qualified or the use of such real
property is restricted, whether by dedication or otherwise, the
state or its agency may, after first declaring by resolution that
such real property is not needed for public use, or that the
sale, exchange, conveyance or lease thereof will further the
public interest, file a complaint in the circuit court for the
county in which such real property is located against all persons
claiming any right, title or interest in such real property,
whether the interest be contingent, conditional or otherwise, for
authority to sell, exchange, convey or lease all or any part of
such real property. The resolution is prima facie evidence that
such real property is not needed for public use, or that the
sale, exchange, conveyance or lease will further the public
interest. The action shall be commenced and prosecuted to final
determination in the same manner as an action not triable by
right to a jury. The complaint shall contain a description of
such real property, a statement of the nature of the
restrictions, qualifications or limitations, and a statement that
the defendants claim some interest therein. The court shall make
such judgment as it shall deem proper, taking into consideration
the limitations, qualifications or restrictions, the resolution
and all other matters pertinent thereto. Neither costs nor
disbursements may be recovered against any defendant.
(3) The authority to lease property granted by this section
includes authority to lease property not owned or controlled by
the state at the time of entering into the lease. Such lease
shall be conditioned upon the subsequent acquisition of the
interest covered by the lease.
(4) Any lease of state real property exceeding five years must
be approved in advance by the Oregon Department of Administrative
Services, except for leases:
(a) Negotiated by the Oregon Department of Aviation;
(b) Of state forestlands;
(c) Of property controlled by the { - Department of State
Lands - } { + Oregon Department of Natural Resources + },
Department of Transportation or Oregon University System; or
(d) Of property controlled by the legislative or judicial
branches of state government.
SECTION 684. ORS 271.445 is amended to read:
271.445. (1) It is the intent of the Legislative Assembly that
the state inform city and county governments of applications for
the installation of fiber-optic lines on public land and in
public rights of way that have been submitted to state agencies.
(2) The Governor shall direct the Department of Transportation
and the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } to take such action as
necessary to ensure that affected city and county governments are
informed of applications for the installation and maintenance of
fiber-optic lines on public land and in public rights of way that
have been submitted to the state agencies.
SECTION 685. ORS 273.006 is amended to read:
273.006. As used in this chapter, unless the context requires
otherwise:
{ - (1) 'Board' means the State Land Board. - }
{ - (2) - } { + (1) + } 'County recording officer' means
the county clerk or other county officer carrying out ORS 205.130
to 205.220.
{ - (3) 'Department' means the Department of State Lands. - }
{ - (4) 'Director' means the Director of the Department of
State Lands. - }
{ - (5) - } { + (2) + } 'Land' includes water, water
rights, easements of every nature and all appurtenances to land.
{ - (6) - } { + (3) + } 'Material' includes gravel, rock,
sand and silt, but does not include hard minerals subject to ORS
274.610, or oil, gas and sulfur subject to ORS 274.705 to
274.860.
{ - (7) - } { + (4) + } 'Public land' means any land or
improvements thereon owned by the State of Oregon or any agency
thereof.
{ - (8) - } { + (5) + } 'State land' means public land
controlled by the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + }.
{ - (9) - } { + (6) + } 'Terminal disposition' means the
permanent relinquishment by an agency of rights in real property,
including, but not limited to, sale, exchange, conveyance,
relinquishment of title, or donation.
SECTION 686. ORS 273.020 is amended to read:
273.020. The Governor is Land Commissioner for the State of
Oregon, and shall locate or select the lands to which the state
is entitled under the laws of the United States, or otherwise.
The Governor shall be allowed all necessary expenses incurred in
the performance of duties in this capacity prescribed by law. The
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } shall assist the Governor as necessary in
the performance of these duties.
SECTION 687. ORS 273.041 is amended to read:
273.041. { - The Department of State Lands is created, and
consists of the Director of the Department of State Lands and all
officers and employees of the department acting under the State
Land Board. Subject to ORS 273.171, the department - } { + The
Oregon Department of Natural Resources + } shall exercise all of
the administrative functions exercised by the clerk and other
personnel of the State Land Board before January 1, 1968.
SECTION 688. ORS 273.045 is amended to read:
273.045. { - The Department of State Lands - } { + In the
administration of ORS chapter 274 and this chapter, the Oregon
Department of Natural Resources + } shall establish its
{ - administrative - } policies in accordance with the laws
prescribing its powers and duties and the general policies
formulated by the State Land Board. Acting subject to the
approval of the board and in compliance with ORS chapter 183, the
Director of the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } shall promulgate { - such rules as
are - } { + rules + } necessary to carry out the policies of
the department and to attain maximum efficiency in its
administration.
SECTION 689. ORS 273.051 is amended to read:
273.051. (1) The { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } may cancel
certificates of sale for lands owned by this state, if unlawfully
obtained.
(2) The State Land Board shall:
(a) Manage, control and protect the common school grazing lands
under ORS 273.805 to 273.825 so as to secure the greatest
permanent value of the lands to all the people of this state,
particularly for the dedicated purposes of the lands and the
common schools to which the resources of the lands are devoted.
(b) Give due consideration, in the sale, exchange or leasing of
any state lands under its control, to the protection and
conservation of all natural resources, including scenic and
recreational resources, of such lands, so as to conserve the
public health and recreational enjoyment of the people, protect
property and human life, and conserve plant, aquatic and animal
life.
(3) The department shall coordinate the { - program and
financial accounting - } { + programs and + } activities
assigned to other { + state + } agencies under ORS 273.141 as
directed by the { - State Land - } board.
SECTION 690. ORS 273.055 is amended to read:
273.055. If { - it - } { + the Oregon Department of State
Lands + } finds it advisable in carrying out its duties, the
department { - of State Lands - } in the name of the State of
Oregon may take title to real and personal property in fee simple
or absolutely, in trust or under such other conditions as
{ - it - } { + the department + } considers advisable, and may
convey title thereto or execute agreements necessary to carry out
its duties.
SECTION 691. ORS 273.061 is amended to read:
273.061. The power of eminent domain may be exercised by the
State of Oregon at the request of the { - Department of State
Lands - } { + Oregon Department of Natural Resources + } for
the condemnation of property of any kind and all water rights,
easements and appurtenances thereto necessary for carrying out
its powers and duties.
SECTION 692. ORS 273.065 is amended to read:
273.065. All acts and decisions of the { - Department of
State Lands - } { + Oregon Department of Natural Resources + }
as to the legal title, and the right to a certificate of sale or
deed from the state, shall be final.
SECTION 693. ORS 273.075 is amended to read:
273.075. When lands formerly belonging to the State of Oregon
are disposed of and final payment has been made, the Director of
the { - Department of State Lands - } { + Oregon Department
of Natural Resources + } shall execute and deliver to the
purchaser a deed in a manner and form prescribed by the rules of
the { - Department of State Lands - } { + Oregon Department
of Natural Resources + }, conveying all right, title and interest
which the state may have in and to such lands, except as
otherwise provided by law.
SECTION 694. ORS 273.081 is amended to read:
273.081. The Director of the { - Department of State
Lands - } { + Oregon Department of Natural Resources + } may
execute on behalf of the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } all documents
required to carry out its powers and duties, in the manner and
form prescribed by the rules of the department. All documents so
executed shall be admitted to record without acknowledgment.
SECTION 695. ORS 273.085 is amended to read:
273.085. Copies of any document { + relating to real property
that are + } permitted by law to be recorded { + and + } that
are executed by the Director of the { - Department of State
Lands - } { + Oregon Department of Natural Resources + }, or
executed by the State Land Board before January 1, 1968, and
certified by the director, are entitled to record in the office
of any county recording officer. Documents affecting the title to
real property that are permitted by law to be recorded shall be
recorded in the county where { - such - } { + the + } real
property is situated { + . + } { - ; - } Copies of all other
documents { + that are + } permitted by law to be recorded
{ - that are executed by the Department of State Lands - } may
be recorded in any county designated by the { - department - }
{ + director + }.
SECTION 696. ORS 273.091 is amended to read:
273.091. The person offering a copy of a document mentioned in
ORS 273.085 for recording shall pay the recording fee. When a
copy of a document has been recorded it shall be returned by the
recording officer to the Director of the { - Department of
State Lands - } { + Oregon Department of Natural Resources + }
or other party as stated on the recorded document.
SECTION 697. ORS 273.099 is amended to read:
273.099. Unless otherwise provided by law, all deeds,
conveyances and leases belonging to this state must be deposited
and preserved { - in the office of the Department of State
Lands - } { + by the Oregon Department of Natural
Resources + }. Upon the sale of any real property belonging to
the state, a copy of the instrument that conveys the property
must be filed with the department by the officer or agency in
charge of the sale.
SECTION 698. ORS 273.101 is amended to read:
273.101. The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } shall administer the Common
School Fund as provided in ORS 327.405 to 327.480.
SECTION 699. ORS 273.105 is amended to read:
273.105. (1) The Distributable Income Account is established
within the Common School Fund. The { - Department of State
Lands - } { + Oregon Department of Natural Resources + } shall
administer this account in accordance with section 4, Article
VIII, Oregon Constitution, and applicable laws.
(2) The following moneys in the Common School Fund shall be
credited to the Distributable Income Account:
(a) Moneys received under ORS 390.715 and 390.725 after
deducting the administrative costs of the { - State Parks and
Recreation - } department.
(b) So much of the income derived from the investment of the
Common School Fund as the State Land Board deems appropriate
after payment of the expenses of the { - State Land - } board
authorized to be paid under section 2 (2), Article VIII of the
Oregon Constitution.
(c) The income derived from unclaimed property held by the
Director of the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } or deposited in the Common
School Fund.
(d) Other moneys received by the department { - of State
Lands - } that are required by law to be credited to the
Distributable Income Account.
(3) All other moneys received by the department { - of State
Lands - } shall be credited to the Common School Fund.
(4) The moneys in the Distributable Income Account are { +
continuously + } appropriated { - continuously - } for
apportionment according to ORS 327.410.
SECTION 700. ORS 273.115 is amended to read:
273.115. The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } may use so much of the Common
School Fund as is necessary for:
(1) The acquisition of lands, easements, and all other
interests in real property.
(2) Improvement, operation, and maintenance of property, crops,
timber, fixtures and appurtenances whether granted or otherwise
acquired at any time.
(3) Studies necessary for the fill and removal program that
include, but are not limited to, the effects of sand and gravel
mining on water quality and aquatic resources, sand and gravel
recruitment and sediment transport, monitoring of sand and gravel
removal operations, coordinating state and federal permitting
efforts and the annual review process for permitting sand and
gravel removal operations from the waters of this state.
SECTION 701. ORS 273.119 is amended to read:
273.119. The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } may apply for and receive any
private or federal grants, loans or other funds available for the
purposes of conducting studies related to { - the work of the
department - } { + state land + } and coordinating state and
federal permitting issues related to removal and fill.
SECTION 702. ORS 273.121 is amended to read:
273.121. Notwithstanding any other provision of law, all funds
{ - under the control of the Department of State Lands - }
{ + available to the Oregon Department of Natural Resources
under ORS 273.115 and 273.119 + } shall be expended by warrant
drawn on the State Treasurer, and then only upon proper claim
approved by the Director of the { - Department of State
Lands - } { + Oregon Department of Natural Resources, + } or
the authorized representative of the director { + , + } submitted
to the Secretary of State for audit.
SECTION 703. ORS 273.125 is amended to read:
273.125. Whenever { - it appears to the Department of State
Lands that any moneys have been erroneously paid to it - }
{ + moneys for the acquisition or leasing of state land have
been erroneously paid to the Oregon Department of Natural
Resources + }, the department may make an appropriate refund.
SECTION 704. ORS 273.131 is amended to read:
273.131. The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } may, whenever in its judgment
such course is to the best interest of the state, compromise,
settle, release and discharge any mortgage, judgment or other
claim in favor of the State of Oregon, and arising out of the
sale or lease of property within the jurisdiction of the
department, upon such terms as the department may direct.
SECTION 705. ORS 273.135 is amended to read:
273.135. (1) The { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } may enter into
written agreements with any governmental agency for the
performance of specialized, technical, professional,
administrative or other services and for the furnishing of
facilities and materials to { - carry out provisions of law
applicable to the department. - } { + :
(a) Acquire lands, easements and other interests in real
property.
(b) Improve, operate and maintain property, crops, timber,
fixtures and appurtenances.
(c) Study the fill and removal program.
(2) + } The activities and programs performed under { - such
agreements - } { + an agreement entered into pursuant to
subsection (1) of this section + }remain subject to supervision
and control by the department.
{ - (2) - } { + (3) + } All expenses incurred by a
governmental agency in performing services and furnishing
facilities and materials under an agreement entered into pursuant
to subsection (1) of this section shall be paid by the department
to such performing agency in the manner other claims are paid.
Payments by the department pursuant to this section and ORS
273.141 shall be made from moneys available to the department for
the payment of its expenses. Before making any deposit to the
credit of the Common School Fund, or any other fund or account
managed by the department, the department may first deduct all
expenses incurred pursuant to agreements entered into under this
section and ORS 273.141.
{ - (3) - } { + (4) + } Any state agency authorized under
ORS 283.110 to furnish services, facilities and materials to
other state agencies may in like manner furnish such services,
facilities and materials to the department under written
agreement pursuant to this section. All moneys received by a
state agency in payment for services, facilities and materials
rendered under a written agreement with the department may be
paid, deposited and credited in like manner as provided in ORS
283.110 (2), or credited to the account from which the cost of
the services, facilities and materials was originally paid.
SECTION 706. ORS 273.141 is amended to read:
273.141. { - In order to provide the Department of State
Lands with the specialized assistance necessary to its operations
and the transaction of its business, and in addition to other
agreements that may be entered into under ORS 273.135, the
department - } { + The Oregon Department of Natural
Resources + } may enter into written agreements with the state
agencies designated in this section for the operation of programs
and activities assigned to the department. Subject to final
review and approval by the State Land Board:
{ - (1) The State Forestry Department may perform the
functions assigned by the board that relate to forest
resources. - }
{ - (2) The State Department of Geology and Mineral
Industries may perform the functions of the Department of State
Lands that relate to mineral resources. - }
{ - (3) - } { + (1) + } The Department of Veterans' Affairs
may perform the functions of the { - Department of State
Lands - } { + Oregon Department of Natural Resources + } that
relate to investment of funds in mortgages secured by real
property.
{ - (4) - } { + (2) + } The State Treasurer may perform the
functions of the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } that relate to investments of
funds administered by the department { - of State Lands - }
not described in subsection { - (3) - } { + (1) + } of this
section { - , and - } that relate to escheated property.
{ - (5) - } { + (3) + } The State Department of Agriculture
may perform the functions assigned by the board and the functions
pertaining to management and regulation of grazing land and other
agricultural lands.
SECTION 707. ORS 273.145 is amended to read:
273.145. The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } may enter into contracts with
any person owning lands adapted to the purposes of ORS 273.316 to
273.345 and 273.511, for the subdivision, settlement and sale of
all or any portion thereof, under the direction and supervision
of the department and such conditions as may be agreed to.
SECTION 708. ORS 273.151 is amended to read:
273.151. The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } may cooperate with the
federal government for the development, settlement, subdivision
and disposition of lands belonging to the State of Oregon, or
which otherwise may be made available for carrying out the
purposes of ORS 273.316 to 273.345 and 273.511. In such
cooperation, the department may provide the lands but the federal
government shall provide the money necessary to meet the expenses
of reclamation, subdivision, necessary improvement and equipment.
SECTION 709. ORS 273.155 is amended to read:
273.155. The { - Department of State Lands - } { + Oregon
Department of Natural Resources + }, in carrying out its duties,
may call upon all related state and county agencies, including
Oregon State University and any state or county officers through
whom necessary information and aid may be received. Such
agencies, institution and officers shall cooperate with the
department without additional compensation.
SECTION 710. ORS 273.185 is amended to read:
273.185. (1) The Director of the { - Department of State
Lands - } { + Oregon Department of Natural Resources + } shall
investigate all trespasses on and damage to state lands and
prosecute the same. The director shall appear before appropriate
agencies of the United States in all cases involving the title or
claim of the state to its granted land or lands selected in lieu
thereof.
(2) Expenses incurred under this section shall be paid out of
the moneys available to the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } for the payment
of its expenses.
SECTION 711. ORS 273.196 is amended to read:
273.196. (1) The { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } shall create a
program whereby the department may enter into agreements with
volunteers, businesses and other agencies to allow those parties,
on a voluntary basis,
{ - to assist in the operation of department programs and - }
to assist in the maintenance of state lands administered by the
department. The program shall:
(a) Focus primarily on encouraging and facilitating involvement
of participants in the { - operation of department programs
and - } maintenance of state lands administered by the
department and in educational programs { - on behalf of the
department - } { + about state lands + };
(b) Offer opportunities for participants to assist in public
information activities { + that concern state lands + }; and
(c) Include a recognition element to acknowledge the efforts of
participants in the program.
(2) The department shall ensure that participants in the
program obtain permission from landowners for access to private
property if such access is necessary to perform activities under
the program.
(3) An agreement entered into pursuant to subsection (1) of
this section shall include, at a minimum:
(a) Identification of the state land where the participant
intends to carry out voluntary activities.
(b) Specification of the duties of the participant.
(c) Specification of the responsibilities of the participant,
including the responsibility to abide by the rules of the program
as adopted by the State Land Board.
(d) The duration of the agreement.
(4) The department may provide supplies, equipment, safety
information and assistance to the participants.
(5) The { - State Land - } board may adopt any rules
necessary for implementation of the program created under this
section.
(6) Under the direction of the board, the Director of the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } may encourage and render assistance in the
promotion of training programs for volunteers, businesses and
other agencies participating in the program created under this
section.
(7) As used in this section, 'volunteer' includes any person,
group of individuals, volunteer group, service club or other
entity that is tax exempt under section 501(c)(3) of the Internal
Revenue Code.
SECTION 712. ORS 273.197 is amended to read:
273.197. (1) In order to further the interpretive and
educational functions of state lands in Oregon, the Director of
the { - Department of State Lands - } { + Oregon Department
of Natural Resources + } may enter into an agreement with a
private, nonprofit scientific, historic or educational
organization organized solely for the purpose of providing
interpretive services for state lands facilities in Oregon.
(2) An organization entering into an agreement with the
director under subsection (1) of this section may:
(a) Provide educational or interpretive material for sale at
state lands facilities;
(b) Acquire display materials and equipment for exhibits at
state lands facilities;
(c) Provide support for interpretive or educational programs at
state lands facilities;
(d) Provide support for state lands facility libraries; or
(e) Provide support for other interpretive projects related to
a specific state lands facility.
(3) If the director enters into an agreement with an
organization under subsection (1) of this section, the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } may:
(a) Provide incidental personnel services for the
organization's interpretive program; and
(b) Provide space at a state lands facility for the display and
sale of materials provided by the organization.
(4) Any money received from the sale of publications or other
materials provided by an organization pursuant to an agreement
entered into under this section shall be retained by the
organization for use in the interpretive or educational services
of the state lands facility for which the organization provides
interpretive services.
(5) As used in this section, 'state lands facility ' includes a
recreational, historical, educational, research or scenic
attraction owned by or under the control of the State of Oregon
and administered by the department { - of State Lands - }
{ + for purposes related to state lands + }.
SECTION 713. ORS 273.199 is amended to read:
273.199. The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } shall adopt rules to carry
out the purposes of ORS 273.197. The rules shall include:
(1) Procedures and forms to be used by an organization entering
into an agreement with the Director of the { - Department of
State Lands - } { + Oregon Department of Natural Resources + }
under ORS 273.197.
(2) Guidelines for approving the materials an organization
proposes to provide or display at state lands facilities.
(3) Provisions for renewing or dissolving an agreement between
an organization and the director.
SECTION 714. ORS 273.225 is amended to read:
273.225. Before any person shall take any material from any
real property of the State of Oregon, except in the manner and
for the purposes mentioned in ORS 274.525 or 274.550, the person
shall apply to the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } for a lease. The
application shall include a complete description of the location
of the contemplated operation, the time and manner of
contemplated removal, and such other pertinent information as the
department may require. Upon receipt of such application the
department may award a lease to the applicant and fix a royalty
in the same manner provided in ORS 274.530.
SECTION 715. ORS 273.235 is amended to read:
273.235. The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } may inspect and audit books,
records and accounts of each person removing material from any
real property of the State of Oregon, and make other
investigation and secure or receive other evidence necessary to
determine whether or not the department is being paid the full
amount payable to it for the removal of such material. The
department may proceed by action or suit to enforce payment for
all materials taken from any real property of the State of
Oregon, for commercial uses, whether under lease, or otherwise,
for which payment has not been made.
SECTION 716. ORS 273.241 is amended to read:
273.241. (1) Removal of material from any property of the State
of Oregon under the control of the { - Department of State
Lands - } { + Oregon Department of Natural Resources + } by any
person without lawful authority is a trespass for which the
state, in addition to any action commenced under ORS 273.990, may
also commence an action for damages. If damages are assessed
against the defendant in any such action, the state shall be
awarded double the amount of damages assessed if the trespass is
willful. Proof by the state of its ownership of the premises is
prima facie evidence that the trespass, if committed, was
willful.
(2) Any action under subsection (1) of this section must be
commenced within six years from the date of the trespass or the
date on which the trespass is discovered by the state, whichever
last occurs.
SECTION 717. ORS 273.245 is amended to read:
273.245. Not later than January 1, 1996, the State Land Board
shall adopt an asset management plan in accordance with this
section to guide management and disposition of real estate under
the board's jurisdiction. The { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } shall provide a
report to each regular session of the Legislative Assembly on the
progress of implementing the asset management plan. The asset
management plan required by this section shall provide a schedule
for disposition of state lands when the proper disposition, as
determined, involves the sale, exchange or transfer of management
responsibility from the department { - of State Lands - } to
other entities.
SECTION 718. ORS 273.247 is amended to read:
273.247. (1) The State Land Board, by and through the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } or other agency acting on behalf of the
State Land Board, shall dispose of isolated parcels of land
classified as rangeland by the board in a manner consistent with
the asset management plan adopted under ORS 273.245 and the
board's trust responsibilities.
(2) As used in this section, 'isolated parcel' means:
(a) Land largely surrounded by land not owned by the board or
not contiguous to other larger tracts of state land; or
(b) Land determined by the board to be difficult or
uneconomical to manage due to access, location, isolation, low
production value or similar factors.
(3) To the extent consistent with the board's trust obligations
and ORS 273.413, the department or other agency acting on behalf
of the board shall establish a sale procedure for isolated
parcels of rangeland that is efficient and cost-effective.
SECTION 719. ORS 273.261 is amended to read:
273.261. An individual eligible under ORS 273.255 may file an
application with the Director of the { - Department of State
Lands - } { + Oregon Department of Natural Resources + } for
the purchase of state lands other than farmlands. The application
must be made in a form prescribed by the { - Department of
State Lands - } { + Oregon Department of Natural Resources + },
contain a correct and precise description of the lands applied
for in accordance with a survey acceptable to the department, and
be verified before an officer authorized by law to administer
oaths.
SECTION 720. ORS 273.265 is amended to read:
273.265. (1) If application is made for the purchase of
submersible lands, the applicant must cause such lands to be
surveyed at the expense of the applicant by a surveyor, whose
selection is subject to prior approval by the { - Department of
State Lands - } { + Oregon Department of Natural Resources + }.
The survey must connect with and conform to adjacent surveys
acceptable to the department, so far as practicable. The
applicant must submit to the department, with the application, an
accurate map of the lands applied for, showing the boundaries and
stating the area. The map must be verified by the surveyor before
an officer authorized by law to administer oaths.
(2) Each application to purchase submersible lands must, in
addition to all other requirements, contain the applicant's
statement that application is made with knowledge of the
character of the land applied for and the title of the state
thereto, and the waiver of the applicant of all claims upon the
state for the return of the purchase price of the lands in the
event that the lands, or any part thereof, do not belong to the
state.
SECTION 721. ORS 273.275 is amended to read:
273.275. Except as limited by ORS 270.020 and 273.225 to
273.241 and 274.040, and as in its judgment the interests of the
state demand, the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + }:
(1) Shall fix the price at which all classes of state lands may
be sold and the interest to be charged on deferred payments
therefor under ORS 273.281, and may provide for the advertisement
and sale of such lands to the highest bidder in a manner
consistent with ORS 270.020 and 273.225 to 273.241.
(2) May at any time withdraw any or all of such lands from
sale.
SECTION 722. ORS 273.281 is amended to read:
273.281. The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } shall require applicants for
the purchase of submersible lands to pay in full for such lands
at the time of purchase. Applicants for the purchase of school,
agricultural college, university, swamp or indemnity lands shall
make payments at such times, and with such interest for deferred
payments as the department may prescribe. However, the obligation
may not be allowed to stand for a longer period than five years
after the date of issuance of the certificate under ORS 273.285.
SECTION 723. ORS 273.285 is amended to read:
273.285. (1) When an applicant to purchase state lands desires
to make payments in installments as provided in ORS 273.281, the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } shall, upon receipt of one-fifth of the
purchase price of the land applied for, deliver to the purchaser
a certificate that the purchaser has contracted to purchase the
lands therein described. Upon performance under the contract and
upon the surrender of the certificate of sale, the purchaser, or
the heirs or assigns of the purchaser, shall be entitled to a
deed issued under ORS 273.300 for the lands therein described.
(2) The department shall maintain appropriate records of each
sale.
SECTION 724. ORS 273.290 is amended to read:
273.290. If any installment of the purchase price of land,
principal or interest, remains unpaid for one year after the same
becomes due, the certificate issued under ORS 273.285 shall be
canceled by order of the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + }. All payments
thereon shall be forfeited and the land considered vacant and
subject to sale as if it had not been previously contracted to be
sold.
SECTION 725. ORS 273.295 is amended to read:
273.295. All assignments of certificates of sale shall be
executed and acknowledged in the same manner as a deed to real
estate. The assignee, upon full payment of the amount due on the
purchase price, and delivery to the { - Department of State
Lands - } { + Oregon Department of Natural Resources + } of
such certificate and assignment, shall receive a deed for the
land described in such certificate, in the name of the assignee.
SECTION 726. ORS 273.300 is amended to read:
273.300. Whenever any purchaser of state lands holding a
certificate of sale therefor has paid three-fifths or more of the
purchase price thereof, the Director of the { - Department of
State Lands - } { + Oregon Department of Natural Resources + }
may execute a deed conveying the lands to such purchaser, upon
the purchaser's executing:
(1) A note for the remainder of the purchase price; and
(2) A mortgage on the premises in the same form and manner as
other mortgages are executed for loans from the Common School
Fund under ORS 327.405 to 327.480.
SECTION 727. ORS 273.306 is amended to read:
273.306. (1) Upon full payment of the purchase price and any
accrued interest thereon the Director of the { - Department of
State Lands - } { + Oregon Department of Natural Resources + }
shall execute a deed to the purchaser in a form prescribed by the
rules of the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + }.
(2) The department shall maintain appropriate records of all
deeds issued under this section.
SECTION 728. ORS 273.311 is amended to read:
273.311. (1) In all cases where clerical errors have been made
in deeds for any state lands sold, upon satisfactory proof and if
the rights of innocent parties have not intervened, the Director
of the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } may execute corrected deeds
to the holders thereof.
(2) Where lands, other than submersible lands and unsurveyed or
unpatented swamp lands have been sold and the state cannot convey
title to the purchaser, the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } shall repay the
purchaser, or the heirs or assigns of the purchaser, all sums
which may have been paid to the department on the purchase price
of the lands, including the interest paid upon deferred payments,
upon the presentation of a proper application for repayment,
satisfactory proof and the surrender of the certificate; or if
deed has been issued, upon reconveyance by executed and recorded
quitclaim deed of whatever title or color of title was received
from the state.
(3) Where a certificate of sale has been issued by the
department upon a fraudulent application and the certificate is
held by assignment by a third party who had no knowledge of the
fraud at the time of assignment, the department may refund to the
holder such sums as were paid the department on the purchase
price of the lands covered by the certificate, including the
interest paid upon deferred payments, upon the holder making
proper application to the department for repayment and
surrendering for cancellation the certificate and assignment.
SECTION 729. ORS 273.316 is amended to read:
273.316. (1) The { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } may exchange any
state lands under its control for any other lands in this state
for the purpose of accumulating larger and contiguous tracts of
state lands. The department may enter into the necessary
contracts to accomplish such purposes, subject to the rights of
lessees under ORS 273.321. The exchange may be made on the basis
of value or acreage, and the department may pay or accept money
as part of the consideration to the extent required for a fair
transaction.
(2) The object of this section is to authorize the department
to exchange isolated tracts of state lands for the purpose of
accumulating larger and contiguous tracts of state lands.
SECTION 730. ORS 273.321 is amended to read:
273.321. (1) Before exchanging any state lands for other lands
under ORS 273.316, the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } shall give notice
to the lessees of those state lands considered for exchange by
sending by certified or registered mail a notice containing a
general description of the state lands considered for exchange
and a listing of the names and addresses of the lessees of such
lands. The notice shall state that if written protest to such
exchange is received by the department not later than the 20th
day after the mailing of the notice, a hearing on such exchange
will be held.
(2) If the department receives, not later than the 20th day
after the mailing of the notice, written protest to such exchange
from a lessee of state lands considered for exchange, the
department shall hold a hearing on such exchange. The hearing
shall be held not earlier than the 30th day after the mailing of
the notice described in subsection (1) of this section. Notice of
the hearing shall be mailed by certified or registered mail to
all lessees of state lands considered for exchange. At the
hearing the lessees of the lands, or their representatives, may
present their views on the prospective exchange.
(3) The department shall consider testimony presented at the
hearing before making a protested exchange of state lands.
SECTION 731. ORS 273.326 is amended to read:
273.326. In all cases where the { - Department of State
Lands - } { + Oregon Department of Natural Resources + }
believes that any lands were acquired from the state by fraud or
in violation of the laws relating to the disposal thereof,
{ - it - } { + the department + } may:
(1) Enter into contracts with the persons asserting ownership
thereto for the subdivision and sale thereof on conditions agreed
upon by the contracting parties; or
(2) Exchange or accept in lieu thereof other lands suitable for
settlement and development or valuable for timber. The department
may enter into contracts for disposal and settlement of such
other lands as in the case of the lands { - first mentioned - }
{ + described + } in this section.
SECTION 732. ORS 273.331 is amended to read:
273.331. When lands that the { - Department of State
Lands - } { + Oregon Department of Natural Resources + }
believes were acquired from the State of Oregon by fraud or in
violation of the laws of the state are held by any person owning
other lands the title to which is not involved, the department
may provide as a condition to the contract of settlement
described in ORS 273.326 that such other lands, or such portion
thereof as the department considers advisable, may also be
subdivided and disposed of under the direction and supervision of
the department according to the conditions agreed to.
SECTION 733. ORS 273.340 is amended to read:
273.340. The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } shall ascertain the amount of
indemnity lands to which the State of Oregon is entitled from the
federal government and procure such lands in as large and
contiguous tracts as practicable, having in view its adaptability
for agriculture or its value for forestry purposes.
SECTION 734. ORS 273.345 is amended to read:
273.345. Before making selections under ORS 273.340, the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } shall determine the advisability of making
such selections in large and contiguous tracts within the
national forest reserves. If { - it is found - } { + the
department finds + } that such selections will be advantageous to
the State of Oregon, the department shall negotiate with the
appropriate agency of the United States to procure such lands. If
necessary, the department may seek enactment of legislation to
accomplish such object. The department may enter into all
necessary contracts relating to such lands.
SECTION 735. ORS 273.350 is amended to read:
273.350. (1) The Director of the { - Department of State
Lands - } { + Oregon Department of Natural Resources + } shall:
(a) Select as indemnity lands such vacant government lands as
may be applied for by legal applicants, upon receipt of their
applications to purchase, together with the nonmineral affidavit
and filing fees, as required by the rules and regulations of the
Bureau of Land Management, and a payment fixed by the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + }; and
(b) Upon return of a copy of the selection list approved by the
appropriate officer of the United States, pay over to the State
Treasurer moneys received on account of the purchase price of
such lands.
(2) When such lands have been clear listed or patented to the
state by the United States, the department shall issue deeds or
certificates to the applicants. However, no certificate or deed
shall be issued for indemnity lands until the same have been
patented to the state by the United States. If the state fails to
secure patent, the money so received shall be repaid to the
applicant upon proper application to the department and surrender
of the director's receipt.
SECTION 736. ORS 273.360 is amended to read:
273.360. Upon the execution and delivery to the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } by any grantee to whom the State Land Board
prior to February 21, 1916, erroneously conveyed various parcels
of land in sections 16 and 36 to which the title of the state was
found by the board to be defective, of a written instrument
sufficient to annul the conveyance of the state to such grantee
and to relinquish all other claims against the state arising out
of such conveyance, the department pursuant to ORS 273.125 shall:
(1) Refund to such grantee the purchase price paid to the state
for such land, with interest at the rate of six percent per annum
from the time payment was made; and
(2) Pay to the grantee an amount equal to all ad valorem taxes
paid by such grantee with respect to such land before June 19,
1967, without interest.
SECTION 737. ORS 273.370 is amended to read:
273.370. If the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } finds that the
property erroneously conveyed has been identified generally as
private property, as evidenced by the inclusion of the property
on the assessment rolls of the county in which it is located for
a period of 20 years or more immediately preceding, the
department may refund to the grantee an amount not to exceed any
of the following values:
(1) The current fair market value of the property erroneously
conveyed;
(2) The amount of the most recently issued title insurance
policy carried on the property, if such a title insurance policy
has been issued regularly; or
(3) The estimated current value to the department of the
indemnity selection rights reconveyed to the state.
SECTION 738. ORS 273.375 is amended to read:
273.375. In lieu of the procedure set out in ORS 273.360,
273.365 and 273.370, the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } may acquire for
the use and benefit of the State of Oregon, by purchase or
exchange, the interest of any applicant to whom the certificate
described in ORS 273.620 (3) (1965 Replacement Part) has been
issued before June 19, 1967, or who acts under ORS 273.360,
273.365 and 273.370. The price of any such purchase or
acquisition shall be paid to such applicant out of the revenues
of the Common School Fund, and shall not exceed the market value
of the land that otherwise would have been available to the
applicant under ORS 273.620 (1965 Replacement Part).
SECTION 739. ORS 273.388 is amended to read:
273.388. (1) The { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } may acquire at
fair market value and manage any or all of the Space Age
Industrial Park:
(a) If the lessee thereof relinquishes all rights to any or all
lands in the park under lease; and
(b) If a reasonable management plan can be prepared and
implemented by the department { - of State Lands - } , as
approved by the legislative review agency defined in ORS 291.371.
(2) The Director of the Oregon Department of Administrative
Services shall transfer title to any lands acquired by the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } under subsection (1) of this section to the
{ - Department of State Lands effective - } { + Oregon
Department of Natural Resources + } on the date of acquisition.
(3) Any moneys paid by the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } under subsection
(1) of this section shall be paid to the State Treasury to the
credit of the General Fund.
SECTION 740. ORS 273.413 is amended to read:
273.413. (1) The { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } may dispose of
isolated sections and fragments of sections of state lands which
are not suitable for management according to long-range policies
of the State Land Board. The proceeds of such sales shall be
applied and are continuously appropriated to the department
{ - of State Lands - } for the acquisition of lands or other
suitable investments as directed by the board in consultation
with the Oregon Investment Council.
(2) The proceeds of any sale authorized by subsection (1) of
this section shall be deposited in a revolving account in the
Common School Fund. The costs of acquisition authorized by
subsection (1) of this section shall be charged to the revolving
account.
(3) When requested in writing by the { - Department of State
Lands - } { + Oregon Department of Natural Resources + }, the
Oregon Department of Administrative Services shall draw a warrant
on the Common School Fund in favor of the { - Department of
State Lands - } { + Oregon Department of Natural Resources + }
for use as a revolving account. The State Treasurer shall hold
the revolving account in special account against which the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } may draw checks.
(4) The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } may use the revolving account
{ + described in subsection (3) of this section + } for the
purposes specified in subsection (1) of this section.
(5) Before disposing of lands described in subsection (1) of
this section, the department { - of State Lands - } shall
cause owners or lessees of land adjoining the land to be disposed
of to be notified of the pending disposition. The notice shall
indicate the time and method of sale, the minimum or reserved
price, if any, and shall invite the landowners or lessees to
participate as a prospective purchaser if the landowner or lessee
wishes to do so.
(6) Before purchasing or selling land, the department { - of
State Lands - } shall obtain approval of the governing body of
the county or counties in which such land is located.
(7) The department { - of State Lands - } shall prepare
sales materials, including catalogs of lands available for sale,
and may charge a fee for such materials.
(8) This section does not apply to the sale or management of
state-owned submerged and submersible lands subject to ORS
chapter 274.
SECTION 741. ORS 273.431 is amended to read:
273.431. (1) The value of the respective properties proposed to
be exchanged shall be determined by the state agency, board or
commission which has supervision and direction of the department
or activity of the state for which such property is held or
belongs, and if there be no such agency, board or commission,
then by the { - Department of State Lands - } { + Oregon
Department of Natural Resources + }. The state agency, board or
commission may use an appraised value as one indicia of the value
of the property.
(2) The state agency, board or commission shall cause the
property to be appraised by one or more competent and experienced
appraisers. The compensation, if any, of the appraisers shall be
borne equally by the respective owners of the property. In case
such valuation shall not be mutually satisfactory to the
respective owners the same shall not be binding upon them.
SECTION 742. ORS 273.447 is amended to read:
273.447. The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } is hereby authorized to sell,
convey, lease or exchange any or all state lands chiefly suitable
for grazing, to or with Oregon counties, and with the United
States of America for other lands either of equal acreage or of
equal value. { - All powers herein granted to the Department of
State Lands - } { + The powers granted to the department under
this section + } are in addition to and not in derogation of
{ + other + } powers { - heretofore - } conferred { + to the
department + } by law.
SECTION 743. ORS 273.511 is amended to read:
273.511. The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } shall ascertain the amount of
land to which it is entitled under the Acts of Congress relative
to submersible and swamp lands, acquire title thereto and enter
into contracts for drainage and reclamation in order that the
lands may be available for development and settlement.
SECTION 744. ORS 273.523 is amended to read:
273.523. The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } may sell and dispose of the
forest products on lands of the State of Oregon that have not
been designated Common School Forest Lands under ORS 530.460,
regardless of acreage and in such quantities to each purchaser as
the department shall prescribe. If the value of the forest
products, as appraised under ORS 273.525, exceeds $25,000, the
department shall sell the forest products to the highest and best
bidder at public auction, or through sealed bids, as the
department may determine prior to offering the forest products
for sale.
SECTION 745. ORS 273.525 is amended to read:
273.525. (1) Before offering any forest products for sale under
ORS 273.523, the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } shall cause the forest
products to be appraised in a manner that { - it - } { + the
department + } considers appropriate.
(2) Prior to sale of forest products with an appraised value
greater than $25,000, notice thereof shall be given by the
department for not less than four weeks by publication once each
week in one or more newspapers of general circulation in the
county in which such forest products are situated, and in such
other manner as the department considers appropriate. The notice
shall designate by legal subdivision the land having such forest
products thereon, shall state the appraised value of such forest
products and the minimum price at which the same may be sold and
shall contain a brief statement of the terms of sale. No sale of
forest products shall be made at less than the appraised value.
(3) The forest products on one or any number of legal
subdivisions may be offered and sold separately, or in one body,
as the department considers appropriate. In cases in which notice
has been given by publication and no satisfactory bid has been
received, or in cases in which the bidder fails to complete the
purchase, the department may, at any time during a period of six
months after the advertised date of sale, sell the forest
products in such manner as it considers appropriate, but the sale
price shall not be less than the minimum terms offered in the
notice of sale or the highest bid received, whichever is the
larger amount.
SECTION 746. ORS 273.531 is amended to read:
273.531. When more than one bid has been received, or in case
of doubt as to which of a number of bids is the highest and most
advantageous for the state, the decision of the { - Department
of State Lands - } { + Oregon Department of Natural
Resources + } is conclusive and not subject to review by the
courts.
SECTION 747. ORS 273.541 is amended to read:
273.541. All documents required in carrying out ORS 273.522 to
273.541 shall be executed by the Director of the { - Department
of State Lands - } { + Oregon Department of Natural
Resources + }, and all bonds, contracts and other instruments
required by ORS 273.522 to 273.541 for the protection of the
interests of the state shall be delivered to the { - Department
of State Lands - } { + Oregon Department of Natural
Resources + }.
SECTION 748. ORS 273.551 is amended to read:
273.551. (1) { - The Department of State Lands, as to any
land or mineral and geothermal resource rights subject to its
jurisdiction and control and without restricting, limiting or
repealing any other powers and authority which it has, after
consultation with the State Department of Geology and Mineral
Industries and with concurrence of any state agency acting for
the state with respect to surface rights in the subject land, - }
{ + For any land or mineral or geothermal resource under the
jurisdiction or control of the Oregon Department of Natural
Resources, the department + } may execute leases and contracts
for the mining of gold, silver, copper, lead, cinnabar, gas and
oil, or { + for + } other valuable minerals or the exploration
and development of geothermal resources upon conditions agreed
upon by the department { - of State Lands - } and the
lessee. { + The department may execute leases and contracts
described in this subsection for another state agency with the
state agency's concurrence. + }
(2) All leases may be without limitation as to time { + , + }
{ - ; - } but the department may cancel any lease upon failure
by the lessee to exercise due diligence in the prosecution of the
prospecting, development or continued operation of the mine or
well, and { + the department + } shall insert in every such
lease appropriate provisions for such cancellation.
(3) The authority granted by this section shall include the
execution of leases and contracts covering submersible and
submerged lands, as defined in ORS 274.005, the leasing of which
is not otherwise expressly authorized by statute.
(4) Leases and contracts executed under this section are not
sales within the purview of ORS 270.100.
(5) The department may charge a reasonable fee, to be paid by
the applicant, for making necessary investigations before the
execution of any such lease.
(6) This section does not apply to permits or leases under ORS
274.705 to 274.860.
SECTION 749. ORS 273.553 is amended to read:
273.553. (1) It is the policy of the State of Oregon to
maintain the South Slough of Coos Bay, from Valino Island
southward, inclusive, as a national estuarine research reserve,
acquired as the South Slough Estuary Sanctuary pursuant to
chapter 415, Oregon Laws 1975, as the first estuarine sanctuary
in the United States to be created under Section 312 of the
Coastal Zone Management Act of 1972 (P.L. 92-583) and
redesignated as the South Slough National Estuarine Research
Reserve by federal law (P.L. 99-272). The management policy for
the reserve is to:
(a) Maintain the integrity of the estuary;
(b) Protect the estuary from uses and activities, both within
and beyond its boundaries, that may alter or affect the ecosystem
and its natural dynamic processes; and
(c) Preserve the area for long-term scientific and educational
uses.
(2) Responsibility for completing purchase of the South Slough
National Estuarine Research Reserve is vested with the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + }. The department acts for the State of
Oregon in any transaction respecting the purchase of acreage for
the reserve on or after October 4, 1977.
(3) Except as necessary to achieve the policy set forth in
subsection (1) of this section and any standards established in
the Coastal Zone Management Act of 1972 (P.L. 92-583) or any
rules, regulations or agreements adopted pursuant thereto, the
reserve is open to the public. However, to protect the estuarine
ecosystems, public use of the reserve may be limited and
controlled by the South Slough National Estuarine Research
Reserve Management Commission in consultation with any technical
management team established pursuant to an agreement between the
State of Oregon and the Office of Ocean and Coastal Resource
Management of the National Oceanic and Atmospheric Administration
of the United States Department of Commerce. The commission shall
adopt rules to carry out the intent of this subsection.
(4) The South Slough National Estuarine Research Reserve
Management Commission shall administer the reserve, subject to
any agreement respecting the reserve between the State of Oregon
and the federal Office of Ocean and Coastal Resource Management.
(5) The agency that acquired title to the reserve shall cause
title to be cleared in the name of the State of Oregon.
SECTION 750. ORS 273.554 is amended to read:
273.554. (1) For the purpose of providing for the
administration of the South Slough National Estuarine Research
Reserve in a manner consistent with the provisions of ORS
273.553, there is created the South Slough National Estuarine
Research Reserve Management Commission. The commission shall have
the authority, in accordance with the policies formulated by the
State Land Board, to:
(a) Conduct the day-to-day operation and management of the
South Slough National Estuarine Research Reserve with the
administrative support of the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + };
(b) Appoint a manager and other staff necessary to carry out
this section; and
(c) Apply for, receive and expend moneys from the federal
government and from this state or any agency thereof for the
purpose of carrying out this section.
(2) In accordance with applicable provisions of ORS chapter
183, the commission may adopt rules necessary to:
(a) Carry out the commission's responsibilities pursuant to ORS
273.553; and
(b) Implement a system of fees to recover the costs of carrying
out the management established in ORS 273.553, including fees for
use of facilities at the reserve, fees for research activities
conducted at the reserve, visitor activities fees and parking
fees.
(3) The commission shall consist of nine members appointed by
the Governor as follows:
(a) A representative of common schools in the area of the
reserve;
(b) One authorized representative of the Coos County Board of
Commissioners;
(c) One authorized representative of the governing body of the
Port of Coos Bay;
(d) The Director of the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } or a designee
thereof;
(e) One authorized representative of the federal Office of
Ocean and Coastal Resource Management;
(f) Two representatives with an interest in marine science, one
from the University of Oregon Institute of Marine Biology at
Charleston and one from Oregon State University;
(g) One member selected from the general public at large; and
(h) One representative of Oregon Indian tribes appointed after
consultation with the Commission on Indian Services.
(4) The members appointed by the Governor under subsection
(3)(a), (f), (g) and (h) of this section shall serve for terms of
four years and members appointed under subsection (3)(b) and (c)
of this section shall serve for terms of two years. The Director
of the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } or the designee of the
director, if appointed in place of the director, shall serve as
the permanent chairperson of the commission. The commission shall
select one of its members as vice chairperson. The chairperson
and vice chairperson shall have duties and powers necessary for
the performance of the functions of such offices as the
commission determines. The vice chairperson shall act as the
chairperson of the commission in the absence of the chairperson.
The vice chairperson shall serve for a term of one year, subject
to reelection by the commission.
(5) Each member of the commission shall have one vote, except
that the member who is the authorized representative of the
federal Office of Ocean and Coastal Resource Management shall be
a nonvoting member. A majority of the commission constitutes a
quorum for the transaction of business.
(6) Members of the commission are not entitled to compensation,
but in the discretion of the State Land Board may be reimbursed
for actual and necessary travel and other expenses incurred by
them in the performance of their official duties, subject to laws
regulating travel and other expenses of state officers and
employees.
SECTION 751. ORS 273.571 is amended to read:
273.571. (1) The Natural Heritage Advisory Council is hereby
established. The council shall consist of { - 17 - }
{ + 13 + } members, nine of whom shall be chosen as follows and
who shall elect from its membership a chairperson:
(a) Four individuals, appointed by the Governor, shall be
recognized experts in the ecology of natural areas. Desirable
fields of expertise are botany, zoology, terrestrial ecology,
aquatic biology and geology; and
(b) Five { - citizens - } { + residents of this state + },
appointed by the Governor, shall be selected from the various
regions of the state. These members shall have interest in
natural resource conservation, management or the commodity use of
natural resources.
(2) Appointed members shall serve for four-year terms.
(3) In addition to the nine members appointed by the Governor,
the { - State Fish and Wildlife Director, the State Forester,
the Director of Transportation, the Chancellor of the Oregon
University System, the Director of Agriculture, the State Parks
and Recreation Director, the State Geologist and the Director of
the Department of State Lands - } { + Director of the Oregon
Department of Natural Resources, the Director of Transportation,
the Director of Agriculture and the Chancellor of the Oregon
University System, + }or an authorized representative of each
such officer, shall serve as ex officio, nonvoting members of the
council.
(4) Any vacancy { - on - } { + among the appointed members
of + } the council shall be filled by appointment of the
Governor.
(5) Members of the council shall serve without compensation,
but the State Land Board may pay the expenses reasonably incurred
by the council in the performance of its functions upon
presentation of vouchers signed by the chairperson of the council
pursuant to ORS 292.495.
(6) The council shall:
(a) Meet at least quarterly;
(b) Develop policy for the Natural Areas Program through the
review and approval of the Oregon Natural Areas Plan;
(c) Review nominations for registration and the voluntary
dedication of state natural areas, and approve instruments of
dedication for such areas;
(d) Advise the State Land Board, { - State Board of Forestry,
State Fish and Wildlife Commission, State Parks and Recreation
Commission, - } { + Oregon Department of Natural Resources, + }
State Board of Higher Education and Oregon Transportation
Commission regarding areas under their respective jurisdictions
{ - which - } { + that + } are appropriate for dedication; and
(e) Advise the { + State Land + } Board in the adoption of
rules that
{ - it - } { + the board + } considers necessary in carrying
out ORS 273.563 to 273.591.
(7) The { + State Land + } Board shall adopt any rules
pursuant to ORS chapter 183 that { - it - } { + the board + }
considers necessary to carry out ORS 273.563 to 273.591.
(8) Acting through the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + }, the council may
accept gifts or donations of real property. Such real property
shall be held in the name of the State of Oregon by the State
Land Board and shall be used for the purpose of carrying out the
provisions of ORS 273.563 to 273.591.
SECTION 752. ORS 273.586 is amended to read:
273.586. (1) A private individual or organization that is the
owner of any registered natural area may voluntarily agree to
dedicate that area as a state natural area by executing with the
State Land Board an instrument of dedication. The instrument of
dedication shall be effective upon its recording in the real
property records of the office of the clerk of the county in
which any or all of the state natural area is located.
(2) Any public agency may dedicate lands under the provisions
of ORS 273.563 to 273.591 following the providing of opportunity
for adequate public notice and hearing by the agency. The Oregon
Transportation Commission, the { - State Fish and Wildlife
Commission, the State Board of Forestry, - } { + Oregon Natural
Resources Commission, + } the State Board of Higher Education
{ - , the State Parks and Recreation Commission - } and the
State Land Board shall, with the advice and assistance of the
Natural Heritage Advisory Council, establish procedures for the
dedication of state natural areas on land, the title of which is
held by the State of Oregon, and which is under that agency's
management and control.
(3) The instrument of dedication shall contain any information
or provisions as the private owner, organization or agency and
council consider necessary to complete the dedication.
(4) Dedication of a state natural area may be terminated as
follows:
(a) The dedication of a state natural area by a public agency
may be terminated following the providing of opportunity for
adequate public notice and hearing and a finding by that agency
of an imperative and unavoidable necessity, or a finding by that
agency, with the approval of the council, that the state natural
area is no longer needed according to the guidelines of the
Oregon Natural Areas Plan.
(b) The dedication of a state natural area by a private
individual or organization may be terminated by the private
individual or organization after the council is assured that
there has been compliance with the procedures required by the
terms of the dedication instrument.
(c) The dedication of a state natural area may be terminated by
the { + State Land + } Board upon the advice of the council if
the area is no longer needed according to the guidelines of the
plan, or has permanently lost its natural character.
SECTION 753. ORS 273.715 is amended to read:
273.715. (1) The { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } shall prescribe
rules governing the exploration for and removal of semiprecious
stones and petrified wood from lands owned by the State of Oregon
and under the jurisdiction of the department. Such rules shall be
designed to maximize the public benefit of these resources, and
shall permit the free use of lands under jurisdiction of the
department for collection for noncommercial purposes of
reasonable quantities of petrified wood and semiprecious stones.
(2) The department, by rule, shall require payment of a
reasonable fee for a permit for the exploration for and removal
of semiprecious stones and petrified wood sufficient to cover the
expenses of the department incurred under this section with
respect to the permit.
(3) No person shall remove petrified wood or semiprecious
stones for commercial purposes or in a quantity having a value of
$500 or more without a permit issued by the department under this
section.
(4) If any person removes semiprecious stones or petrified wood
from lands owned by the State of Oregon without a permit as
required under this section or in a manner contrary to rules
prescribed under this section, all the materials or objects so
removed or the value of such materials or objects shall be
subject to disposal by the department as property of the State of
Oregon.
SECTION 754. ORS 273.751 is amended to read:
273.751. There is granted to all persons constructing railways
built after February 21, 1891, within the boundaries of the
state, and to their successors and assigns:
(1) A right of way through any unimproved state lands, of the
width of 100 feet, being 50 feet in width on each side of the
center line of the road.
(2) All necessary grounds for stations, depots, shops, side
tracks, turntables and water stations, not exceeding 10 acres in
any one place, upon payment to the state of the sum therefor as
fixed by the { - Department of State Lands - } { + Oregon
Department of Natural Resources + }.
(3) The right to take, from the lands of this state adjacent to
the route lines of the road, material necessary for the
construction of the roads.
(4) The right to construct and maintain railroad bridges over
any navigable waters in this state. All bridges crossing
navigable waters shall be subject to such regulations,
restrictions and compensation as may be fixed by the department,
and shall be so constructed as not unnecessarily to interfere
with navigation.
SECTION 755. ORS 273.755 is amended to read:
273.755. (1) Whenever a railway company mentioned in ORS
273.751, or its successors or assigns, files with the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } a map of the definite location of its road
lines through any state lands, the department thereafter shall
except from sale such right of way and lands for purposes named
in ORS 273.751.
(2) Whenever a railway company has selected a tract of state
lands for any purpose mentioned in ORS 273.751, the company shall
file with the department a map of the same, with a description
connected with surveys acceptable to the department. After such
map has been filed, after completion of construction of a
railroad through such lands and upon payment for the lands at the
rate of $1 per acre, the department shall execute and deliver to
the company, its successors or assigns, deeds for the tracts of
lands so selected.
SECTION 756. ORS 273.761 is amended to read:
273.761. (1) A right of way for construction of a water ditch
to be used for irrigation, manufacturing or mining purposes,
ditches or water pipes for conveying water to political
subdivisions for domestic purposes, or for the extinguishment of
fires, is granted for a distance of 25 feet on each side of such
ditches or water pipes to any person who may construct such water
ditches or water pipes over any submersible, swamp or school
lands.
(2) A right of way for the construction and maintenance of
domestic and industrial water supply mains, sanitary pressure
mains and storm water outfalls is granted for a distance of 25
feet on each side of such mains and outfalls to any municipal
corporation that constructs and maintains them in or over
submerged or submersible lands or new lands created thereon.
(3) All deeds, leases and easements granted by the State of
Oregon for any of the lands mentioned in this section shall be
made subject to any vested rights of the owners of such water
ditches, water pipes, mains or outfalls as may have been acquired
under this section.
(4) The person or municipal corporation constructing such water
ditches, water pipes, mains or outfalls shall file with the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } a copy of the field notes of the survey of
such ditches, water pipes, mains or outfalls, showing their
location.
(5) Any construction, maintenance, relocation or extension of a
main or outfall described in subsection (2) of this section shall
be carried out in accordance with any applicable rules of the
department.
SECTION 757. ORS 273.780 is amended to read:
273.780. (1) Mineral and geothermal resource rights in property
owned by any state agency and mineral and geothermal resource
rights retained as an interest in lands previously sold, granted
or otherwise conveyed by the state or any agency thereof are
property of the State of Oregon. Except as provided in ORS
273.785, proceeds therefrom shall accrue to the Common School
Fund, and the State Land Board is declared to be the state agency
acting for the state in any transaction respecting such mineral
and geothermal resource rights.
(2) In addition to applicable requirements of ORS chapter 522,
such mineral and geothermal resource rights shall be subject to
exploration permit or lease by the { - Department of State
Lands - } { + Oregon Department of Natural Resources + }, in
accordance with rules and conditions established by law or
adopted by the department.
(3) The mineral and geothermal resource rights shall be
retained by the state in the absence of a finding by the
{ - State Land - } board upon adequate facts presented to it
that their sale or exchange is for the purpose of obtaining the
greatest benefit for the people of this state, consistent with
the conservation of lands under its jurisdiction under sound
techniques of land management.
(4) Notwithstanding subsection (3) of this section, when the
department { - of State Lands - } offers real property for
sale, the department may not retain the rights to mineral or
geothermal resources if:
(a) On January 1, 2004, the real property was located:
(A) Inside an urban growth boundary; or
(B) Within an area zoned for residential use on a lot or parcel
that is three acres or smaller in size; and
(b) The value, if any, of the rights to the mineral or
geothermal resources is included in the total sale price of the
real property.
SECTION 758. ORS 273.785 is amended to read:
273.785. ORS 273.551 and 273.775 to 273.790 do not apply to:
(1) Soil, clay, stone, sand and gravel acquired or used by
state agencies for the purpose of constructing or repairing roads
or other state facilities, or the proceeds from those materials.
(2) Mineral or geothermal resource rights or proceeds from
those rights acquired by the { - State Fish and Wildlife
Commission - } { + state + } pursuant to an agreement with the
federal government under 16 U.S.C. 669 to 669i (P.L. 75-415).
(3) Mineral or geothermal resource rights or proceeds from
those rights if other disposition is required by federal rules or
regulations or any agreement entered into at the time of
acquisition of the mineral or geothermal resource rights by the
state.
(4) Proceeds of mineral and geothermal resource rights acquired
by the state pursuant to ORS 530.010 and 530.030, other than
those distributed under ORS 530.110 (1)(c).
(5) Mineral or geothermal resource rights or proceeds from
those rights acquired after January 1, 1974, for the state by the
Department of Veterans' Affairs pursuant to ORS 88.720, 406.050
(2), 407.135 or 407.145. After consultation, the { - Department
of State Lands - } { + Oregon Department of Natural
Resources + } and the Department of Veterans' Affairs shall enter
into an interagency agreement governing consultation between
{ - them - } { + the departments + } concerning mineral and
geothermal resource values on properties acquired for the state
by the Department of Veterans' Affairs. The Department of
Veterans' Affairs shall adopt rules relating to the release of
mineral and geothermal rights on such properties.
(6) Mineral or geothermal resource rights or proceeds from
those rights given by a donor to any institution, department or
activity under the control of the State Board of Higher Education
that are acquired or held for the state by the State Board of
Higher Education pursuant to ORS chapters 351 and 567. In
managing mineral or geothermal resource leases, the State Board
of Higher Education shall consult with the { - Department of
State Lands - } { + Oregon Department of Natural Resources + }
in accordance with an interagency agreement established by the
department and the State Board of Higher Education governing
consultation between the department and the State Board of Higher
Education and governing management of the mineral or geothermal
resources.
(7) Mineral or geothermal resource rights or proceeds from
those rights acquired and held by the Department of
Transportation. In managing mineral or geothermal resource
leases, the Department of Transportation shall enter into an
intergovernmental agreement with the { - Department of State
Lands - } { + Oregon Department of Natural Resources + }
governing consultation between the departments and governing
management of the mineral or geothermal resources.
SECTION 759. ORS 273.787 is amended to read:
273.787. (1) As used in this section:
(a) 'Owner' means:
(A) The record holder of fee title interest in residential real
property; or
(B) The contract purchaser of residential real property.
(b) 'Residential real property' means real property that is
sold by the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } for the State Land Board and
is located:
(A) Inside an urban growth boundary; or
(B) Within an area zoned for residential use on a lot or parcel
that is three acres or smaller in size.
(2) An owner may apply to the department for release and
transfer of the rights to mineral or geothermal resources
reserved by the State of Oregon.
(3) Upon application by the owner, the department shall release
and transfer to the owner the reserved rights to mineral and
geothermal resources within 30 days after the first
{ - board - } meeting { + of the State Land Board + } that is
at least 60 days after the department received the completed
application for release and transfer of the rights, unless the
board finds that a significant mineral or geothermal resource
exists. If the board finds that a significant mineral or
geothermal resource exists, the owner may:
(a) Offer to purchase the resource for the value of the
resource; or
(b) Withdraw the application.
(4) If the board finds that a significant mineral or geothermal
resource exists under subsection (3) of this section and the
owner offers to purchase the resource for the value of the
resource:
(a) The board shall determine the value of the resource on the
basis of an appraisal conducted by a state certified appraiser
certified under ORS 674.310 or by a geologist who is registered
under ORS 672.505 to 672.705 and qualified to assess the value of
mineral and geothermal deposits.
(b) The board may not:
(A) Require an owner to obtain an appraisal under this section;
or
(B) Require an owner to pay the cost of an appraisal conducted
at the request of the board under this section.
(5) The department may charge a reasonable fee, not to exceed
$150, to process an application under this section.
(6) The department may adopt rules to implement this section.
SECTION 760. ORS 273.790 is amended to read:
273.790. The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } shall establish and maintain
a registry of mineral and geothermal resource rights placed under
the jurisdiction of the State Land Board.
SECTION 761. ORS 273.805 is amended to read:
273.805. (1) As used in ORS 273.805 to 273.825, 'common school
grazing lands' means lands owned by the State of Oregon and under
the control of the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } that are chiefly
suitable for the grazing of animals, as determined by the
department, and { - which - } { + that + } are within, but not
limited to, the following land classifications:
(a) Lands defined by ORS 273.251 as indemnity lands, school
lands or farmlands.
(b) Lands { - which - } { + that + } have escheated to the
state.
(2) Nothing in ORS 273.805 to 273.825 is intended to be an
express or implied limitation upon the powers of the department
to acquire, lease, manage, control or protect land pursuant to
authority otherwise granted by law. ORS 273.805 to 273.825 and
327.430 are not the result of a legislative intent or belief that
the department is without authority to acquire, lease, manage,
protect or control common school grazing lands.
SECTION 762. ORS 273.815 is amended to read:
273.815. (1) In order to accomplish the purpose of ORS 273.805
to 273.825, the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } may, with respect to common
school grazing lands:
(a) Protect the lands from fire, disease and insect pests,
cooperate with others in such protection and enter into all
agreements necessary or convenient therefor.
(b) Lease the lands subject to such terms and conditions as the
department prescribes or is otherwise prescribed by law. Leases
shall be of sufficient duration so as to encourage the
rehabilitation and improvement of the lands by the lessee.
(c) Loan moneys belonging to the Common School Fund to lessees
of the lands for the purpose of rehabilitating and improving the
lands. The security for such loans shall be as prescribed by the
department but shall not be more than equal in value to the
amount loaned.
(d) Reseed or reforest the lands, including the destruction of
undesirable vegetation, and cooperate with others for such
reseeding or reforestation, and make all agreements necessary or
convenient thereto.
(e) Require such undertakings, including performance bonds, as
it considers appropriate to secure performance of any agreement
or loan authorized by ORS 273.805 to 273.825.
(2) In order to accomplish the purpose of ORS 273.805 to
273.825, the department may, with respect to common school
grazing lands, apply the following to all leases entered into by
the department after January 1, 1985:
(a) The initial term of a lease shall be not less than 20
years, and at the end of the initial term the lease shall be
renewed by the department for an additional term of 20 years.
However, any lessee who is in default under the terms of the
lease or has failed to comply with all management plans
applicable to the lease shall not be eligible for renewal of the
lease for an additional term of 20 years as provided in this
paragraph.
(b) The department shall give preference in the issuance of
leases to:
(A) Persons who are current lessees; and
(B) Landowners engaged in the livestock business that seek to
use the common school grazing lands for the grazing of livestock.
For the purposes of this subparagraph, 'landowner' means an
individual or legal entity that is the owner of the land, water
or water rights necessary to permit the proper use of the leased
common school grazing lands in combination with the landowner's
privately owned or controlled land or water.
(c) The department may terminate a lease of common school
grazing lands:
(A) Upon the default of the lessee as to any material term of
the lease; or
(B) If the lessee has failed to comply with any management plan
adopted by the department and applicable to the leasehold.
(d) Except as provided in paragraph (c) of this subsection, the
department shall not terminate a common school grazing lands
lease without the consent of the lessee. If the consent of the
lessee cannot be obtained, the department may terminate a common
school grazing lands lease only by contemporaneously agreeing to
pay to the lessee compensation as provided by law for all damages
caused by the termination of the lease, including any
depreciation or loss of value to the remaining lands or
businesses of the lessee.
SECTION 763. ORS 273.820 is amended to read:
273.820. The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } may exchange common school
grazing lands for land of approximately equal aggregate value,
when such exchange is in furtherance of the purposes of ORS
273.805 to 273.825. No exchange shall be made until the title to
the lands to be received has been validated by the Attorney
General. All lands received in exchange shall have the same
status and be subject to the same provisions of law as lands
given in exchange therefor.
SECTION 764. ORS 273.825 is amended to read:
273.825. (1) The lessee of any common school grazing land, upon
its classification for sale by the { - Department of State
Lands - } { + Oregon Department of Natural Resources + }, may
purchase such land at a price and on terms prescribed under
subsection (2) of this section if the lessee is an individual
person, a resident of this state and owns, in fee simple, land
immediately adjacent to the common school grazing land for which
the lessee has applied. For purposes of this section, lands are
considered to be adjacent if their boundaries are common or
intersect at a common point.
(2) Application to purchase common school grazing land under
subsection (1) of this section must be made in a manner
prescribed by the rules of the department. Upon receiving an
application, the department shall determine whether the applicant
qualifies under subsection (1) of this section. If the applicant
qualifies, the department shall cause an appraisal to be made of
the land for which application has been made. The department then
shall fix a price for such land. ORS 270.020, 273.225 to 273.241
and 273.275 do not apply to the sale of land under this
subsection. The applicant shall pay not less than 10 percent of
the purchase price at the time of purchase, and shall pay the
remainder in 10 equal installments, at least one installment to
be paid each year, over a period not to exceed 10 years from the
time of purchase, with interest at the rate fixed by the
department for purposes of ORS 327.425.
(3) If application to purchase common school grazing land is
made by a person other than the lessee of such land, the
department promptly shall notify the lessee by registered or
certified mail. Not later than the 90th day after notice was
mailed to the lessee, the lessee may make written application in
a manner prescribed by the rules of the department to purchase
such land. If the department determines that the lessee qualifies
under subsection (1) of this section, the department shall
proceed under subsection (2) of this section. If the department
determines that the lessee does not so qualify, or if the lessee
does not make timely application as required by this subsection,
the department shall proceed to sell such land in accordance with
applicable provisions of law other than this section.
SECTION 765. ORS 273.870 is amended to read:
273.870. (1) The Board of County Commissioners of Clatsop
County shall give public notice of each application received by
it under ORS 273.865 (1), prior to its consideration thereof, by
advertisement not less than once each week for four successive
weeks in a newspaper of general circulation in Clatsop County.
Such notice need not describe the lands applied for in legal
terms, but by the use of common descriptions or maps shall be
designed to identify the lands in a manner intelligible to the
layperson. Each notice shall indicate that a protest against the
execution of the deed applied for may be filed, in a manner
prescribed by the county board, with the county board not later
than the 60th day after the fourth publication of the notice, or
within such further time as the county board authorizes on a
showing of good cause. Not later than the fifth day after the
first publication of the notice, the county board shall send
written notice of the application to the { - Department of
State Lands - } { + Oregon Department of Natural Resources + }.
(2) If no protest is received within the time provided for in
subsection (1) of this section, and if the county board
thereafter determines that the application conforms to the
requirements of ORS 273.865 (1), the county board shall execute
and deliver to the applicant a deed in accordance with ORS
273.855 (1).
(3) If protest is received within the time provided for in
subsection (1) of this section, the county board shall cause a
hearing to be held with respect to the protest, in a manner
prescribed by its rules, prior to the making of its findings with
respect to an application.
(4) If two or more applications are filed with respect to the
same lands, the county board shall cause a hearing to be held at
which all such applicants may appear or be represented.
SECTION 766. ORS 273.902 is amended to read:
273.902. (1) All the rights and title of the State of Oregon to
the swamp and overflowed lands of this state, and claimed by
persons who have completed settlement thereon, or who may
hereafter complete settlement under the provisions of the
preemption or homestead laws of the United States, and have
obtained a patent or certificate of final proof therefor, hereby
are granted and confirmed unto such claimant, or the heirs or
assigns of the claimant, respectively.
(2) Upon application of any such claimant to the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + }, with proof of claim evidenced by United
States patent or final certificate of proof of settlement and
payment, issued from the United States Land Office, the
department shall execute and deliver to such claimant, without
charge, a quitclaim deed of the state's right and title to the
lands so claimed.
SECTION 767. ORS 273.903 is amended to read:
273.903. The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } shall not call in question
the title of any person to any swamp lands which the person may
not have acquired by full and complete compliance with the
preemption or homestead laws of the United States, nor shall the
department sell to anyone any unsurveyed swamp lands, or swamp
lands on which any settler shall have made and perfected bona
fide legal entry under the laws of the United States. { - '
Swamp lands,' - } As used in this section, { + ' swamp
lands' + } means lands classified as swamp lands pursuant to ORS
273.251.
SECTION 768. ORS 273.992 is amended to read:
273.992. (1) A person who violates any provision of ORS
273.225, 273.231, 273.551, 273.715, 273.780 or 273.815 or any
rule adopted under ORS 273.045 related to those sections is
subject to a civil penalty in an amount to be determined by the
Director of the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } of not more than $1,000 per
day of violation.
(2) Civil penalties under this section shall be imposed in the
manner provided in ORS 183.745.
(3) The provisions of this section are in addition to and not
in lieu of any other penalty or sanction provided by law.
(4) Any civil penalty recovered under this section shall be
deposited in the Common School Fund and made available for
expenses of the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } and as otherwise provided by
law.
SECTION 769. ORS 273.994 is amended to read:
273.994. (1) The Director of the { - Department of State
Lands - } { + Oregon Department of Natural Resources + } shall
adopt by rule a schedule establishing the amount of civil penalty
that may be imposed for a particular violation of ORS 273.225,
273.231, 273.551, 273.715, 273.780 or 273.815 or any rule adopted
under ORS 273.045 related to those sections.
(2) In imposing a penalty under the schedule adopted under
subsection (1) of this section, the director shall consider the
following factors:
(a) The past history of the person incurring the penalty in
taking all feasible steps or procedures necessary or appropriate
to correct any violation;
(b) Any prior violations by the person of statutes, rules,
orders or authorizations pertaining to the use of state land;
(c) The immediacy and extent to which the violation threatens
the public health or safety or the assets of the Common School
Fund; and
(d) Any other factors determined by the director to be relevant
and consistent with the policies established to implement the
provisions of ORS 273.225, 273.231, 273.551, 273.715, 273.780 or
273.815 or any rule adopted under ORS 273.045 related to those
sections.
(3) The penalty imposed under this section may be remitted or
mitigated upon such terms and conditions as the director
determines to be proper and consistent with the protection of the
public health and safety and the protection of the assets of the
Common School Fund. Upon the request of the person incurring the
penalty, the director shall consider evidence of the economic and
financial condition of the person in determining whether a
penalty shall be remitted or mitigated.
SECTION 770. ORS 274.005 is amended to read:
274.005. As used in this chapter, unless the context requires
otherwise:
{ - (1) 'Department' means the Department of State Lands. - }
{ - (2) 'Director' means the Director of the Department of
State Lands. - }
{ - (3) - } { + (1) + } 'Line of ordinary high water' means
the line on the bank or shore to which the high water ordinarily
rises annually in season.
{ - (4) - } { + (2) + } 'Line of ordinary low water' means
the line on the bank or shore to which the low water ordinarily
recedes annually in season.
{ - (5) - } { + (3) + } 'Land' includes water, water
rights, easements of every nature and all appurtenances to land.
{ - (6) - } { + (4) + } 'Material' includes gravel, rock,
sand and silt, but does not include hard minerals subject to ORS
274.610, or oil, gas and sulfur subject to ORS 274.705 to
274.860.
{ - (7) - } { + (5) + } 'Submerged lands,' except as
provided in ORS 274.705, means lands lying below the line of
ordinary low water of all navigable waters within the boundaries
of this state as heretofore or hereafter established, whether
such waters are tidal or nontidal.
{ - (8) - } { + (6) + } 'Submersible lands,' except as
provided in ORS 274.705 { + , + } means lands lying between the
line of ordinary high water and the line of ordinary low water of
all navigable waters and all islands, shore lands or other such
lands held by or granted to this state by virtue of her
sovereignty, wherever applicable, within the boundaries of this
state as heretofore or hereafter established, whether such waters
or lands are tidal or nontidal.
SECTION 771. ORS 274.040 is amended to read:
274.040. (1) Except as provided in ORS 274.043 (1) to (3), in
ORS 274.085 for leases of submersible lands acquired as an
investment for the Common School Fund, in ORS 274.530 (1) for
leases of submersible lands of less than one year's duration, in
ORS 274.530 (3) for licenses of less than three years' duration
and in subsections (2) and (3) of this section, submersible lands
owned by the State of Oregon may be leased only to the highest
bidder, bidding at least the minimum amount designated by the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } under subsection (6) of this section for
the lease of any such lands, after being advertised not less than
once each week for two successive weeks in one or more newspapers
of general circulation in the county in which the lands are
situated. However, any owner of lands abutting or fronting on
such submersible lands shall have the preference right to lease
the lands unless the submersible lands are occupied by a person
claiming the right of occupancy under a conveyance recorded
before January 1, 1981, from the present owner or predecessor in
interest of lands abutting or fronting the submersible lands. If
so, the occupant of the submersible lands shall have the
preference right to lease the lands. An easement or license
related to utility service on the submersible lands does not
establish a preference right under this subsection. The lands
shall be leased for the amount designated by the department under
subsection (6) of this section as the minimum amount for the
lease of any such lands. The preference provided in this
subsection applies to any lease of submersible land for one year
or more offered or issued under ORS 274.530. The preference
provided in this subsection does not apply to any lease offered
or issued by the department under ORS 274.705 to 274.860.
(2) Submersible lands owned by the State of Oregon that are
determined by the State Land Board to be available for sale may
be sold only to the highest bidder, after being advertised not
less than once each week for two successive weeks in one or more
newspapers of general circulation in the county in which the
lands are situated. However:
(a) No such lands shall be sold for less than for a fair
appraised value as determined by an appraiser appointed by the
department.
(b) All sales of such submersible lands shall be approved by
the { - State Land - } board.
(c) Any owner of lands abutting or fronting on such submersible
lands shall have the preference right to purchase such lands for
the fair appraised value provided that the sale of such lands be
approved by the { - State Land - } board.
(3)(a) The department may grant, to any person holding a permit
from the { - Water Resources Director - } { + department + }
authorizing the impoundment for beneficial use of the waters of
any lake or stream, easements over submersible lands for flowage
and storage of waters, and for the construction, maintenance and
operation of any structures or facilities necessary for the use
of the water under the terms of the permit upon payment of just
compensation by the grantee.
(b) In addition to the authority of the department under
paragraph (a) of this subsection to grant easements over
submersible lands, a person holding a water right permit, water
right certificate, proposed or final order approving a water
right permit or court decree evidencing a water right may occupy
state-owned submersible lands for the construction, maintenance
and operation of any structure or facility necessary for the use
of water if the proposed use under the permit, certificate, order
or decree is for irrigation or domestic use. The department may
not charge for the occupation of state-owned submersible lands
pursuant to this paragraph, nor may the department require that a
person obtain written documentation to substantiate the
permission granted under this paragraph. { - Upon request by
the Department of State Lands, the Water Resources Department
shall provide information to the Department of State Lands
regarding any change of use of the water right. - } A person may
continue to occupy state-owned submersible lands pursuant to this
paragraph until:
(A) The water right permit is canceled pursuant to ORS 537.260;
(B) The water right is canceled pursuant to ORS 540.641; or
(C) The water is no longer being applied to irrigation or
domestic use.
(c) An easement or the permission granted under this subsection
may not be construed to be a sale or lease of the submersible
lands within the meaning of subsections (1) and (2) of this
section.
(d) A person granted an easement or permission to use or occupy
state-owned submersible lands under this subsection shall
indemnify and hold harmless the state from all liability and
claims arising from or attributable to the use or occupation.
(4) All easements or the permission granted pursuant to
subsection (3) of this section shall be subject to conditions
that will ensure the safety of the public and the preservation of
economic, scenic and recreational values and to lawful rules
promulgated by state agencies affected by the activities of the
grantee.
(5) Nothing in this section affects the provisions of ORS
509.505, 509.510, 511.606 to 511.806, 622.270 or 622.320 to
622.350.
(6) The department { - of State Lands - } shall designate
the minimum acceptable amount for the lease of any submersible
lands otherwise authorized by law, other than any lease offered
or issued by the department under ORS 274.705 to 274.860.
(7) For the purpose of sale, the value of state-owned
submersible lands shall be determined by an appraiser appointed
by the department.
(8) The act of any person entering into an agreement with the
department under this section or ORS 274.530 for the lease of
submersible lands shall not be considered a waiver by such person
of any claim of ownership in the submersible lands described in
the agreement.
SECTION 772. ORS 274.043 is amended to read:
274.043. (1) A privately owned float or dock occupying an area
of 200 square feet or less is exempt from the leasing
requirements of ORS 274.040 if:
(a) The structure belongs to the immediately adjacent riparian
landowner; and
(b) The float or dock is uncovered, unenclosed and open on all
sides.
(2) A privately owned float or dock constructed prior to
September 29, 1991, and exempted under ORS 274.042 (1989 Edition)
is exempt from the provisions of ORS 274.040.
(3) The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } may, by rule, provide for
additional exemptions to the leasing requirements of ORS 274.040.
(4) Any float or dock described in subsections (1) to (3) of
this section shall be registered with the department.
SECTION 773. ORS 274.210 is amended to read:
274.210. The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } on behalf of the State of
Oregon may enter into contracts for:
(1) The drainage of submersible and submerged lands adjoining
or underlying any lakes, marshes or swamps in this state, or for
the drainage of that part which is in this state of submersible
and submerged lands adjoining or underlying any lake, marsh or
swamp lying partly in this state and partly in another state, and
for the reclamation of any such lands; and
(2) The sale or disposal of such drained and reclaimed lands as
provided for in ORS 274.210 to 274.260.
SECTION 774. ORS 274.220 is amended to read:
274.220. (1) Any person desiring to enter into a contract to
drain submersible and submerged lands under ORS 274.210 to
274.260 and reclaim such lands shall file { - with the
Department of State Lands - } an application { + with the
Oregon Department of Natural Resources + }.
(2) The applicant, at the expense of the applicant and without
any cost or charge to the state, shall make the necessary surveys
and prepare a map of the lands proposed to be reclaimed. The map
shall exhibit a plan showing the area that is submersible or
submerged and the mode of the contemplated drainage and
reclamation, and shall be accompanied by a list of the lands
proposed to be drained, with sufficient description to identify
the lands in accordance with rules promulgated by the department.
(3) The application shall contain an estimate of the cost of
the construction of the proposed system of drainage and
reclamation.
SECTION 775. ORS 274.230 is amended to read:
274.230. (1) Upon receipt of the application, map and plan of
drainage and reclamation under ORS 274.220, the { - Department
of State Lands may require the Water Resources Director to - }
{ + Oregon Department of Natural Resources may + } make an
investigation and report at the expense of the applicant. If the
project appears feasible and desirable and such applicant
responsible, the department may enter into a contract with the
applicant for construction of the drainage and reclamation works.
(2) The applicant shall agree:
(a) To drain the submersible and submerged lands substantially
in accordance with the plans set forth in the contract;
(b) To make such proofs of reclamation as are required by the
department;
(c) To pay all costs incident to the contract and making of the
proof and any other expense connected therewith;
(d) That work will be commenced upon the ditches or other works
necessary for such drainage and reclamation at a time fixed by
the department and agreed upon in the contract;
(e) That by the end of the first year after the time fixed in
the contract for beginning such work, 10 percent of the necessary
expenditure will be made; and
(f) That this work will be prosecuted with due diligence until
complete and the required proof of reclamation is made.
(3) The department shall require a bond subject to its approval
in any sum it finds necessary to insure the faithful performance
of the contract.
SECTION 776. ORS 274.240 is amended to read:
274.240. (1) Immediately upon execution of the contract, the
contractor undertaking the drainage and reclamation may enter
upon the lands for the purpose of reclaiming the same.
(2) The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } shall fix the amount to which
the contractor is entitled for reclaiming the lands and shall
also fix the amount to be paid to the state for such lands. The
department may permit the contractor to sell or dispose of the
lands at such price and upon such terms as the department may fix
in tracts not to exceed 640 acres to any one person under such
rules as the department may promulgate governing disposal.
(3) Upon proof satisfactory to the department that the amount
fixed by the department as due for reclamation and the amount due
the State of Oregon has been fully paid, the department shall
issue a quitclaim deed for not more than 640 acres to the
purchaser of such land.
SECTION 777. ORS 274.250 is amended to read:
274.250. (1) Upon failure of any parties having contracts with
the State { + of Oregon + } for construction of drainage and
reclamation works to begin the same within the time specified by
the contract, or to complete the same within the time or in
accordance with the specifications of the contract, the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } shall give such parties written notice of
such failure. If the parties have failed to proceed with the work
or to conform to the specifications of the contract on or before
the 60th day after the sending of such notice, the contract and
all work constructed thereunder is forfeited to the state.
(2) Upon forfeiture, the department shall immediately give
notice once every week for a period of four weeks in some
newspaper of general circulation in the county in which the work
is situated, and in one newspaper of general circulation in this
state, declaring the forfeiture of the contract, and that upon a
day stated in the notice proposals will be received at the office
of the department for the purchase of incomplete works and for
the completion of the contract, the time for receiving such bids
to be not earlier than the 60th day after issuance of the last
notice of the forfeiture. The sales shall be for cash to the
highest responsible bidder. The money received from the sale of
the partially completed works under this section shall first be
applied to the expenses incurred by the state in their forfeiture
and disposal, and any surplus shall be paid into the State
Treasury and become a part of the Common School Fund.
(3) The contractors may appeal from the decision of the
department. The appeal shall be heard in chambers by the circuit
court of the district wherein the head works of the drainage
system are situated.
SECTION 778. ORS 274.280 is amended to read:
274.280. In addition to its powers under ORS 274.210 to
274.260, the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } may cause reclamation
surveys, plans and specifications to be made for the reclaiming
of any unsold swamp lands and submersible lands under the control
of the department.
SECTION 779. ORS 274.290 is amended to read:
274.290. The { - Department of State Lands may direct the
Water Resources Director to submit an estimate of - }
{ + Oregon Department of Natural Resources may estimate + } the
probable cost of any survey, plan or specification of any
contemplated reclamation project under ORS 274.280. On
consideration thereof, if the department finds it to be in the
interest of the state, the department shall
{ - direct the Water Resources Director to cause such survey
and plans and specifications to be made and prepared - }
{ + make and prepare the survey, plan or specification + }. Upon
receipt thereof the department may proceed under the plan to the
extent and in such manner as { - it - } { + the
department + } considers advisable.
SECTION 780. ORS 274.404 is amended to read:
274.404. (1) On or before July 1, 1996, the State Land Board
shall adopt by rule a procedure that is consistent with ORS
274.400 to 274.412 by which the board and the { - Department of
State Lands - } { + Oregon Department of Natural Resources + }
shall make a final administrative determination as to whether a
waterway or part of a waterway is navigable, and if so, the
extent of the interest claimed by the State of Oregon in the
navigable portion of the waterway.
(2) The rules adopted under subsection (1) of this section
shall incorporate the following procedures that the board and the
department shall follow:
(a) The board may direct the department to make a determination
of navigability if there is sufficient economic justification or
if there is a broad and substantial public interest. If the board
so directs, the department shall conduct a study to make the
determination.
(b) The department shall provide prompt public notice to
affected property owners that the department is beginning the
study.
(c) Upon completion of a study directed under paragraph (a) of
this subsection, the department shall prepare and submit to the
board a draft report setting forth the department's findings and
conclusions as to whether the waterway or part of the waterway
under study is navigable and, if so, the extent of the State of
Oregon's interest in the waterway or part of the waterway.
(d) The department shall provide appropriate prior public
notice to affected property owners and other interested parties
concerning the draft report. The notice shall provide an
opportunity for a public hearing in the area of the affected
waterway and an opportunity for the public to submit written
comments on the draft report and to submit testimony or other
evidence concerning the navigability of the affected waterway or
part of the waterway or the State of Oregon's interest in the
waterway or part of the waterway.
(e) Following the public hearing, the board may adopt the draft
report submitted by the department if substantial evidence in the
record supports the report's findings and conclusions, or the
board may refer the report to the department for further action
as determined by the board.
SECTION 781. ORS 274.450 is amended to read:
274.450. The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } may acquire by purchase,
gift, condemnation or otherwise, any riparian rights which may,
by any court of competent jurisdiction, be held to be owned by or
vested in any upland or riparian owner on any meandered lakes,
and may institute such suits or actions as may be necessary in
such condemnation proceedings.
SECTION 782. ORS 274.460 is amended to read:
274.460. All persons qualified to become entrymen and to secure
land patents under the homestead laws of the United States and
who prior to January 1, 1921, in good faith settled upon lands
within the meander lines of lakes returned as navigable by the
United States surveys and who, on January 1, 1921, by reason of
settlement, cultivation and improvements on any such lands would
be entitled to patent from the United States if such lands were
open or subject to homestead entry are given a preference right
to purchase from the State of Oregon such lands so settled upon
by them, not exceeding 160 acres for any one person, upon such
terms and at such prices and within such times as shall be fixed
by the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + }. However, owners of the upland bordering
upon such ordinary high water mark have a preference right to
purchase, at the best price bid, state lands described in ORS
274.430 and riparian to their lands, and not exceeding 160 acres,
in addition to the lands granted them by ORS 274.430 and 274.440.
SECTION 783. ORS 274.470 is amended to read:
274.470. (1) Any person who in good faith settled upon lands
within the meander lines of any meandered lake and who, on
January 1, 1921, actually resided thereon, who maintained
residence thereon for at least five years immediately prior to
such date, and who complied with the requirements of settlement,
residence, cultivation and improvement, specified for homestead
entrymen under the homestead laws of the United States, and which
would be sufficient to acquire title by patent if such lands were
subject to homestead entry by qualified entrymen, upon proof of
such facts to the satisfaction of the { - Department of State
Lands - } { + Oregon Department of Natural Resources + }:
(a) Is entitled to a deed from the state, conveying and
granting such lands not exceeding 160 acres without cost; and
(b) Has a preferential right to purchase from the State of
Oregon 160 acres of additional lands, chiefly valuable for
agricultural purposes.
(2) Any person who did not reside on any lands described in
subsection (1) of this section for five years immediately prior
to January 1, 1921, but who purchased the improvement or
possessory rights or claims of a prior occupant, and whose
residence and possession when tacked to that of such prior
occupant extended for a period of not less than five years
immediately prior to such date, shall have a preferential right
to purchase such lands, not exceeding 160 acres, the price of
which shall be fixed without reference to the value of the
improvements thereon.
SECTION 784. ORS 274.490 is amended to read:
274.490. Settlers within the meander line of any meandered lake
have the first preferential right, and the { - Department of
State Lands - } { + Oregon Department of Natural Resources + }
shall, { - so - } { + as + } far as practicable, work out the
various preferential rights by securing to each, all the lands
which would be most advantageously used by such several persons.
In case of conflict, the department shall give the parties a
reasonable time in which to agree, and if
{ - they - } { + the parties + } cannot agree, the department
shall decide the matter and make conveyances as { - it - }
{ + the department + } considers equitable, and its decision in
the matter { - shall be - } { + is + } final. The department
shall fix the time within which such preferential rights shall be
exercised.
SECTION 785. ORS 274.500 is amended to read:
274.500. (1) All of the lands referred to in ORS 274.470 and
274.480 granted or conveyed by the state, shall be granted and
conveyed in a reasonably compact area, to be determined by the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + }.
(2) All sales of such state lands shall be at prices fixed by
the department, and no more than 320 acres shall be sold or
conveyed to any one person.
SECTION 786. ORS 274.510 is amended to read:
274.510. (1) If the federal government claims title or interest
in any lands referred to in ORS 274.470 or 274.480 the same shall
not be conveyed or otherwise disposed of, or preferential right
therein accrue until such claim is settled. The
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } may enter into such agreements with the
federal government affecting such lands as it deems best in the
interest of the public, and make such deeds and conveyances to
the United States in consideration of the issuance of such
patents by the United States to the State of Oregon of such lands
within the meander lines of any such lakes as the department and
the federal government agree.
(2) Nothing in this section is a recognition of any title or
interest in the United States within the meander lines of any
meandered lake to any lands or waters of any such lake prior to
the execution and delivery of a deed or conveyance from the State
of Oregon as provided for in this section.
(3) In carrying out such agreements the department may utilize
the proceeds from the sale of such lands in which title or
interest is claimed by the federal government. This section does
not authorize the department or any other state agency to enter
into any agreement which will divest any person of any water
rights acquired under the laws of this state or otherwise.
SECTION 787. ORS 274.525 is amended to read:
274.525. (1) Any city of the State of Oregon bordering on a
navigable stream may dredge out and use material from submersible
and submerged lands of the stream, owned by the State of Oregon
and in front of such city, for the purpose of filling in or
reclaiming the submersible lands within such city, under the
rules of the { - Department of State Lands - } { + Oregon
Department of Natural Resources + }. The consent of the
appropriate agency of the United States Government shall be first
obtained by such city.
(2) Any contractor who has entered into a contract with any
such city to fill in or reclaim any of its submersible lands may
dredge and use such material in the same manner as may be done by
such city.
SECTION 788. ORS 274.530 is amended to read:
274.530. (1) The { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } may, after notice
of competitive bidding, and following such competitive bidding,
lease or license submersible and submerged lands of navigable
streams owned by the State of Oregon for the purpose of removing
material therefrom. Competitive bid requirements may be waived
for leases of less than one year's duration. No lease shall be
made for a lump sum but only on a basis of the price per cubic
yard or ton for the material removed.
(2) The department may prescribe by rule the manner in which
the volume in cubic yards or the weight in tons for the material
removed shall be determined.
(3) Notwithstanding subsections (1) and (2) of this section,
the department may enter into a license for the removal of
material from submersible and submerged lands of navigable
streams owned by the State of Oregon based on a competitive
market rate that reflects fair market value.
(4) The department shall, prior to any competitive bidding
notice, establish prebid qualifications that include but are not
limited to the following:
(a) The minimum yardage amount of material that must be removed
for each year for which the lease is valid.
(b) Evidence that all bidders have an established market, as
provided by each bidder.
SECTION 789. ORS 274.550 is amended to read:
274.550. (1) A person may remove material from submersible and
submerged lands owned by the State of Oregon without payment of
royalties to the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } if the material is:
(a) Removed for channel or harbor improvement or flood control;
(b) Used for filling, diking or reclaiming land owned by the
state or any political subdivision as defined in ORS 271.005 and
located not more than two miles from the bank of the stream;
(c) Used for the creation, maintenance or enhancement of fish
or wildlife habitat;
(d) Used for the maintenance of public beaches; or
(e) Contaminated with hazardous material, as defined in ORS
466.605, provided that the person gives the department written
notice of the removal at least 30 days prior to disposal.
(2) A person does not have to pay royalties to the state for
the following uses of material, if the person provides at least
30 days' written notice to the department of the intended use:
(a) The filling of any property up to an elevation of one foot
above the line of ordinary high water of a waterway by a state
agency or political subdivision, as defined in ORS 271.005.
(b) The material is used solely for a public purpose by a
political subdivision, as defined in ORS 271.005.
(3) A person may not remove any material from the place it was
first deposited or use the material as an article of commerce
without providing, prior to the removal of the material, written
notification to the department and payment of any royalties for
the material as determined by the department.
(4) In addition to the purposes enumerated in subsection (1) of
this section, any person may take material for the exclusive use
of the person to the extent of not more than 50 cubic yards or
the equivalent weight in tons in any one year. However, before
taking the material, the person shall first notify the
department.
(5) Upon the removal of material from submersible or submerged
lands not exempt from the payment of royalties, royalties in an
amount established by the department must be paid to the
department.
(6) For purposes of this section:
(a) 'Article of commerce' means any material, other than
material used for upland disposal or contaminated material put to
beneficial use, that is bought, sold or exchanged in any manner
for goods or services and that otherwise would have to be
acquired from alternative sources.
(b) 'Reclaiming land' means raising the elevation of a portion
of land within a 100-year floodplain to not more than one foot of
elevation higher than the highest elevation of the 100-year
floodplain, or protecting land otherwise in the 100-year
floodplain by the construction of dikes or other flood control
improvements.
SECTION 790. ORS 274.560 is amended to read:
274.560. (1) The { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } may enter into
contract of lease for purposes of ORS 274.525 to 274.590 with
such stipulations protecting the interest of the state as the
department may require, and may require a bond with a surety
company authorized to transact a surety business in this state,
as surety, or other form of security, to be given by the lessee
for performance of such stipulations, and providing for
forfeiture for nonpayment or failure to operate under the
contract. No contract shall be entered into giving any person an
option of leasing or purchasing the property of the State of
Oregon. The lessee in all such contracts shall report monthly to
the department the amount of material taken under the contract
and pay to the department the amount of royalty thereon provided
in the contract.
(2) The department shall adopt rules to establish criteria to
determine when security is required.
SECTION 791. ORS 274.590 is amended to read:
274.590. The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } shall cooperate with the
proper authorities of the State of Washington in contracting for,
receiving and collecting royalties or other revenues for the
taking of material from the submersible and submerged lands of
the Columbia River and enter into such agreements as may be
advisable or necessary with such officers of the State of
Washington for the division of such royalties.
SECTION 792. ORS 274.610 is amended to read:
274.610. (1) The { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } shall not enter
into contracts for governmental or private development or
exploration for hard minerals on state-owned submersible and
submerged lands within the territorial sea and navigable bays
that are subject to the jurisdiction of the department.
(2) Nothing in this section shall be considered to prohibit
scientific research conducted by or on behalf of an academic
institution or a government agency.
(3) As used in subsection (1) of this section, 'hard minerals'
includes but is not limited to natural deposits or mineral
sources of gold, silver, copper, lead, iron, manganese, silica,
chrome, platinum, tungsten and zirconium. 'Hard minerals' does
not include oil, gas or sulfur deposits subject to ORS 274.705 to
274.860.
(4) As used in this section:
(a) 'Exploration' means any activity the principal purpose of
which is to define, characterize or evaluate hard mineral
deposits for possible commercial development or production.
(b) 'Scientific research' means any activity the principal
purpose of which is to improve scientific or technical
understanding of earth, ocean or atmospheric processes, hazards
and resources and for which the data generated are nonproprietary
or public.
SECTION 793. ORS 274.710 is amended to read:
274.710. (1) The { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } has exclusive
jurisdiction over all ungranted tidal submerged lands owned by
this state, whether within or beyond the boundaries of this
state, heretofore or hereafter acquired by this state:
(a) By quitclaim, cession, grant, contract or otherwise from
the United States or any agent thereof; or
(b) By any other means.
(2) All jurisdiction and authority remaining in the state over
tidal submerged lands as to which grants have been or may be made
is vested in the department.
(3) Notwithstanding ORS 273.551, the department shall
administer and control all tidal submerged lands described in
subsections (1) and (2) of this section under its jurisdiction,
and may lease such lands and submersible lands and dispose of
oil, gas and sulfur under such lands and submersible lands in the
manner prescribed by ORS 274.705 to 274.860. However, submerged
and submersible lands lying more than 10 miles easterly of the
124th West Meridian shall be subject to leasing for oil, gas and
sulfur under ORS 273.551, rather than under ORS 274.705 to
274.860.
(4) Notwithstanding any other provision of ORS 274.705 to
274.860, the department may not permit any interference other
than temporary interference with the surface of the ocean shore,
as defined in ORS 390.615. The department may, however:
(a) Grant easements underlying that part of the surface of the
ocean shore owned by the state at such times and at such places
as the department finds necessary to permit the extraction and
transportation of oil, gas or sulfur from state, federal or
private lands; and
(b) Issue oil and gas leases underlying the ocean shore under
the same terms and conditions as provided in ORS 274.705 to
274.860.
SECTION 794. ORS 274.720 is amended to read:
274.720. ORS 274.705 to 274.860 shall not:
(1) Affect the power of the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } to lease mineral
rights, including oil, gas and sulfur underlying state lands
other than lands subject to ORS 274.705 to 274.860.
(2) Affect the power of the department to lease mineral rights,
other than oil, gas and sulfur underlying lands subject to ORS
274.705 to 274.860.
(3) Affect any oil, gas and mineral lease issued before August
9, 1961, by any agency, board or commission of the State of
Oregon.
(4) Deprive this state or any agency or instrumentality thereof
of its jurisdiction over matters affecting the public health and
safety, including but not limited to the control of air and water
pollution.
SECTION 795. ORS 274.725 is amended to read:
274.725. (1) Any interests in lands, or lands in fee simple,
acquired by the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } by purchase, donation, lease
condemnation or otherwise, may be made available to any lessee of
the state for the purposes contained in ORS 274.705 to 274.860
and upon such terms as may be determined by the department.
(2) No permit or lease shall be granted to any person then in
violation of any laws or rules applicable to ORS 274.705 to
274.860.
SECTION 796. ORS 274.735 is amended to read:
274.735. (1) The { - Department of State Lands - }
{ + Oregon Department of Natural Resources + }upon application
by any person may permit geological, geophysical and seismic
surveys, including the taking of cores and other samples for
purposes related to exploration for oil, gas and sulfur on lands
subject to ORS 274.705 to 274.860. However:
(a) Such permits shall be nonexclusive and shall not give any
preferential rights to any oil, gas and sulfur lease.
(b) The department { - of State Lands in consultation with
the State Department of Geology and Mineral Industries - } may
grant permission for the taking of cores and other samples.
(c) { - After consultation with the State Fish and Wildlife
Commission, the Department of State Lands - } { + The
department + } shall include such rules and regulations in the
permit as are necessary to protect the fish and wildlife
resources.
(2) Each application under this section must contain at least
the following information:
(a) A description of the areas where the applicant proposes to
conduct a survey.
(b) The name and address of the applicant.
(c) Such other relevant information as the department { - of
State Lands - } requires.
SECTION 797. ORS 274.740 is amended to read:
274.740. (1) Upon compliance of an applicant with ORS 274.735,
the { - Department of State Lands - } { + Oregon Department
of Natural Resources + } may issue to the applicant a permit to
conduct a geological, geophysical and seismic survey, including
the taking of cores and other samples, in areas of the lands
subject to ORS 274.705 to 274.860 that are described on the
permit. The department may prohibit such surveys on any area
{ - if, in consultation with the State Department of Geology and
Mineral Industries, it - } { + if the department + } determines
that a lease, if applied for, should not be granted as to such
areas. The department { - of State Lands - } shall include in
a permit conditions and payments proper to safeguard the
interests of the state.
(2) Permits issued under this section may not exceed two years,
and may be renewed for like periods upon application to the
department and upon showing due compliance with applicable laws
and regulations.
(3) The department shall require the permittee to provide the
{ - State Fish and Wildlife Commission - } { + department + }
with complete information with respect to the area or areas of
proposed operations, type of exploration and a schedule showing
the period or periods during which such explorations will be
conducted. Such information shall be treated as confidential
unless released by the permittee.
SECTION 798. ORS 274.745 is amended to read:
274.745. (1) Records of drilling conducted by a permittee under
ORS 274.740 shall be filed by the permittee with the { - State
Department of Geology and Mineral Industries - } { + Oregon
Department of Natural Resources + } as prescribed by ORS 520.095.
(2) The department { - of State Lands - } may require, as a
condition to the issuance of any lease under ORS 274.705 to
274.860, that the lessee make available to the department
{ - of State Lands, or the State Department of Geology and
Mineral Industries, upon request, - } all factual and physical
exploration results, logs and records resulting from the
operations under the lease.
SECTION 799. ORS 274.755 is amended to read:
274.755. (1) Before granting any easement under ORS 274.705 to
274.860, and before offering lands for leasing under ORS 274.705
to 274.860, or whenever any person files a written application
with the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } requesting that an easement
be granted for such lands or that such lands be offered for
leasing under ORS 274.705 to 274.860, accompanying the same with
the required fee, the department shall hold a public hearing as
provided in this section.
(2) Before granting an easement or inviting bids on any lands
subject to ORS 274.705 to 274.860, the department shall cause
written notice describing the area under consideration and other
pertinent information to be transmitted to:
{ - (a) State Geologist; - }
{ - (b) - } { + (a) + } Director of Transportation;
{ - (c) - } { + (b) + } Director of the Department of
Environmental Quality;
{ - (d) State Fish and Wildlife Director; - }
{ - (e) - } { + (c) + } The applicant, if any, requesting
the lease;
{ - (f) - } { + (d) + } Prospective applicants or bidders,
by publication thereof in two or more publications of general
circulation in the oil and gas industry; and
{ - (g) - } { + (e) + } The public, by publication thereof
once each week for not less than four weeks in a newspaper of
general circulation throughout the State of Oregon, and in
addition in a newspaper of general circulation in the county in
which the lands lie or the county or counties contiguous to the
area under consideration for bidding.
(3) The notice shall set forth the place of hearing and shall
set its time at not earlier than the 20th day after date of the
last newspaper publication.
(4) Notwithstanding ORS 183.635, hearings under this section
may be conducted by an administrative law judge assigned from the
Office of Administrative Hearings established under ORS 183.605
or may be conducted by a hearing officer designated by the State
Land Board. { - An officer or employee of each interested state
agency, board or commission named in subsection (2) of this
section - } { + The Director of Transportation or the Director
of the Department of Environmental Quality + } may question any
witnesses appearing in the hearing, and any interested person may
offer evidence and otherwise be heard.
SECTION 800. ORS 274.760 is amended to read:
274.760. After the public hearing the { - Department of State
Lands - } { + Oregon Department of Natural Resources + } shall
determine whether the granting of an easement or an invitation
for bidding to lease the area under consideration would be in the
public interest. In { - such - } { + making its + }
determination { + , + } the department shall consider whether an
easement or a lease or leases of the area under consideration
would:
(1) Be detrimental to the health, safety, or welfare of persons
residing in, owning real property, or working in the neighborhood
of such areas;
(2) Interfere with the residential or recreation areas to an
extent that would render such areas unfit for recreational or
residential uses or unfit for park purposes;
(3) Destroy, impair or interfere with the aesthetic and scenic
values of the Oregon coast, or other affected area;
(4) Create any air, water or other pollution;
(5) Substantially endanger marine life or wildlife;
(6) Substantially interfere with commerce or navigation; and
(7) Protect state lands from drainage of oil and gas.
SECTION 801. ORS 274.765 is amended to read:
274.765. (1) The { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } may offer to
lease lands subject to ORS 274.705 to 274.860 by publication of a
notice of its intention to do so, once each week for not less
than two weeks in two or more newspapers of general circulation
in this state, one of which is published or has general
circulation in the county in which the lands lie or county or
counties contiguous thereto. The notice shall describe the lands
so offered, and shall specify the rate of royalty, including the
royalty for sulfur, and the rental, the manner in which bids may
be filed with the department, the amount of the deposit that must
accompany each bid, and the time and place for filing bids, which
time shall not be earlier than the 30th day after the date of
last publication of such notice. Further, the notice shall state
that the lease will be awarded to the bidder offering the highest
cash bonus, and that the form of lease, conditions for bidding
and bid form may be obtained from the department upon request.
(2) Each bid shall be enclosed in a sealed envelope, shall be
on the form provided by the department and shall be accompanied
by duplicate lease forms executed by the bidder, and by a
certified or cashier's check or checks payable to the State of
Oregon in the amount fixed by the department, which sum shall be
deposited as evidence of good faith and except in the case of the
successful bidder shall be returned to the bidder. If the
successful bidder fails to pay the balance of the cash bonus bid
and the annual rental for the first year not later than the 15th
day after the award of the lease, or fails to post any bond
required by the lease or the rules in effect at the date of the
invitation for bids within the time prescribed, the amount of the
deposit shall be forfeited to the state.
(3) At the time and place specified in the notice the
department shall publicly open the sealed bids and shall award
the lease for each parcel to the bidder who, in addition to
complying with all of the conditions for bidding, offers the
highest cash bonus. The department may, however, reject any or
all bids for cause.
(4) Following the award of the lease, the payment by the
successful bidder of the balance of the cash bonus, the annual
rental for the first year, and the fee specified in this section,
and the posting of any required bonds, the department shall
execute the lease in duplicate on behalf of the state and
transmit one counterpart thereof to the lessee. The lease shall
become effective as of the date of such execution.
(5) The department shall prescribe a reasonable fee to cover
the procedures under this section, which shall be paid by the
successful bidder.
SECTION 802. ORS 274.770 is amended to read:
274.770. In leasing lands subject to ORS 274.705 to 274.860,
the { - Department of State Lands - } { + Oregon Department
of Natural Resources + } may not discriminate between bidders by
requiring drilling from:
(1) Upland or littoral drill sites;
(2) Sites on filled land, whether contiguous or noncontiguous
to the littoral lands or uplands; or
(3) Any pier, platform or other fixed or floating structure in,
on or over lands subject to ORS 274.705 to 274.860, with respect
to which this state or any other owner thereof has consented to
use.
SECTION 803. ORS 274.780 is amended to read:
274.780. (1) The form of lease shall contain, in addition to
other provisions deemed necessary and desirable by the
{ - Department of State Lands, after consultation with the State
Department of Geology and Mineral Industries, the State Fish and
Wildlife Commission and other interested agencies, boards and
commissions, - } { + Oregon Department of Natural Resources, + }
the provisions of ORS 274.780 to 274.860.
(2) The form of a permit shall contain, in addition to other
provisions deemed necessary and desirable by the department
{ - of State Lands, after consultation with the State Department
of Geology and Mineral Industries, the State Fish and Wildlife
Commission and other interested agencies, boards and
commissions - } , the provisions of ORS 274.785 (3).
(3) All leases and other instruments required in carrying out
ORS 274.705 to 274.860 shall be executed by the department
{ - of State Lands - } . All bonds, contracts and other
instruments required by ORS 274.705 to 274.860 for the protection
of the interests of this state and political subdivisions,
persons and property therein shall be executed and delivered to
the department.
SECTION 804. ORS 274.785 is amended to read:
274.785. (1) The lease shall grant the exclusive right to drill
for and produce all oil, gas and sulfur deposits in the leased
land and be for a primary term of 10 years and for so long
thereafter as oil, gas or sulfur is produced in paying quantities
from the leased land, or lessee is diligently conducting
producing, drilling, deepening, repairing, redrilling or other
necessary lease or well maintenance operations on the leased land
or is excused from conducting such operations under the terms of
the lease.
(2) The maximum area which shall be included in any single
lease to any person shall be 13,200 acres.
(3) No permit, easement or lease, or any portions thereof shall
be assignable without the prior written consent of the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + }.
SECTION 805. ORS 274.790 is amended to read:
274.790. (1) The { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } shall specify in
the notice described by ORS 274.765 and in the lease the rate of
royalty paid under such lease which royalty shall not be less
than 12-1/2 percent of gross production, or the value thereof,
produced and saved from the leased lands and not used by lessee
for operations thereon or for injection therein. Such royalty
shall, at the department's option, be paid in kind or in value,
and be computed after an allowance for the actual cost of oil
treatment or dehydration of not to exceed five cents per barrel
of royalty oil so treated or dehydrated.
(2) The royalty for sulfur produced under ORS 274.705 to
274.860 shall not be less than $1 per long ton.
(3) The State of Oregon shall have a lien upon all production
for unpaid royalties.
SECTION 806. ORS 274.795 is amended to read:
274.795. The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } shall specify a rental
payable annually in advance of not less than 50 cents for each
acre of land subject to the lease at the rental date. After
production has been established, rent paid shall be deducted from
any royalty due under the terms of a lease during the year for
which such rent has been paid.
SECTION 807. ORS 274.805 is amended to read:
274.805. Unless otherwise determined by the { - Department of
State Lands - } { + Oregon Department of Natural Resources + },
each well drilled pursuant to the terms of the lease may be
drilled or slant drilled to and into the subsurface of the lands
covered by the lease from upland or littoral drill sites owned or
controlled by the state or owned by or available to the lessee,
or from drill sites located upon any filled lands heretofore or
hereafter filled, whether contiguous or noncontiguous to the
littoral lands or uplands, or from any pier heretofore or
hereafter constructed owned by or available to the lessee and
available for such purpose, or from platforms or other fixed or
floating structures in, on or over the lands covered by the lease
or otherwise available to the lessee.
SECTION 808. ORS 274.810 is amended to read:
274.810. Subject to the lessee's right to surrender, the lessee
shall commence operations for the drilling of a well within five
years from date of the lease and commence production within three
years of discovery of oil, gas or sulfur in paying quantities,
unless the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } shall have, for cause,
granted an extension of time for such act. In addition, the lease
shall have such exploratory, drilling and producing requirements
as the department { - of State Lands in consultation with the
Department of Geology and Mineral Industries - } deems necessary
to encourage the exercise of due diligence on the part of lessee.
SECTION 809. ORS 274.815 is amended to read:
274.815. If the lessee, as disclosed by information submitted
with the bid of the lessee, proposes to drill one or more wells
from filled land, whether contiguous or noncontiguous to the
littoral lands or uplands, or from any pier or from platforms or
other fixed or floating structures to be constructed for such
purpose, and if permission from any federal or state agency is
legally required in order to construct any such filled lands or
structures, the lessee shall be allowed a reasonable time
following the execution of the lease within which to secure the
necessary permission from such federal and state agencies as
shall be legally required, and, upon the securing of such
permission, a further reasonable time, determined with regard to
the nature of the filled lands or structure or structures to be
constructed within which to commence operations for the drilling
of such well or wells, and if necessary, the drilling term
provided for in ORS 274.810 shall be extended by the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } to the date to which the time to commence
operations for the drilling of such well or wells has been
extended.
SECTION 810. ORS 274.840 is amended to read:
274.840. In the event production on the leasehold shall cease
at any time or from time to time, before or after the expiration
of the primary term of the lease, the lease shall nevertheless
continue in full force and effect if the lessee shall, within six
months after the cessation of production or within such longer
period of time as the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } may authorize,
commence and thereafter prosecute with reasonable diligence
drilling, deepening, repairing, redrilling or other operations
for the restoration of production of oil, gas or sulfur from the
leased lands.
SECTION 811. ORS 274.845 is amended to read:
274.845. The lessee may at any time file with the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } a written surrender of all rights under the
lease or any portion thereof or any separate or distinct zone or
geological horizon or any portion thereof. Such surrender shall
be effective as of the date of its filing subject to the
continuing obligation of the lessee to pay all rentals and
royalties theretofore accrued and to place all wells on the lands
or in the zones or horizons surrendered in condition for
suspension or abandonment in accordance with the applicable lease
terms, regulations and law. Thereupon the lessee shall be
released from all obligations under such lease with respect to
the lands, zones or horizons surrendered, but no such surrender
shall release such lessee from any liability for breach of any
monetary obligation of the lease with respect to which such
lessee is in default at the time of the filing of such surrender.
SECTION 812. ORS 274.850 is amended to read:
274.850. The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } shall reserve and may
exercise the authority to cancel any lease upon which oil, gas or
sulfur has not been discovered in paying quantities, upon failure
of the lessee after 30 days' written notice and demand for
performance to exercise due diligence and care in the prosecution
of the prospecting or development work in accordance with the
terms of the lease. After discovery of oil, gas or sulfur in
paying quantities on lands subject to any lease, such lease may
be forfeited and canceled only by appropriate judicial
proceedings upon failure of the lessee after 90 days' written
notice and demand for performance to comply with any of the
provisions of the lease or of laws or regulations applicable
thereto and in force at the date of the invitation for bids in
pursuance of which the lease was awarded; provided, however, that
in the event of any such cancellation, the lessee shall have the
right to retain under such lease any and all drilling or
producing wells as to which no default exists, together with a
parcel of land surrounding each such well and such rights of way
through the leased lands as may be reasonably necessary to enable
such lessee to drill and operate such retained well or wells. In
the event of the cancellation of any lease, the lessee shall have
a reasonable time within which to remove all property, equipment
and facilities owned or used by the lessee in connection with
operations under the lease.
SECTION 813. ORS 274.855 is amended to read:
274.855. Upon any partial or total termination, surrender or
forfeiture of its permit or lease, the { - Department of State
Lands - } { + Oregon Department of Natural Resources + } may
require that the permittee or lessee, within a reasonable time,
restore that portion of the premises that is visible at extreme
low tide to substantially its original condition.
SECTION 814. ORS 274.860 is amended to read:
274.860. Under a lease entered into by the { - Department of
State Lands - } { + Oregon Department of Natural Resources + }
pursuant to ORS 274.705 to 274.860, the fill constituting filled
lands may be retained in place or protected by bulkheads,
seawalls, revetments or similar enclosures and may be placed at
any location approved by the department { - of State Lands, in
consultation with the Department of Geology and Mineral
Industries, the State Fish and Wildlife Commission and other
interested agencies, boards and commissions - } .
SECTION 815. ORS 274.867 is amended to read:
274.867. (1) In accordance with applicable provisions of ORS
chapter 183, the Director of the { - Department of State
Lands - } { + Oregon Department of Natural Resources + } may
adopt rules for the authorization of wave energy facilities or
devices.
(2) Unless exempted under rules adopted by the director under
this section, an owner or operator of a facility or device sited
within Oregon's territorial sea, as defined in ORS 196.405, that
converts the kinetic energy of waves into electricity shall
maintain cost estimates of the amount of financial assurance that
is necessary, and demonstrate evidence of financial assurance,
for:
(a) The costs of closure and post-closure maintenance,
excluding the removal of anchors that lie beneath submerged lands
in Oregon's territorial sea, of the facility or device; and
(b) Any corrective action required to be taken at the site of
the facility or device.
(3) The financial assurance requirements established by
subsection (2) of this section may be satisfied by any one or a
combination of the following:
(a) Insurance;
(b) Establishment of a trust fund;
(c) A surety bond;
(d) A letter of credit;
(e) Qualification as a self-insurer; or
(f) Any other method set forth in rules adopted by the
director.
(4) In adopting rules to implement the provisions of this
section, the director may specify policy or other contractual
terms, conditions or defenses necessary to establish evidence of
financial assurance.
(5)(a) The owner or operator of a facility or device described
in subsection (2) of this section must provide the evidence of
financial assurance required under this section for closure,
post-closure maintenance and corrective action at the time
operation of the facility or device is authorized.
(b) By January 31 of each subsequent calendar year, the owner
or operator of the facility or device must update the information
required under this subsection with the { - Department of State
Lands - } { + Oregon Department of Natural Resources + }.
(6) When financial assurance is required for corrective action
at the site of a facility or device described in subsection (2)
of this section, the owner or operator shall provide evidence of
financial assurance before beginning corrective action.
(7) An owner or operator required to provide financial
assurance under this section shall establish provisions
satisfactory to the director for disposing of any excess moneys
received or interest earned on moneys received for financial
assurance.
SECTION 816. ORS 274.885 is amended to read:
274.885. (1) The { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } may lease
submerged lands owned by the State of Oregon for the purpose of
harvesting kelp and other seaweed { - after consultation with
the State Fish and Wildlife Commission - } .
(2) The lease may be for a term of not to exceed 50 years and
shall provide for the payment to the State of Oregon of a sum to
be fixed by the department for all kelp or other seaweed
harvested under the lease, to be paid at the end of each year.
Not more than 40 miles of coast line shall be leased to one
person.
SECTION 817. ORS 274.890 is amended to read:
274.890. The first lease issued to an applicant under ORS
274.885 to 274.895 with respect to any submerged lands may allow
the applicant six months in which to make a practical survey of
the field which the applicant has leased, and another 12 months
in which to erect a plant and commence operation. The lessee
shall, within six months of the time of obtaining the lease, make
or cause to be made a practical survey showing the amount and
condition of kelp within the territory described in the lease,
and shall file a copy of the survey with the Director of the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } within six months. Upon the failure of the
lessee so to do, the lease shall be canceled by the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + }.
SECTION 818. ORS 274.895 is amended to read:
274.895. Except in the case of a person harvesting or removing
less than 2,000 pounds of kelp each year for the purposes of
human consumption, no person shall harvest or remove any kelp or
other seaweed from any submerged lands owned by the State of
Oregon unless the person has first obtained a lease from the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + }.
SECTION 819. ORS 274.915 is amended to read:
274.915. (1) Except as otherwise provided in ORS 274.905 to
274.940, the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } may sell, lease or trade
submersible or submerged lands owned by the state in the same
manner as provided for submersible lands in this chapter or ORS
chapter 273.
(2) Except as otherwise provided in ORS 274.905 to 274.940, the
department may sell, lease or trade new lands created upon
submersible or submerged lands owned by the state in the same
manner as provided for lands acquired as an investment for the
Common School Fund in ORS 274.085 or ORS chapter 273.
SECTION 820. ORS 274.925 is amended to read:
274.925. (1) Whenever the United States, while engaged in the
promotion of navigation, creates new lands upon submersible or
submerged lands owned by the state and the adjoining or opposite
upland or riparian land on the same side of the body of water is
owned by a public body, the public body has the right to purchase
the new lands as provided in this section. The public body shall
pay to the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } for the new lands a sum equal
to the difference between the value of the tract, consisting of
the new lands and the adjoining or opposite upland on the same
side of the body of water, and the value of the adjoining or
opposite upland before the creation of the new lands and an
amount prescribed by the department to pay its administrative
costs incurred with respect to the new lands. Such payment shall
be made by the public body within one year after the date of the
receipt by it of actual notice by the department of the creation
of the new lands, the sum equal to the difference between the
value of the tract, consisting of the new lands and the adjoining
or opposite upland on the same side of the body of water, and the
value of the adjoining or opposite upland before the creation of
the new lands and the administrative costs incurred by the
department with respect to new lands. If the public body fails to
make payment for the new lands as provided in this subsection
within one year after the date of such notice, the department may
dispose of the new lands as provided in ORS 274.915.
(2) If a public body and the department cannot agree on the sum
to be paid under subsection (1) of this section, the sum to be
paid shall be determined by three appraisers, one appointed by
the public body, one by the department, and the third by the
first two, and their determination shall be final. The cost of
the third appraiser shall be borne equally by the public body and
the department.
SECTION 821. ORS 274.929 is amended to read:
274.929. (1) Whenever the United States, while engaged in the
promotion of navigation, creates new lands upon submersible or
submerged lands owned by the state and the adjoining or opposite
upland or riparian land on the same side of the body of water is
owned by other than a public body, the nonpublic riparian owner
has the right to purchase the new lands as provided in this
section.
(2) A nonpublic riparian owner entitled to purchase the new
lands under subsection (1) of this section shall pay to the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } for the new lands a sum equal to the
difference between the value of the tract, consisting of the new
lands and the adjoining or opposite upland on the same side of
the body of water, and the value of the adjoining or opposite
upland before the creation of the new lands and an amount
prescribed by the department to pay its administrative costs
incurred with respect to the new lands. Such payment shall be
made by the nonpublic riparian owner within six months after the
date of the receipt by the nonpublic riparian owner of actual
official notice by the department of the creation of the new
lands, the sum equal to the difference between the value of the
tract, consisting of the new lands and the adjoining or opposite
upland on the same side of the body of water, and the value of
the adjoining or opposite upland before the creation of the new
lands and administrative costs incurred by the department with
respect to the new lands. If the nonpublic riparian owner fails
to make payment for the new lands as provided in this subsection,
the department, after the expiration of the six-month period, may
dispose of the new lands as provided in ORS 274.915.
(3) If a nonpublic riparian owner and the department cannot
agree on the sum to be paid under subsection (2) of this section,
the sum to be paid shall be determined by three appraisers, one
appointed by the nonpublic riparian owner, one by the department,
and the third by the first two, and their determination shall be
final. The cost of the third appraiser shall be borne equally by
the nonpublic riparian owner and the department.
(4) Notwithstanding ORS 274.910 (2), this section applies only
to new lands created on or after October 5, 1973.
SECTION 822. ORS 274.932 is amended to read:
274.932. (1) Whenever a public body, in accordance with ORS
274.920, creates new lands upon submersible or submerged lands
owned by the state, the public body has the right to purchase the
new lands as provided in this section. The public body shall pay
to the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } for the new lands the value
of the state-owned submersible or submerged lands upon which the
new lands were created immediately prior to the creation of the
new lands thereon and an amount prescribed by the department to
pay its administrative costs incurred with respect to the new
lands. Such payment shall be made by the public body within one
year after the date of the receipt by it of actual notice by the
department of the creation of the new lands, the value of the
state-owned submersible or submerged lands upon which the new
lands were created and the administrative costs incurred by the
department with respect to the new lands. If the public body
fails to make payment for the new lands as provided in this
subsection within one year after the date of the notice by the
department, the department may dispose of the new lands as
provided in ORS 274.915.
(2) If a public body and the department cannot agree on the
value of the state-owned submersible or submerged lands upon
which the new lands were created under subsection (1) of this
section, the value shall be determined by three appraisers, one
appointed by the public body, one appointed by the department and
the third appointed by the first two. The determination of the
appraisers shall be final. The cost of the third appraiser shall
be borne equally by the public body and the department.
SECTION 823. ORS 274.937 is amended to read:
274.937. (1) Whenever an individual, in accordance with ORS
274.920, creates new lands upon submersible or submerged lands
owned by the state, such individual has the right to purchase the
new lands as provided in this section. The individual shall pay
to the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } for the new lands the value
of the state-owned submersible or submerged lands upon which the
new lands were created immediately prior to the creation of the
new lands thereon and a reasonable portion of the private benefit
realized from the creation of the new lands as an addition to the
adjoining or opposite upland in front of which the new lands were
created. The individual shall also pay to the department for the
new lands the administrative costs incurred by the department
with respect to the new lands. If the individual fails to make
payment for the new lands as provided in this subsection within
six months after the date of the notice by the department, the
department may dispose of the new lands as provided in ORS
274.915.
(2) If an individual and the department cannot agree on the sum
to be paid for new lands under subsection (1) of this section,
the sum to be paid shall be determined by three appraisers, one
appointed by the individual, one appointed by the department and
the third appointed by the first two. The determination of the
appraisers shall be final. The cost of the third appraiser shall
be borne equally by the individual and the department.
SECTION 824. ORS 274.940 is amended to read:
274.940. Notwithstanding ORS 274.905, 274.915 to 274.925,
274.929, 274.932 and 274.937, the { - Department of State
Lands - } { + Oregon Department of Natural Resources + } may
reserve new lands from sale, transfer or lease where upon notice
and hearing it determines that the public interest requires such
lands to be preserved for recreation, conservation of fish and
wildlife or the development of navigation facilities, but in case
of such reservation the adjoining or opposite upland or riparian
owner shall be allowed reasonable access across such reserved new
lands to navigable water.
SECTION 825. ORS 274.963 is amended to read:
274.963. (1) The Legislative Assembly finds and declares that:
(a) Uncertainty exists as to the nature and extent of the
state's interest in land formerly submerged or submersible lands
within the bed and banks of navigable bodies of water in this
state.
(b) Such uncertainty causes conflicts in the use and ownership
of such land, endangers the rights and titles of landowners and
restricts the development of the economic, scenic and
recreational potential of such lands.
(c) Although the State Land Board and the { - Department of
State Lands - } { + Oregon Department of Natural Resources + }
are authorized by law to negotiate settlements with respect to
the ownership of such lands, action by the State of Oregon to
determine and assert its interests, if any, in such lands is
necessary for a prompt and orderly resolution of such
uncertainty.
(2) The Legislative Assembly finds therefore, that it is in the
public interest to direct the { - State Land - } board and the
department { - of State Lands - } to continue the study of the
Willamette River and to conduct studies of the lands formerly
submerged or submersible within other navigable bodies of water
in this state and, at the conclusion of each such study, to
resolve conflicting ownership claims between the state and
private owners by asserting interests remaining or vested in the
state in such lands.
SECTION 826. ORS 274.965 is amended to read:
274.965. (1) The State Land Board shall direct the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } to determine whether any interest remains
or is vested in the State of Oregon with respect to land that was
formerly submerged or submersible land within the bed and banks
of a navigable body of water in this state.
(2) In directing a determination by the department under
subsection (1) of this section, the board may designate a
specifically described area of land within which the department
shall make its determination.
(3) The board and the department shall conclude their study of
lands formerly submerged or submersible within the Willamette
River and carry out their duties under ORS 274.960 to 274.985
with respect to such lands prior to July 1, 1979.
(4) The board and the department shall carry out their duties
under ORS 274.960 to 274.985 with respect to lands formerly
submerged or submersible within navigable bodies of water in this
state, other than the Willamette River, prior to July 1, 1979.
SECTION 827. ORS 274.967 is amended to read:
274.967. (1) At the direction of the State Land Board pursuant
to ORS 274.965, the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } shall conduct a
study to determine:
(a) The location of any land that was formerly submerged or
submersible within the bed and banks of a navigable body of
water.
(b) Nature and extent of the interest, if any, that remains or
is vested in the State of Oregon with respect to such land.
(2) Upon completion of its study of land required by the board
pursuant to ORS 274.965, the department shall prepare a report of
its findings under subsection (1) of this section with respect to
such land. The department shall submit the report to the board.
(3) The department shall hold such public informational hearing
or hearings as the board may direct, with appropriate notice to
affected property owners.
SECTION 828. ORS 274.970 is amended to read:
274.970. (1) Upon receipt by the State Land Board of a report
submitted by the { - Department of State Lands - } { + Oregon
Department of Natural Resources + }, the board shall review the
report of the department.
(2) If the board finds that the report is incomplete in any
respect, it may refer the report back to the department for
further study. In case of such referral the board may request
additional information and may request modification of the
department's report.
(3) If a report is referred back to the department pursuant to
subsection (2) of this section, the department shall compile the
additional information, if any, that was requested and shall
revise the report in compliance with the directions, if any, of
the board.
(4) The board shall adopt a report of the department submitted
pursuant to ORS 274.967 (2), if it finds the report to be
complete and accurate.
SECTION 829. ORS 274.983 is amended to read:
274.983. (1) The State Land Board shall forward the original of
each declaration made pursuant to ORS 274.975 (1) and the
administrative record upon which such declaration was based to
the Director of the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + }.
(2) The director shall maintain each declaration in the
permanent deed records of the State of Oregon and maintain all
other materials submitted to the director with each such
declaration in the files of the { - Department of State
Lands - } { + Oregon Department of Natural Resources + }.
(3) A copy of a declaration or any part of the administrative
record upon which the declaration is based, that is in the
custody of the department pursuant to subsections (1) and (2) of
this section, and that is certified by the director as a true and
correct copy of the original thereof, shall be received into
evidence by any court of this state with like force and effect as
the original.
SECTION 830. ORS 274.992 is amended to read:
274.992. (1) Any person who violates any provision of ORS
274.040 or any rule, order or lease adopted or issued under ORS
274.040 shall be subject to a civil penalty in an amount to be
determined by the Director of the { - Department of State
Lands - } { + Oregon Department of Natural Resources + } of not
more than $1,000 per day of violation.
(2) Civil penalties under this section shall be imposed in the
manner provided in ORS 183.745.
(3) The provisions of this section are in addition to and not
in lieu of any other penalty or sanction provided by law.
(4) Any civil penalty recovered under this section shall be
deposited in the Common School Fund for use by the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } in administration of ORS 274.040 and as
otherwise required by law.
SECTION 831. ORS 274.994 is amended to read:
274.994. (1) The Director of the { - Department of State
Lands - } { + Oregon Department of Natural Resources + } shall
adopt by rule the amount of civil penalty that may be imposed for
a particular violation of ORS 274.040.
(2) In imposing a penalty under the schedule adopted under
subsection (1) of this section, the director shall consider the
following factors:
(a) The past history of the person incurring a penalty in
taking all feasible steps or procedures necessary or appropriate
to correct any violation.
(b) Any prior violations of statutes, rules, orders and leases
pertaining to submerged and submersible lands.
(c) The impact of the violation on public interests in fishery,
navigation and recreation.
(d) Any other factors determined by the director to be relevant
and consistent with the policy of ORS 274.040.
(3) The penalty imposed under this section may be remitted or
mitigated upon such terms and conditions as the director
determines to be proper and consistent with the policy of ORS
274.040. Upon the request of the person incurring the penalty,
the director shall consider evidence of the economic and
financial condition of the person in determining whether a
penalty shall be remitted or mitigated.
SECTION 832. ORS 276.412 is amended to read:
276.412. (1) Each month the Oregon Department of Administrative
Services may bill state agencies to which quarters in any state
building have been assigned an amount fixed by the department as
rent for the preceding month for the quarters assigned to such
agencies.
(2) Moneys so collected shall be deposited in the Oregon
Department of Administrative Services Operating Fund.
(3) This section applies to quarters occupied by the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } and to quarters leased with option to
purchase or under installment purchase agreement under ORS
276.429 (1).
SECTION 833. ORS 284.585 is amended to read:
284.585. In furtherance of the state economic development
strategy developed under ORS 284.570, the { - Department of
State Lands - } { + Oregon Department of Natural Resources + }
shall:
(1) Consistent with ORS 196.674, focus wetlands inventories on
areas described in the state economic development strategy. The
department may provide grants and technical assistance to local
governments to conduct the inventories.
(2) Develop a site assessment methodology for rapidly
determining the capacity of a site for economic development. The
methodology shall address site-specific impediments to
development and any costs associated with compliance with ORS
196.800 to 196.900.
SECTION 834. ORS 285A.615 is amended to read:
285A.615. (1) The Oregon Infrastructure Finance Authority shall
provide managerial assistance and technical referral services to
ports.
(2) The authority shall disseminate such research and technical
information as is available to the authority.
(3) The authority shall work cooperatively with existing
organizations and agencies that provide research and technical
services, including, but not limited to:
(a) The { - Department of State Lands - } { + Oregon
Department of Natural Resources + };
(b) The State Marine Board; and
(c) The Sea Grant College and marine extension services at
Oregon State University.
SECTION 835. ORS 287A.474 is amended to read:
287A.474. (1) The county fiscal officer shall prepare a report
of all warrants and checks issued more than two years prior to
July 1 of that year which have not been paid, pursuant to ORS
98.352.
(2) The lawful owner of any warrant or check included in any
list referred to in subsection (1) of this section, not presented
to the county treasurer for payment and not paid, thereafter may
file a claim with the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } in the manner
provided by ORS 98.392 and 98.396.
SECTION 836. ORS 293.450 is amended to read:
293.450. (1) Before October 1 of each year, the agency that
maintains an account pursuant to ORS 293.445 shall prepare a
report pursuant to ORS 98.352 of all checks or orders drawn by it
that have been outstanding for a period of more than two years
prior to July 1, and that have not been paid by the State
Treasurer.
(2) The report shall not include checks or orders that have
already been paid pursuant to indemnity bonds.
(3) The agency shall forward the report to the { - Department
of State Lands - } { + Oregon Department of Natural
Resources + } before November 1.
(4) The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } shall not require the
Department of Revenue to remit funds being held by the Department
of Revenue prior to January 1, 1994.
SECTION 837. ORS 293.455 is amended to read:
293.455. (1) After October 1, the State Treasurer may refuse
payment of the unpresented checks or orders included in the
report referred to in ORS 293.450. In accordance with procedures
developed by the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } and approved by the State
Treasurer, the agency shall instruct the State Treasurer to do
the following:
(a) Transfer and credit the amounts of the unpresented checks
or orders dedicated for general funding to the General Fund.
(b) Transfer all other funds to the department { - of State
Lands - } for deposit in the Unclaimed Property Revolving Fund
within the Common School Fund { - Account - } .
(c) Transfer and credit the amounts of the unpresented checks
issued under ORS chapters 316 and 317 to the department { - of
State Lands - } for deposit in the Unclaimed Property Revolving
Fund within the Common School Fund { - Account - } .
(2) In each instance, the State Treasurer shall issue an
official receipt for the amount so transferred or credited.
(3) If the State Treasurer pays the owner of an unpresented
check or order included in the report referred to in ORS 293.450
before the funds are transferred to the department { - of State
Lands - } , this information shall be reported to the department
{ - of State Lands - } .
SECTION 838. ORS 293.460 is amended to read:
293.460. The lawful owner of any check or order included in the
report referred to in ORS 293.450, not presented to the State
Treasurer for payment and not paid, thereafter may file a claim
with the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } in the manner provided by ORS
98.392 and 98.396.
SECTION 839. ORS 293.701 is amended to read:
293.701. As used in ORS 293.701 to 293.820, unless the context
requires otherwise:
(1) 'Council' means the Oregon Investment Council.
(2) 'Investment funds' means:
(a) Public Employees Retirement Fund referred to in ORS
238.660;
(b) Industrial Accident Fund referred to in ORS 656.632;
(c) Consumer and Business Services Fund referred to in ORS
705.145;
(d) Employment Department Special Administrative Fund referred
to in ORS 657.822;
(e) Insurance Fund referred to in ORS 278.425;
(f) Funds under the control and administration of the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources pursuant to ORS 273.101 + };
(g) Oregon Student Assistance Fund referred to in ORS 348.570;
(h) Moneys made available to the Commission for the Blind under
ORS 346.270 and 346.540 or rules adopted thereunder;
(i) Forest Development Revenue Bond Fund referred to in ORS
530.147 and State Forestry General Obligation Bond Fund referred
to in ORS 530.280;
(j) Oregon War Veterans' Fund referred to in ORS 407.495;
(k) Oregon War Veterans' Bond Sinking Account referred to in
ORS 407.515;
(L) World War II Veterans' Compensation Fund;
(m) World War II Veterans' Bond Sinking Fund;
(n) Funds in the hands of the State Treasurer that are not
required to meet current demands and that are invested in the
Oregon Short Term Fund established under ORS 293.728 or in
another commingled investment vehicle;
(o) State funds that are not subject to the control and
administration of officers or bodies specifically designated by
law;
(p) Funds derived from the sale of state bonds;
(q) Social Security Revolving Account referred to in ORS
237.490;
(r) Oregon University System Fund established by ORS 351.506
and the Higher Education Donation Fund established by ORS
351.130;
(s) Local Government Employer Benefit Trust Fund referred to in
ORS 657.513;
(t) Elderly and Disabled Special Transportation Fund
established by ORS 391.800;
(u) Education Stability Fund established by ORS 348.696;
(v) Deferred Compensation Fund established under ORS 243.411;
and
(w) Trust for Cultural Development Account established under
ORS 359.405.
(3) 'Investment officer' means the State Treasurer in the
capacity as investment officer for the council.
SECTION 840. ORS 308.270 is amended to read:
308.270. The assessor of each county shall, immediately after
January 1 of each year, obtain from the { - Department of State
Lands - } { + Oregon Department of Natural Resources + }, from
each other state agency holding title to real property and from
the appropriate agency of the United States, lists of public
lands sold, or contracted to be sold, and of final certificates
issued for lands in the county of the assessor during the year
ending at 1:00 a.m. of such January 1. The assessor shall place
such lands upon the assessment roll. The department { - of
State Lands - } and each other state agency holding title to
real property shall certify to the assessor a list or lists of
all public lands in the county sold by it, or contracted to be
sold, during such year.
SECTION 841. ORS 311.804 is amended to read:
311.804. (1) If taxes are levied or assessed upon lands that
are a portion of the assets of the Common School Fund while held
under certificate or contract of sale and the certificate or
contract is canceled by the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + }, such taxes or
assessments shall become void upon receipt of written notice from
the Director of the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } of cancellation
of the certificate or contract of sale. Officials having charge
of the records of taxes and assessments on lands included in
certificates or contracts of sale so canceled shall note on their
records the word 'invalidated,' and the date of cancellation.
(2) This section does not apply to irrigation or drainage
districts' tax liens if the irrigation or drainage districts were
organized prior to the inception of the department's lien.
SECTION 842. ORS 314.840 is amended to read:
314.840. (1) The Department of Revenue may:
(a) Furnish any taxpayer, representative authorized to
represent the taxpayer under ORS 305.230 or person designated by
the taxpayer under ORS 305.193, upon request of the taxpayer,
representative or designee, with a copy of the taxpayer's income
tax return filed with the department for any year, or with a copy
of any report filed by the taxpayer in connection with the
return, or with any other information the department considers
necessary.
(b) Publish lists of taxpayers who are entitled to unclaimed
tax refunds.
(c) Publish statistics so classified as to prevent the
identification of income or any particulars contained in any
report or return.
(d) Disclose a taxpayer's name, address, telephone number,
refund amount, amount due, Social Security number, employer
identification number or other taxpayer identification number to
the extent necessary in connection with collection activities or
the processing and mailing of correspondence or of forms for any
report, return or claim required in the administration of ORS
310.630 to 310.706, any local tax under ORS 305.620, or any law
imposing a tax upon or measured by net income.
(2) The department also may disclose and give access to
information described in ORS 314.835 to:
(a) The Governor of the State of Oregon or the authorized
representative of the Governor:
(A) With respect to an individual who is designated as being
under consideration for appointment or reappointment to an office
or for employment in the office of the Governor. The information
disclosed shall be confined to whether the individual:
(i) Has filed returns with respect to the taxes imposed by ORS
chapter 316 for those of not more than the three immediately
preceding years for which the individual was required to file an
Oregon individual income tax return.
(ii) Has failed to pay any tax within 30 days from the date of
mailing of a deficiency notice or otherwise respond to a
deficiency notice within 30 days of its mailing.
(iii) Has been assessed any penalty under the Oregon personal
income tax laws and the nature of the penalty.
(iv) Has been or is under investigation for possible criminal
offenses under the Oregon personal income tax laws. Information
disclosed pursuant to this paragraph shall be used only for the
purpose of making the appointment, reappointment or decision to
employ or not to employ the individual in the office of the
Governor.
(B) For use by an officer or employee of the Oregon Department
of Administrative Services duly authorized or employed to prepare
revenue estimates, or a person contracting with the Oregon
Department of Administrative Services to prepare revenue
estimates, in the preparation of revenue estimates required for
the Governor's budget under ORS 291.201 to 291.226, or required
for submission to the Emergency Board, or if the Legislative
Assembly is in session, to the Joint Committee on Ways and Means,
and to the Legislative Revenue Officer under ORS 291.342, 291.348
and 291.445. The Department of Revenue shall disclose and give
access to the information described in ORS 314.835 for the
purposes of this subparagraph only if:
(i) The request for information is made in writing, specifies
the purposes for which the request is made and is signed by an
authorized representative of the Oregon Department of
Administrative Services. The form for request for information
shall be prescribed by the Oregon Department of Administrative
Services and approved by the Director of the Department of
Revenue.
(ii) The officer, employee or person receiving the information
does not remove from the premises of the Department of Revenue
any materials that would reveal the identity of a personal or
corporate taxpayer.
(b) The Commissioner of Internal Revenue or authorized
representative, for tax administration and compliance purposes
only.
(c) For tax administration and compliance purposes, the proper
officer or authorized representative of any of the following
entities that has or is governed by a provision of law that meets
the requirements of any applicable provision of the Internal
Revenue Code as to confidentiality:
(A) A state;
(B) A city, county or other political subdivision of a state;
(C) The District of Columbia; or
(D) An association established exclusively to provide services
to federal, state or local taxing authorities.
(d) The Multistate Tax Commission or its authorized
representatives, for tax administration and compliance purposes
only. The Multistate Tax Commission may make the information
available to the Commissioner of Internal Revenue or the proper
officer or authorized representative of any governmental entity
described in and meeting the qualifications of paragraph (c) of
this subsection.
(e) The Attorney General, assistants and employees in the
Department of Justice, or other legal representative of the State
of Oregon, to the extent the department deems disclosure or
access necessary for the performance of the duties of advising or
representing the department pursuant to ORS 180.010 to 180.240
and the tax laws of this state.
(f) Employees of the State of Oregon, other than of the
Department of Revenue or Department of Justice, to the extent the
department deems disclosure or access necessary for such
employees to perform their duties under contracts or agreements
between the department and any other department, agency or
subdivision of the State of Oregon, in the department's
administration of the tax laws.
(g) Other persons, partnerships, corporations and other legal
entities, and their employees, to the extent the department deems
disclosure or access necessary for the performance of such
others' duties under contracts or agreements between the
department and such legal entities, in the department's
administration of the tax laws.
(h) The Legislative Revenue Officer or authorized
representatives upon compliance with ORS 173.850. Such officer or
representative shall not remove from the premises of the
department any materials that would reveal the identity of any
taxpayer or any other person.
(i) The Department of Consumer and Business Services, to the
extent the department requires such information to determine
whether it is appropriate to adjust those workers' compensation
benefits the amount of which is based pursuant to ORS chapter 656
on the amount of wages or earned income received by an
individual.
(j) Any agency of the State of Oregon, or any person, or any
officer or employee of such agency or person to whom disclosure
or access is given by state law and not otherwise referred to in
this section, including but not limited to the Secretary of State
as Auditor of Public Accounts under section 2, Article VI of the
Oregon Constitution; the Department of Human Services pursuant to
ORS 314.860 and 412.094; the Division of Child Support of the
Department of Justice and district attorney regarding cases for
which they are providing support enforcement services under ORS
25.080; the State Board of Tax Practitioners, pursuant to ORS
673.710; and the Oregon Board of Accountancy, pursuant to ORS
673.415.
(k) The Director of the Department of Consumer and Business
Services to determine that a person complies with ORS chapter 656
and the Director of the Employment Department to determine that a
person complies with ORS chapter 657, the following employer
information:
(A) Identification numbers.
(B) Names and addresses.
(C) Inception date as employer.
(D) Nature of business.
(E) Entity changes.
(F) Date of last payroll.
(L) The Director of Human Services to determine that a person
has the ability to pay for care that includes services provided
by the Eastern Oregon Training Center or the Department of Human
Services to collect any unpaid cost of care as provided by ORS
chapter 179.
(m) The Director of the Oregon Health Authority to determine
that a person has the ability to pay for care that includes
services provided by the Blue Mountain Recovery Center or the
Oregon State Hospital or the Oregon Health Authority to collect
any unpaid cost of care as provided by ORS chapter 179.
(n) Employees of the Employment Department to the extent the
Department of Revenue deems disclosure or access to information
on a combined tax report filed under ORS 316.168 is necessary to
performance of their duties in administering the tax imposed by
ORS chapter 657.
(o) The State Fire Marshal to assist the State Fire Marshal in
carrying out duties, functions and powers under ORS 453.307 to
453.414, the employer or agent name, address, telephone number
and standard industrial classification, if available.
(p) Employees of the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } for the purposes
of identifying, locating and publishing lists of taxpayers
entitled to unclaimed refunds as required by the provisions of
chapter 694, Oregon Laws 1993. The information shall be limited
to the taxpayer's name, address and the refund amount.
(q) In addition to the disclosure allowed under ORS 305.225,
state or local law enforcement agencies to assist in the
investigation or prosecution of the following criminal
activities:
(A) Mail theft of a check, in which case the information that
may be disclosed shall be limited to the stolen document, the
name, address and taxpayer identification number of the payee,
the amount of the check and the date printed on the check.
(B) The counterfeiting, forging or altering of a check
submitted by a taxpayer to the Department of Revenue or issued by
the Department of Revenue to a taxpayer, in which case the
information that may be disclosed shall be limited to the
counterfeit, forged or altered document, the name, address and
taxpayer identification number of the payee, the amount of the
check, the date printed on the check and the altered name and
address.
(r) The United States Postal Inspection Service or a federal
law enforcement agency, including but not limited to the United
States Department of Justice, to assist in the investigation of
the following criminal activities:
(A) Mail theft of a check, in which case the information that
may be disclosed shall be limited to the stolen document, the
name, address and taxpayer identification number of the payee,
the amount of the check and the date printed on the check.
(B) The counterfeiting, forging or altering of a check
submitted by a taxpayer to the Department of Revenue or issued by
the Department of Revenue to a taxpayer, in which case the
information that may be disclosed shall be limited to the
counterfeit, forged or altered document, the name, address and
taxpayer identification number of the payee, the amount of the
check, the date printed on the check and the altered name and
address.
(s) The United States Financial Management Service, for
purposes of facilitating the reciprocal offsets described in ORS
305.612.
(t) A municipal corporation of this state for purposes of
assisting the municipal corporation in the administration of a
tax of the municipal corporation that is imposed on or measured
by income, wages or net earnings from self-employment. Any
disclosure under this paragraph may be made only pursuant to a
written agreement between the Department of Revenue and the
municipal corporation that ensures the confidentiality of the
information disclosed.
(u) A consumer reporting agency, to the extent necessary to
carry out the purposes of ORS 314.843.
(3)(a) Each officer or employee of the department and each
person described or referred to in subsection (2)(a), (e) to (k)
or (n) to (q) of this section to whom disclosure or access to the
tax information is given under subsection (2) of this section or
any other provision of state law, prior to beginning employment
or the performance of duties involving such disclosure or access,
shall be advised in writing of the provisions of ORS 314.835 and
314.991, relating to penalties for the violation of ORS 314.835,
and shall as a condition of employment or performance of duties
execute a certificate for the department, in a form prescribed by
the department, stating in substance that the person has read
these provisions of law, that the person has had them explained
and that the person is aware of the penalties for the violation
of ORS 314.835.
(b) The disclosure authorized in subsection (2)(r) of this
section shall be made only after a written agreement has been
entered into between the Department of Revenue and the person
described in subsection (2)(r) of this section to whom disclosure
or access to the tax information is given, providing that:
(A) Any information described in ORS 314.835 that is received
by the person pursuant to subsection (2)(r) of this section is
confidential information that may not be disclosed, except to the
extent necessary to investigate or prosecute the criminal
activities described in subsection (2)(r) of this section;
(B) The information shall be protected as confidential under
applicable federal and state laws; and
(C) The United States Postal Inspection Service or the federal
law enforcement agency shall give notice to the Department of
Revenue of any request received under the federal Freedom of
Information Act, 5 U.S.C. 552, or other federal law relating to
the disclosure of information.
(4) The Department of Revenue may recover the costs of
furnishing the information described in subsection (2)(k) to (m)
and (o) to (q) of this section from the respective agencies.
SECTION 843. ORS 324.340 is amended to read:
324.340. (1) The revenues derived from the tax imposed by this
chapter including interest and penalties, shall be deposited in a
suspense account created pursuant to ORS 293.445. After payment
of refunds and the expenses of the Department of Revenue incurred
in the administration of this chapter, the remaining revenues
shall be paid into the Common School Fund and are continuously
appropriated to the { - Department of State Lands - } { +
Oregon Department of Natural Resources + } for the purposes for
which other moneys in the Common School Fund may be used.
(2) The amount of moneys necessary to pay refunds and expenses
of the Department of Revenue incurred in the administration of
this chapter are continuously appropriated to the Department of
Revenue from the suspense account referred to in subsection (1)
of this section.
SECTION 844. ORS 327.405 is amended to read:
327.405. The Common School Fund shall be composed of the
proceeds from the sales of the 16th and 36th sections of every
township or of any lands selected in lieu thereof, all the moneys
and clear proceeds of all property that may accrue to the state
by escheat or forfeiture, the proceeds of all gifts, devises and
bequests made by any person to the state for common school
purposes, the proceeds of all property granted to the state when
the purpose of such grant is not stated, all proceeds of the sale
of submerged and submersible lands as described in ORS 274.005,
all proceeds of the sale of the South Slough National Estuarine
Research Reserve as described in ORS 273.553 in the event such
property is sold, and all proceeds of the sale of the 500,000
acres of land to which this state is entitled by an Act of
Congress approved September 4, 1841, and of all lands selected
for capitol building purposes under Act of Congress approved
February 14, 1859. All such proceeds shall become a part of the
Common School Fund. Except as otherwise provided by law, the
income from the Common School Fund shall be applied exclusively
to the support and maintenance of common schools in each school
district. All lawful claims for repayment of moneys under the
provisions of ORS 98.302 to 98.436 and 98.992, or out of
escheated estates and for attorney fees and all other expenses in
any suit or proceeding relating to escheated estates shall be
audited by the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } and paid from the Common
School Fund { - Account - } .
SECTION 845. ORS 327.410 is amended to read:
327.410. The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } shall transfer the balance of
the Distributable Income Account of the Common School Fund
established under ORS 273.105, after deductions authorized by
law, to the Superintendent of Public Instruction semiannually, or
more frequently if the State Land Board so orders. The
superintendent shall immediately apportion the amount transferred
among the counties in proportion to the number of children
resident in each county between the ages of 4 and 20 as
determined pursuant to ORS 190.510 to 190.610. The superintendent
shall distribute to each school district within a county a share
of the county's apportionment that is based on the district's
average daily membership that resides within the county.
SECTION 846. ORS 327.425 is amended to read:
327.425. (1) All moneys belonging to the Common School Fund and
not required to meet current expenses shall be loaned by the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } at a rate of interest fixed by the
department except as otherwise specified in ORS 348.050 (3). The
department may consult with and obtain the recommendation of the
Oregon Investment Council in fixing the interest rate.
(2) Common School Fund moneys may be loaned in accordance with
the repayment plan contained in ORS 327.440 and in ORS 348.050
(4), except that loans on property within the corporate limits of
towns or cities shall be payable in not more than 15 years on the
amortization plan.
(3) If at any time there is a Common School Fund surplus over
and above all loans applied for, such portion of the surplus as
the department deems proper may be invested as provided in ORS
293.701 to 293.820. The department may require the State
Treasurer to deposit any such surplus, until it is able to loan
same, in qualified state depositories, upon the same terms and
conditions as other public funds are deposited therein, in which
event any interest received from any such state depository shall
be credited to the fund on which such interest was earned.
(4) Except as provided in ORS 348.050 (3), the department may
reduce the rate of interest to be paid upon outstanding loans
from the Common School Fund and any trust fund placed in its
charge, to correspond with the rate of interest to be paid upon
new loans, but no reduction in rate of interest shall be made
upon any of the loans until interest at the old rate has been
paid in full to date of receipt of remittance at the office of
the department.
SECTION 847. ORS 327.430 is amended to read:
327.430. (1) The principal and interest of all loans shall be
paid in lawful money of the United States.
(2) Except for loans to students authorized by ORS 348.050,
loans shall be secured by note specifying the fund from which the
loan is made and mortgage to the { - Department of State
Lands - } { + Oregon Department of Natural Resources + } on
improved land within this state, or upon range or grazing land
therein. Except as provided in ORS 273.815, the security for a
secured loan shall be not less than twice the value of the amount
loaned, and, except as otherwise provided in subsection (3) of
this section, shall be of unexceptional title and free from all
encumbrances. A secured loan may be secured by a deposit of
obligations of the United States or of bonds or warrants of this
state of a face value of not less than 25 percent in excess of
such loans.
(3) The department is not prohibited by subsection (2) of this
section from making a secured loan merely because the land
securing the loan is:
(a) Situated in an irrigation district, taking into
consideration the amount of bonded indebtedness of the district
as compared with the valuation of the real property of the
district.
(b) Subject to a reservation of mineral rights.
(c) Subject to a lease of any kind.
(d) Subject to a statutory lien for public improvements.
(e) Subject to an easement.
SECTION 848. ORS 327.435 is amended to read:
327.435. The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } shall adopt methods, rules
and regulations for ascertaining the value of and state of the
title of any lands proposed as security for any loan under the
provisions of ORS 327.425 and 327.430. All expenses of
ascertaining title shall be borne by the applicant. The
department may establish fees to be paid by the applicant for the
appraisal of any property offered as security.
SECTION 849. ORS 327.440 is amended to read:
327.440. Secured loans authorized by ORS 327.430 shall be
repaid in semiannual, quarterly or monthly installments, as may
mutually be agreed upon between the borrower and the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + }, and the installments shall aggregate each
year an amount equal to one year's interest on the original
principal of the loan plus an additional two percent of the
original principal sum, except as provided in ORS 327.425. Of the
installment so paid each year, the amount at the specified
interest rate on the principal remaining unpaid shall be credited
as interest and the balance credited to reduction of the loan
principal. Borrowers from the fund shall have the right to make
payments in excess of the amounts of such installments, and the
further right at any time to pay off such loans in part or full
with interest to payment dates.
SECTION 850. ORS 327.445 is amended to read:
327.445. The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } shall have custody of all
notes, bonds and other securities covering secured loans made by
it from any fund. The department shall take proper measures for
the prompt collection of interest due on all loans from any such
fund and place it to the credit of the fund from which the loan
was made, to be paid out as provided by law.
SECTION 851. ORS 327.450 is amended to read:
327.450. (1) The { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } shall foreclose
all mortgages taken to evidence loans from the Common School Fund
or other funds whenever more than one year's interest on the loan
is due and unpaid or whenever any mortgage becomes inadequate
security for the money loaned. The department may foreclose its
mortgage in the event of waste or any other impairment of the
property upon which the loan was made. { - It - } { + The
department + } may also foreclose for delinquency in payment of
principal or interest installments or in payment of taxes on such
property.
(2) The department may bid in the land in the name of the state
at a price not to exceed the total amount of the state's claim or
they may accept a deed or a release of the equity of redemption.
Should it appear to the satisfaction of the department that the
mortgagee cannot make the payment of interest and that
foreclosure would work an injustice and that foreclosure is not
then necessary to secure the fund from loss, the department may
extend the time for paying such interest not exceeding two years.
SECTION 852. ORS 327.455 is amended to read:
327.455. The Director of the { - Department of State
Lands - } { + Oregon Department of Natural Resources + } shall
keep a correct record of all purchases on foreclosures under ORS
327.450 with a description of the lands so purchased or acquired,
and a statement of the fund to which they belong. Such lands
shall be placed in the hands of the director and sold or leased
under the direction of the { + Oregon + } Department { + of
Natural Resources + } on the best terms obtainable, and the
proceeds, to the amount of the principal of the loans, shall be
paid into the fund from which the loans were made, and the excess
paid to the interest account of that fund.
SECTION 853. ORS 327.465 is amended to read:
327.465. Whenever the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } receives a deed
to the State of Oregon of lands covered by a mortgage given to
secure a loan from the Common School Fund in liquidation of the
debt represented by the loan, the department shall send a written
notice of the transaction to the county court of the county in
which such deeded lands are situated. Upon the receipt of such
notice, the county court shall cancel on the county tax records
unpaid taxes levied and assessed against such property in that
county. This section does not apply to tax liens of irrigation or
drainage districts organized prior to the effective date of the
lien of the department.
SECTION 854. ORS 327.470 is amended to read:
327.470. (1) Excepting tax liens of irrigation or drainage
districts organized before the effective date of the
{ - Department of State Lands' - } lien { + of the Oregon
Department of Natural Resources + }, whenever the State of Oregon
acquires property or lands through foreclosure of a mortgage
given to secure a loan from the Common School Fund and the state
has received the sheriff's deed made as a result of such
foreclosure proceedings and the period for redemption has
expired, the county court, or board of county commissioners, of
the county in which such lands are situated shall cancel on the
county tax records all the unpaid taxes levied and assessed
against the property.
(2) At the time the sheriff issues a certificate of sale in the
foreclosure proceedings of any department mortgage, the sheriff
shall serve a copy of the certificate upon the county judge, or
the chairperson of the board of county commissioners, of the
county in which the foreclosure takes place. The county shall
have a 60-day period from the date of the sheriff's certificate
in which to redeem the land by paying the department the full
amount of its investment in the land, including principal and
interest, foreclosure charges, abstracting expense, and any other
necessary expense incurred by the department in said foreclosure
proceedings.
SECTION 855. ORS 327.475 is amended to read:
327.475. Whenever the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } receives a deed
as described in ORS 327.465, the county court of the county in
which the lands are situated may, within one year from the
recorded date of such deed, acquire from the state the property
so conveyed by paying to the state the total amount of the
state's investment in the property.
SECTION 856. ORS 327.480 is amended to read:
327.480. (1) Where the judgment in a suit instituted by the
State of Oregon to cancel and set aside any deed of lands from
the State of Oregon alleged to have been procured by fraud and in
violation of law grants relief to the State of Oregon which is
conditioned on the payment of money, the { - Department of
State Lands - } { + Oregon Department of Natural Resources + }
may pay from the Common School Fund the sum necessary to comply
with the conditions of the judgment.
(2) This section shall not be considered as a legislative
interpretation relieving the defendants in such suit from
applying to the { - legislature - } { + Legislative
Assembly + } for repayment of the purchase price of such land, or
that the State of Oregon is not entitled to an accounting from
the purchaser, the assignee, or successor in interest, for school
or other lands obtained in violation of law, or that the State of
Oregon must repay the purchase price of such lands, with or
without interest as a condition of obtaining relief. This section
is intended to prevent the loss to the State of Oregon of lands
obtained in violation of law, where the court imposes as a
condition for granting relief the payment of money.
SECTION 857. ORS 327.484 is amended to read:
327.484. Moneys may be withdrawn periodically from the General
Fund by order of the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } to be credited to
the Common School Fund to reimburse the Common School Fund for
any loss which may result from the failure of any student to
repay the amounts loaned to the student under ORS 348.050 and
annually on July 1 to pay to the Common School Fund any amount
resulting from the failure of the total student loans to earn at
least four percent interest in the preceding fiscal year.
SECTION 858. ORS 348.050 is amended to read:
348.050. (1) Upon approval of the loan application of an
eligible student by the Oregon Student Assistance Commission, the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } may loan an amount from the Common School
Fund to the student in compliance with ORS 348.040 to 348.070.
The loan shall be evidenced by a written obligation but no
additional security shall be required. Notwithstanding any
provision in this section, the department may require cosigners
on the loans.
(2) Loans granted under ORS 348.040 to 348.070 to eligible
students by the department shall:
(a) Not exceed $1,000 in a single academic year to an
undergraduate student.
(b) Not exceed $4,000 in a single academic year to a graduate
or professional student.
(c) Not exceed $16,000 for all loans made to a student under
ORS 348.040 to 348.070.
(3) Payment of interest shall be as follows:
(a) Medical and dental student borrowers at the Oregon Health
and Science University and veterinary student borrowers at Oregon
State University shall be assessed at least six percent interest
per annum on the unpaid balance from the date of the note.
Interest payments by these borrowers shall be deferred until they
cease to be enrolled. During the interest deferment period, the
Oregon Student Assistance Commission shall pay the department the
negotiated rate of interest on an annual basis. The borrower
shall reimburse the Oregon Student Assistance Commission for
these interest payments as provided in subsection (4) of this
section. These borrowers shall commence direct payment of
accruing interest to the department at the time they cease to be
enrolled.
(b) All other borrowers are required to pay at least seven
percent interest per annum on the unpaid balance from the date of
the loan as provided in subsection (4) of this section.
(c) The Oregon Student Assistance Commission shall pay annually
to the department a maximum of three percent per annum on the
unpaid balance of all medical, dental and veterinary student
borrower loans. The rate of this special payment may vary
annually and will be negotiated by the Oregon Student Assistance
Commission and the department.
(d) The interest rates to be charged the borrower for the
school year as stated in paragraphs (a) and (b) of this
subsection shall be negotiated by the department and the Oregon
Student Assistance Commission.
(4)(a) Repayment of the principal and accruing and deferred
interest on loans shall be commenced not later than 12 months
after the student's graduation or other termination of the
student's education.
(b) Notwithstanding any other provision of this section,
medical, dental and veterinary student borrowers who enter
approved post-graduate study programs shall commence repayment of
the principal and the accruing and deferred interest on loans no
later than 12 months following the completion of the
post-graduate study program or 60 months, whichever is sooner.
(c) Repayment shall be completed in a maximum of 120 months
from the time repayment is commenced. However, nothing in this
section is intended to prevent repayment without penalty at an
earlier date than provided in this section or to prohibit the
department, with the consent of the Oregon Student Assistance
Commission, from extending the repayment period to a date other
than permitted by this subsection.
(5) Notwithstanding any other provision of this section, the
department may loan an amount from the Common School Fund to a
student under guaranteed programs authorized by the Higher
Education Act of 1965, as amended, commonly known as the
Guaranteed Student Loan Program and the Parent's Loans for
Undergraduate Students Program. Neither the limitations on
amounts set forth in subsection (2) of this section nor the
subsidies authorized by subsection (3) of this section apply to
such loans. ORS 327.484 does not apply to such loans.
SECTION 859. ORS 348.070 is amended to read:
348.070. To assist the Oregon Student Assistance Commission and
the { - Department of State Lands - } { + Oregon Department
of Natural Resources + } in determining the qualification of
schools, the Superintendent of Public Instruction shall maintain
a listing of career schools offering professional and technical
training that meets the occupational needs of the student.
SECTION 860. ORS 348.090 is amended to read:
348.090. In addition to and not in lieu of student loans
authorized pursuant to ORS 348.040 to 348.070, the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } may make loans to students who are Oregon
residents if the loans are guaranteed by a state agency. The
terms, conditions and rates of interest of such loans may be
determined by the department so as to take advantage of any
federal statute providing for full or partial payment of interest
on such loans.
SECTION 861. ORS 348.095 is amended to read:
348.095. From funds available therefor, the Oregon Student
Assistance Commission shall reimburse the { - Department of
State Lands - } { + Oregon Department of Natural Resources + }
for any loss resulting from default of a student loan under ORS
348.040 to 348.070. Funds appropriated under ORS 348.050 to pay
interest to the department on loans to medical, dental and
veterinary students shall also be available to reimburse the
department for any loss resulting from default of a student loan
under ORS 348.040 to 348.070.
SECTION 862. ORS 352.520 is amended to read:
352.520. All moneys belonging to the account designated by ORS
352.510 shall be loaned by the { - Department of State
Lands - } { + Oregon Department of Natural Resources + } in
accordance with the provisions of ORS 327.425 to 327.455
governing loans from the Common School Fund.
SECTION 863. ORS 352.530 is amended to read:
352.530. The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } shall pay the interest
received on loans from the account designated by ORS 352.510 to
the State Board of Higher Education semiannually.
SECTION 864. ORS 352.570 is amended to read:
352.570. All moneys belonging to the account designated by ORS
352.560 shall be loaned by the { - Department of State
Lands - } { + Oregon Department of Natural Resources + } in
accordance with ORS 327.425 to 327.455, governing loans from the
Common School Fund.
SECTION 865. ORS 352.580 is amended to read:
352.580. The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } shall pay the interest
received on loans from the account designated by ORS 352.560 to
the State Board of Higher Education semiannually.
SECTION 866. ORS 376.185 is amended to read:
376.185. (1) A way of necessity may not be established under
ORS 376.150 to 376.200 across land owned by the state or a
political subdivision of the state without the consent of the
governing body of the political subdivision or of the appropriate
agency of the state. The governing body of a political
subdivision of this state and any agency of the state shall not
unreasonably withhold consent required under this subsection.
(2) Whenever a way of necessity is sought over land owned by
the state or a political subdivision of the state, a copy of the
petition for the way of necessity, of the county report and of
the notice of hearing shall be forwarded by certified mail to:
(a) If the political subdivision owns the land, the governing
body of the political subdivision.
(b) If the state owns the land, to the { - Department of
State Lands - } { + Oregon Department of Natural Resources + }
and to each agency of the state that has use or control of the
land.
SECTION 867. ORS 376.620 is amended to read:
376.620. (1) When authorized by the { - Department of State
Lands - } { + Oregon Department of Natural Resources + }, it is
lawful for any person, firm or corporation to construct, maintain
and operate a skyline, high lead logging line, ferry skyline or
cable footbridge across any navigable river, bay, inlet or other
navigable waters within the state, not inconsistent with any Act
of Congress regulating the construction of bridges across
navigable waters. The structures shall be so constructed as not
to interfere unnecessarily with the navigation of such navigable
waters.
(2) The { - Department of State Lands - }
{ + department + } may make and enforce such regulations and
restrictions as { - it - } { + the department + } deems
necessary to carry out the purposes of this section and may make
reasonable charges for any services rendered in connection
therewith.
SECTION 868. ORS 421.628, as amended by section 9, chapter 516,
Oregon Laws 2001, section 45, chapter 598, Oregon Laws 2003, and
section 8, chapter 231, Oregon Laws 2009, is amended to read:
421.628. (1) Notwithstanding ORS 169.690, 195.025, 197.180,
215.130 (4) and 227.286 or any other provision of law, including
but not limited to statutes, ordinances, regulations and charter
provisions, and except for permit decisions delegated by the
federal government to the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + }, the decisions of
the Corrections Facilities Siting Authority, if approved by the
Governor, shall bind the state and all counties, cities and
political subdivisions in this state as to the approval of the
sites and the construction and operation of the proposed
corrections facilities. Except for those statutes and rules for
which permit decisions have been delegated by the federal
government to the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + }, all affected
state agencies, counties, cities and political subdivisions shall
issue the appropriate permits, licenses and certificates and
enter into any intergovernmental agreements as necessary for
construction and operation of the facilities, subject only to the
conditions of the siting decisions.
(2) Each state or local governmental agency that issues a
permit, license or certificate shall continue to exercise
enforcement authority over the permit, license or certificate.
(3) Except as provided in subsections (4) to (16) of this
section, nothing in ORS 421.611 to 421.630 expands or alters the
obligations of cities, counties and political subdivisions to pay
for infrastructure improvements for the proposed corrections
facilities.
(4) The Department of Corrections shall seek to obtain public
services necessary for the construction and operation of
corrections facilities from a public body providing such
services. The department may not acquire or develop and furnish
its own public services under this section that could be provided
by a public body unless the department concludes that the state
can achieve significant cost savings by doing so.
(5) Upon request of the Department of Corrections, a public
body furnishing public services shall make public services
available to the department that are either necessary for the
construction and operation of a corrections facility or required
by additions to or remodeling of a corrections facility sited or
constructed under ORS 421.611 to 421.630 or any other law. All
rates, terms and conditions of furnishing public services shall
be just, fair and reasonable. A just, fair and reasonable rate
shall assure the public body the recovery of the additional costs
of providing and maintaining the requested service to the
corrections facility, including, but not limited to, feasibility
and design engineering costs, and reasonable capacity
replacement, but may not exceed the public body's actual capital
and operating expenses, including reasonable reserves charged to
all ratepayers, for such service. The public body's rates, terms
and conditions shall be conclusively deemed to be just, fair and
reasonable if the department and public body so agree in writing.
(6) If the Department of Corrections and the public body cannot
agree on the rates, terms and conditions of furnishing necessary
public services to a corrections facility, either the department
or the public body may deliver to the other a notice of request
to mediate any disputed issues, including, but not limited to,
whether the department can achieve significant cost savings to
the state by acquiring or developing and furnishing its own
public services. If either the department or the public body
requests mediation, the other shall participate in good faith in
such mediation. Unless otherwise agreed by the department and the
public body, the mediation shall be concluded within 30 days of
delivery of the notice of request to mediate.
(7) If the mediation fails to resolve the issues in dispute, or
if mediation is not requested by either the Department of
Corrections or the public body, the department and the public
body may agree to submit any disputed matters to arbitration. The
arbitration may be either binding or nonbinding. If the
department and the public body cannot agree on the selection of
the arbitrator and the arbitration rules and procedure, upon
motion directed to the Court of Appeals, the Chief Judge of the
Court of Appeals shall select the arbitrator and decide the rules
and procedure. The arbitrator's decision and award shall be
guided by the standards set forth in this section. The decision
and award of the arbitrator shall be final and binding on the
department and the public body only if they agree to enter into
binding arbitration prior to the initiation of the arbitration.
If the department and public body have agreed to binding
arbitration of disputed issues, either the department or the
public body, if dissatisfied with the arbitrator's decision and
award, may file exceptions in the Court of Appeals within 21 days
of the issuance of the decision and award. Exceptions shall be
limited to the causes set forth in ORS 36.705 (1)(a) to (d), and
to the grounds for modification or correction of an award under
ORS 36.710. If any of the exceptions requires consideration of
facts that do not appear on the face of the arbitrator's decision
and award or is not stipulated to by the parties, the court may
appoint a master to take evidence and make the necessary factual
findings. The Court of Appeals' decision shall be final and not
subject to further review.
(8) If the Department of Corrections and the public body have
submitted disputed matters to nonbinding arbitration or if the
department and public body have chosen not to submit disputed
matters to arbitration, the department shall issue a preliminary
order to the public body that either concludes that the state can
achieve significant costs savings by acquiring or developing and
furnishing its own public services, or establishes the rates,
terms and conditions upon which the public body shall make
necessary public services available to the department for the
corrections facility. The public body, no later than 15 days
following the department's issuance of its preliminary order, may
contest the preliminary order by filing a written notice to that
effect with the department. The preliminary order shall become
final, binding and conclusive if the public body fails to request
a hearing within the time permitted in this section.
(9) If a hearing is requested, the department shall provide the
public body with an opportunity to be heard and shall issue its
final order upon conclusion of the hearing. The department shall
establish procedures to regulate and provide for the nature and
extent of the proofs and evidence and the method of taking and
furnishing the same in order to afford the public body a
reasonable opportunity for a fair hearing. The procedures shall
ensure that the public body has a reasonable opportunity to place
in the record the information upon which the public body relies
as a basis for its position. The department's order shall be
guided by the standards set forth in this section.
(10) Proceedings for review of the department's final order
shall be instituted when the affected public body files a
petition with the Court of Appeals that meets the following
requirements:
(a) The petition shall be filed within 21 days of issuance of
the final order on which the petition is based.
(b) The petitioner shall serve a copy of the petition by
registered or certified mail upon the Department of Corrections
and the Attorney General.
(11) Within 30 days after service of the petition, the
department shall transmit to the Court of Appeals the original or
a certified copy of the entire record and any findings that may
have been made.
(12) The Court of Appeals shall review the final order of the
Department of Corrections. The Court of Appeals' decision shall
be final and not subject to further review.
(13) Proceedings for review in the Court of Appeals under this
section shall be given priority over all other matters before the
Court of Appeals.
(14) The Department of Corrections or other state agency is not
required to make payments to the public body for necessary public
services to a corrections facility in excess of funds that are
legally available for such purposes.
(15) This section does not require a public body to furnish
public services to the Department of Corrections for a
corrections facility in the event that the Legislative Assembly
fails to make funds available in an amount sufficient to pay the
state's share of costs of such services as determined under this
section.
(16) As used in this section, 'public services' means off-site
infrastructure, including, but not limited to, sewer and water
systems and service, and road improvements.
SECTION 869. ORS 459.047, as amended by section 10, chapter
516, Oregon Laws 2001, is amended to read:
459.047. Upon request by a city or county responsible for
implementing a department approved solid waste management plan
which identifies a need for a landfill, and subject to policy
direction by the Environmental Quality Commission, the Department
of Environmental Quality shall:
(1) Assist the local government unit in the establishment of
the landfill including assisting in planning, location,
acquisition, development and operation of the site.
(2) Locate a site and issue a solid waste disposal permit under
ORS 459.205 to 459.385 for a landfill within the boundaries of
the requesting local government unit. Subject to the conditions
set forth in the permit and except for permit decisions delegated
by the federal government to the { - Department of State
Lands - } { + Oregon Department of Natural Resources + }, any
permit for a landfill authorized by the Environmental Quality
Commission under this subsection shall bind the state and all
counties and cities and /department political subdivisions in
this state as to the approval of the site and the construction
and operation of the proposed facility. Except for those statutes
and rules for which compliance decisions have been delegated by
the federal government to the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + }, all affected
state agencies, counties, cities and political subdivisions shall
issue the appropriate permits, licenses and certificates
necessary to construction and operation of the landfill, subject
only to condition of the site certificate. Each state or local
government agency that issues a permit, license or certificate
shall continue to exercise enforcement authority over such
permit, license or certificate.
SECTION 870. ORS 520.240 is amended to read:
520.240. (1) For the purpose of properly conserving the natural
resources of any single oil or gas pool or field, lessees under
ORS 274.705 to 274.860 and their representatives may unite with
each other jointly or separately, or jointly or separately with
others owning or operating lands not belonging to the state, in
collectively adopting and operating under a cooperative or unit
plan of development or operation of the pool or field, whenever
it is determined by the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } to be necessary
or advisable in the public interest.
(2) The department { - of State Lands - } may, with the
consent of the holders of the leases involved, establish, alter,
change and revoke any drilling and production requirements of
such leases, and make such regulations with reference to such
leases, with like consent on the part of the lessees, in
connection with the institution and operation of any such
cooperative or unit plan, as the department { - of State
Lands - } deems necessary or proper to secure the proper
protection of the interests of the state.
SECTION 871. ORS 541.230 is amended to read:
541.230. No lands belonging to the state, within the areas to
be irrigated from work constructed or controlled by the United
States or its authorized agents, shall be sold except in
conformity with the classification of farm units by the United
States. The title of such land shall not pass from the state
until the applicant therefor has fully complied with the
provisions of the laws of the United States and the regulations
thereunder concerning the acquisition of the right to use water
from such works, and shall produce the evidence thereof duly
issued. After the withdrawal of lands by the United States for
any irrigation project, no application for the purchase of state
lands within the limits of such withdrawal shall be accepted,
except under the conditions prescribed in this section. Any state
lands needed by the United States for irrigation works may, in
the discretion of the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + }, be conveyed to
it without charge.
SECTION 872. ORS 566.320 is amended to read:
566.320. The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } hereby is designated as the
state agency of the State of Oregon to make application to and
receive from the Secretary of Agriculture of the United States,
or any other proper federal official, pursuant and subject to the
provisions of Public Law 499, 81st Congress, approved May 3,
1950, the trust assets, either funds or property, held by the
United States as trustee in behalf of the Oregon Rural
Rehabilitation Corporation.
SECTION 873. ORS 566.330 is amended to read:
566.330. The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } is authorized to enter into
agreements with the Secretary of Agriculture of the United States
pursuant to section 2(f), Public Law 499, 81st Congress, upon
such terms and conditions and for such periods of time as may be
mutually agreeable, authorizing the secretary to accept,
administer, expend and use in the State of Oregon all or any part
of such trust assets for carrying out the purposes of Titles I
and II of the Bankhead-Jones Farm Tenant Act, in accordance with
the applicable provisions of Title IV thereof, as now or
hereafter amended, and to do all things necessary to effectuate
and carry out the purposes of such agreements.
SECTION 874. ORS 566.340 is amended to read:
566.340. Notwithstanding any other provisions of law, the funds
and proceeds of the trust assets that are not authorized to be
administered by the Secretary of Agriculture of the United States
under the provisions of ORS 566.330 shall be received by the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } and by it deposited in the State Treasury
in an account, separate and distinct from the General Fund.
Interest earned by the account shall be credited to the account.
Moneys in the account are continuously appropriated to the
Housing and Community Services Department and may be expended or
obligated by the Housing and Community Services Department for
the purposes of ORS 566.330 or for farmworker housing permissible
under the charter of the now dissolved Oregon Rural
Rehabilitation Corporation.
SECTION 875. ORS 566.360 is amended to read:
566.360. The United States and the Secretary of Agriculture of
the United States shall be held free from liability by virtue of
the transfer of the assets to the { - Department of State
Lands - } { + Oregon Department of Natural Resources + }
pursuant to ORS 566.310 to 566.360.
SECTION 876. ORS 652.405 is amended to read:
652.405. (1) The Commissioner of the Bureau of Labor and
Industries shall attempt for a period of not less than seven
years to make payment of wages collected under ORS 652.310 to
652.414 to the person entitled thereto.
(2) Wages collected by the commissioner under ORS 652.310 to
652.414 and remaining unclaimed for a period of more than seven
years from the date of collection shall, within 30 days after
June 30 of each year, be forfeited to the state and shall be paid
by the commissioner to the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } for the benefit
of the Common School Fund of this state. The department shall
issue a receipt for the money to the commissioner. The person
entitled to the wages or the person's heirs or personal
representatives may reclaim the wages paid into the Common School
Fund pursuant to this section within the time and in the manner
provided for estates which have escheated to the state.
SECTION 877. ORS 652.710 is amended to read:
652.710. (1) All moneys collected by an employer from employees
or retained from their wages for the purpose of providing for or
furnishing to such employees medical and surgical attention,
hospital care, X-rays, ambulance, nursing or any related service
or care contingent upon sickness or injury pursuant to a contract
are trust funds and shall be placed and kept in separate accounts
by the employer and shall promptly be paid over to the
contractor. Such funds shall in no event become a part of the
assets of the employer.
(2) If the employer fails to place and keep such funds in
separate accounts and pay them over to the contractor or if the
funds become commingled with the funds of the employer and the
employer becomes bankrupt, insolvent or goes through voluntary or
involuntary liquidation, or if a receiver is appointed to operate
or liquidate the affairs of the employer, the funds not paid to
the contractor shall be entitled to the same preference as given
to claims of the State Accident Insurance Fund Corporation, as
provided in ORS 656.562.
(3) On and after July 1, 1992, when an employer that is a group
health insurance policyholder subject to the provisions of ORS
743.560 receives notice that the group health insurance policy is
terminated by the insurer and the employer does not replace
coverage with any other group health insurance policy, the
employer shall notify all employees who were covered under the
terminated group policy. The employer's notification to the
employees shall:
(a) Explain the employee's rights regarding continuation or
conversion of coverage under state and federal law; and
(b) Be delivered to each employee in person or to the
employee's home address as recorded in the employer's records not
later than 10 working days after the receipt of notice from the
insurer pursuant to ORS 743.560 (3) to (5).
(4) In addition to any other penalty provided by law, the
Commissioner of the Bureau of Labor and Industries may assess a
civil penalty not to exceed $1,000 for each violation of
subsection (1) or (3) of this section.
(5) Civil penalties under this section shall be imposed as
provided in ORS 183.745.
(6) All sums collected as penalties pursuant to this section
shall be first applied toward reimbursement of the costs incurred
in determining the violations, conducting hearings under this
section and assessing and collecting such penalties. The
remainder, if any, of the sums collected as penalties pursuant to
this section shall be paid over by the commissioner to the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } for the benefit of the Common School Fund
of this state. The department shall issue a receipt for the money
to the commissioner.
(7) The Commissioner of the Bureau of Labor and Industries may
adopt rules reasonably necessary for the administration of this
section.
SECTION 878. ORS 653.256 is amended to read:
653.256. (1) In addition to any other penalty provided by law,
the Commissioner of the Bureau of Labor and Industries may assess
a civil penalty not to exceed $1,000 against any person who
willfully violates ORS 653.025, 653.030, 653.045, 653.050,
653.060 or 653.261 or any rule adopted thereunder.
(2) In addition to any other penalty provided by law, the
commissioner may assess a civil penalty not to exceed $1,000
against any person who intentionally violates ORS 653.077 or any
rule adopted thereunder.
(3) Civil penalties authorized by this section shall be imposed
in the manner provided in ORS 183.745.
(4)(a) All sums collected as penalties under this section shall
be first applied toward reimbursement of costs incurred in
determining the violations, conducting hearings under this
section and addressing and collecting the penalties.
(b) The remainder, if any, of the sums collected as penalties
under subsection (1) of this section shall be paid over by the
commissioner to the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } for the benefit
of the Common School Fund of this state. The department shall
issue a receipt for the money to the commissioner.
(c) The remainder, if any, of the sums collected as penalties
under subsection (2) of this section shall be paid over by the
commissioner to the Department of Human Services for the benefit
of the Breastfeeding Mother Friendly Employer Project. The
department shall issue a receipt for the moneys to the
commissioner.
SECTION 879. ORS 653.370 is amended to read:
653.370. (1) In addition to any other penalty provided by law,
the Commissioner of the Bureau of Labor and Industries may impose
upon any person who violates ORS 653.305 to 653.370 or any rule
adopted by the Wage and Hour Commission thereunder, a civil
penalty not to exceed $1,000 for each violation.
(2) Notwithstanding ORS 183.482, any petition for review of an
order imposing a civil penalty under this section must be filed
within 30 days following the date the order upon which the
petition is based is served.
(3) Except as otherwise provided in this section, civil
penalties under this section shall be imposed as provided in ORS
183.745.
(4) All sums collected as penalties pursuant to this section
shall be first applied toward reimbursement of the costs incurred
in determining the violations, conducting hearings under this
section and assessing and collecting such penalties. The
remainder, if any, of the sums collected as penalties pursuant to
this section shall be paid over by the commissioner to the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } for the benefit of the Common School Fund
of this state. The department shall issue a receipt for the money
to the commissioner.
(5)(a) Notwithstanding subsection (1) of this section, the
commissioner may not impose a civil penalty pursuant to this
section upon any person who provides evidence satisfactory to the
commissioner that:
(A) The person has paid a civil penalty to the United States
Department of Labor for violation of the child labor provisions
of the Federal Fair Labor Standards Act (29 U.S.C. 201 et seq.);
and
(B) The civil penalty involved the same factual circumstances
at issue before the commissioner.
(b) Notwithstanding subsection (1) of this section, the
commissioner shall refund any civil penalty previously imposed on
and collected from any person pursuant to this section if the
person provides evidence satisfactory to the commissioner that:
(A) The person has paid a civil penalty to the United States
Department of Labor for violation of the child labor provisions
of the Federal Fair Labor Standards Act (29 U.S.C. 201 et seq.);
and
(B) The civil penalty involved the same factual circumstances
underlying the commissioner's imposition of a civil penalty.
SECTION 880. ORS 659A.855 is amended to read:
659A.855. (1)(a) If the Commissioner of the Bureau of Labor and
Industries files a complaint under ORS 659A.825 alleging an
unlawful practice other than an unlawful employment practice, and
the commissioner finds that the respondent engaged in the
unlawful practice, the commissioner may, in addition to other
steps taken to eliminate the unlawful practice, impose a civil
penalty upon each respondent found to have committed the unlawful
practice.
(b) Civil penalties under this subsection may not exceed $1,000
for each violation.
(2)(a) Notwithstanding subsection (1)(b) of this section, if a
complaint is filed under ORS 659A.820 or 659A.825 alleging an
unlawful practice under ORS 659A.145 or 659A.421 or
discrimination under federal housing law and the commissioner
finds that a respondent has engaged in an unlawful practice under
ORS 659A.145 or 659A.421 or discrimination under federal housing
law, the commissioner may assess against the respondent, in
addition to any other relief available, a civil penalty:
(A) In an amount not exceeding $11,000;
(B) Except as provided in paragraph (b) of this subsection, in
an amount not exceeding $27,500 if the respondent has been
adjudged to have engaged in one other discriminatory housing
practice during the five-year period ending on the date of the
filing of the formal charges leading to the hearing; or
(C) Except as provided in paragraph (b) of this subsection, in
an amount not exceeding $55,000 if the respondent has been
adjudged to have engaged in two or more discriminatory housing
practices during the seven-year period ending on the date of the
filing of the formal charges leading to the hearing.
(b) If acts constituting the discriminatory housing practice
that is the object of the hearing were committed by the same
individual who has been previously adjudged to have committed
acts constituting a discriminatory housing practice, the civil
penalties listed in paragraph (a)(B) and (C) of this subsection
may be imposed regardless of the period of time between the
previous discriminatory housing practice and the discriminatory
housing practice that is the object of this hearing.
(3) Civil penalties under this section shall be imposed in the
manner provided by ORS 183.745.
(4) All sums collected as civil penalties under this section
must first be applied toward reimbursement of the costs incurred
in determining the violations, conducting hearings and assessing
and collecting the penalty. The remainder, if any, shall be paid
over by the commissioner to the { - Department of State
Lands - } { + Oregon Department of Natural Resources + } for
the benefit of the Common School Fund. The department shall issue
a receipt for the money to the commissioner.
SECTION 881. ORS 708A.430 is amended to read:
708A.430. (1) On the death of a depositor of a financial
institution, if the deposit is $25,000 or less, the financial
institution may, upon receipt of an affidavit from the person
claiming the deposit as provided in subsection (2) of this
section, pay the moneys on deposit to the credit of the deceased
depositor:
(a) To the surviving spouse on demand of the surviving spouse
at any time after the death of the depositor;
(b) If there is no surviving spouse, to the Oregon Health
Authority, on demand of the authority no less than 46 days and no
more than 75 days from the death of the depositor when there is a
preferred claim arising under ORS 416.350;
(c) If there is no surviving spouse or authority claim, to the
Department of Human Services, on demand of the department no less
than 46 days and no more than 75 days from the death of the
depositor when there is a preferred claim arising under ORS
411.708 or 411.795;
(d) If there is no surviving spouse and no authority or
department claim, to the depositor's surviving children 18 years
of age or older;
(e) If there is no surviving spouse, authority claim,
department claim or surviving child 18 years of age or older, to
the depositor's surviving parents; or
(f) If there is no surviving spouse, authority claim,
department claim, surviving child 18 years of age or older or
surviving parent, to the depositor's surviving brothers and
sisters 18 years of age or older.
(2) The affidavit shall:
(a) State where and when the depositor died;
(b) State that the total deposits of the deceased depositor in
all financial institutions in Oregon do not exceed $25,000;
(c) Show the relationship of the affiant to the deceased
depositor; and
(d) Embody a promise to pay the expenses of last sickness,
funeral expenses and just debts of the deceased depositor out of
the deposit to the full extent of the deposit if necessary, in
the order of priority prescribed by ORS 115.125, and to
distribute any remaining moneys to the persons who are entitled
to those moneys by law.
(3) In the event the depositor died intestate without known
heirs, an estate administrator of the { - Department of State
Lands - } { + Oregon Department of Natural Resources + }
appointed under ORS 113.235 shall be the affiant and shall
receive the moneys as escheat property.
(4) The financial institution shall determine the relationship
of the affiant to the deceased depositor. However, payment of the
moneys in good faith to the affiant discharges and releases the
transferor from any liability or responsibility for the transfer
in the same manner and with the same effect as if the property
had been transferred, delivered or paid to a personal
representative of the estate of the deceased depositor.
(5) A probate proceeding is not necessary to establish the
right of the surviving spouse, authority, department, surviving
child, surviving parent, surviving brothers and sisters or an
estate administrator of the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } to withdraw the
deposits upon the filing of the affidavit. If a personal
representative is appointed in an estate where a withdrawal of
deposits was made under this section, the person withdrawing the
deposits shall account for them to the personal representative.
(6) When a financial institution transfers moneys under
subsection (1) of this section, the transferor may require the
transferee to furnish the transferor a written indemnity
agreement, indemnifying the transferor against loss for moneys
paid to the extent of the amount of the deposit.
(7) This section is subject to the rights of other parties in
the account under ORS 708A.455 to 708A.515.
SECTION 882. ORS 708A.655 is amended to read:
708A.655. (1) This section applies to the safe deposit box of
any person who is the sole lessee or last surviving lessee of the
box and who has died.
(2) Upon being furnished with a certified copy of the
decedent's death certificate or other evidence of death
satisfactory to the Oregon operating institution, the Oregon
operating institution within which the box is located shall cause
or permit the box to be opened and the contents of the box
examined at the request of an individual who furnishes an
affidavit stating:
(a) That the individual believes the box may contain the will
of the decedent, a trust instrument creating a trust of which the
decedent was a trustor or a trustee at the time of the decedent's
death, documents pertaining to the disposition of the remains of
the decedent, documents pertaining to property of the estate of
the decedent or property of the estate of the decedent; and
(b) That the individual is an interested person as defined in
this section and wishes to open the box to conduct a will search
or trust instrument search, obtain documents relating to the
disposition of the decedent's remains or inventory the contents
of the box.
(3) For the purpose of this section, 'interested person ' means
any of the following:
(a) A person named as personal representative of the decedent
in a purported will of the decedent;
(b) The surviving spouse or any heir of the decedent;
(c) A person who was serving as the court-appointed guardian or
conservator of the decedent or as trustee for the decedent
immediately prior to the decedent's death;
(d) A person named as successor trustee in a purported trust
instrument creating a trust of which the decedent was a trustor
or a trustee at the time of the decedent's death;
(e) A person designated by the decedent in a writing that is
acceptable to the Oregon operating institution and is filed with
it prior to the decedent's death;
(f) A person who immediately prior to the death of the decedent
had the right of access to the box as an agent of the decedent
under a durable power of attorney; or
(g) If there are no heirs of the decedent, an estate
administrator of the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } appointed under
ORS 113.235.
(4) If the box is opened for the purpose of conducting a will
search, the Oregon operating institution shall remove any
document that appears to be a will, make a true and correct copy
of it and deliver the original will to a person designated in the
will to serve as the decedent's personal representative, or if no
such person is designated or the Oregon operating institution
cannot, despite reasonable efforts, determine the whereabouts of
such person, the Oregon operating institution shall retain the
will or deliver it to a court having jurisdiction of the estate
of the decedent. A copy of the will shall be retained in the box.
At the request of the interested person, a copy of the will,
together with copies of any documents pertaining to the
disposition of the remains of the decedent, may be given to the
interested person.
(5) If the box is opened for the purpose of conducting a trust
instrument search, the Oregon operating institution shall remove
any document that appears to be a trust instrument creating a
trust of which the decedent was a trustor or trustee at the time
of the decedent's death, make a true and correct copy of it and
deliver the original trust instrument to a person designated in
the trust instrument to serve as the successor trustee on the
death of the decedent. If no such person is designated or the
Oregon operating institution cannot, despite reasonable efforts,
determine the whereabouts of such person, the Oregon operating
institution shall retain the trust instrument. A copy of the
trust instrument shall be retained in the box. At the request of
any interested person, a copy of the trust instrument may be
given to the interested person.
(6) If the box is opened for the purpose of obtaining documents
pertaining to the disposition of the decedent's remains, the
Oregon operating institution shall comply with subsection (4) of
this section with respect to any will of the decedent found in
the box, and may in its discretion either:
(a) Make and retain in the box a copy of any documents
pertaining to the disposition of the remains of the decedent and
tender the original documents to the interested person; or
(b) Provide a copy of any documents pertaining to the
disposition of the remains of the decedent to the interested
person and retain the original documents in the box.
(7) If the box is opened for the purpose of making an inventory
of its contents, the Oregon operating institution shall comply
with subsection (4) or (5) of this section with respect to any
will or trust instrument of the decedent that is found in the
box, and shall cause the inventory to be made. The inventory
shall be attested to by a representative of the Oregon operating
institution and may be attested to by the interested person, if
the interested person is present when the inventory is made. The
Oregon operating institution shall retain the original inventory
in the box, and shall furnish a copy of the inventory to the
interested person upon request.
(8) The Oregon operating institution may presume the truth of
any statement contained in the affidavit required to be furnished
under this section, and when acting in reliance upon such an
affidavit, the Oregon operating institution is discharged as if
it had dealt with the personal representative of the decedent.
The Oregon operating institution is not responsible for the
adequacy of the description of any property included in an
inventory of the contents of a box, or for the conversion of the
property in connection with actions performed under this section,
except for conversion by intentional acts of the Oregon operating
institution or its employees, directors, officers or agents. If
the Oregon operating institution is not satisfied that the
requirements of this section have been satisfied, the Oregon
operating institution may decline to open the box.
(9) If the interested person does not furnish the key needed to
open the box, and the Oregon operating institution must incur
expense in gaining entry to the box, the Oregon operating
institution may require that the interested person pay the
expense of opening the box.
(10) Any examination of the contents of a box under this
section shall be conducted in the presence of at least one
employee of the Oregon operating institution.
SECTION 883. ORS 711.225 is amended to read:
711.225. (1) All deposits that remain unclaimed after six
months from the date of the written notice mentioned in ORS
711.220 (3), shall be reported and transferred by the Oregon
stock bank to the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } as unclaimed
property under ORS 98.302 to 98.436 and 98.992.
(2) A copy of the report of unclaimed deposits filed with the
department { - of State Lands - } shall be filed with the
Director of the Department of Consumer and Business Services.
SECTION 884. ORS 711.230 is amended to read:
711.230. (1) Claims of all persons, other than depositors,
against the institution shall be presented in writing to the
institution within one year after the date of first publication
provided for in ORS 711.220, unless barred by an earlier period
of limitation. Claims arising out of the expense of liquidation
may be filed at any time prior to the closing of the liquidation.
(2) The board of directors shall, within 30 days after the
presentment of a claim, allow or reject the claim, in whole or in
part, noting the same in their minutes. The board shall notify
the claimants in writing of its action, either by personal
service or by mail. Any claim rejected or disallowed is barred
unless action to adjudicate the claim is commenced within 60 days
after the date of service or mailing of notice of disallowance or
rejection.
(3) The board of directors may extend the time within which to
receive claims and continue the liquidation after the expiration
of the time allowed in this section for the filing of claims. Any
new claims filed after the time shall be allowed and paid or
rejected in the same manner as provided for other claims. If the
liquidation is continued, the transfer of unclaimed deposits to
the { - Department of State Lands - } { + Oregon Department
of Natural Resources + } may be delayed to such time as
designated by the Director of the Department of Consumer and
Business Services.
SECTION 885. ORS 711.235 is amended to read:
711.235. (1) After the expiration of the time provided in ORS
711.230 for the filing of claims or if the board of directors has
extended the time of liquidation then after the time set by them
and after payment of unclaimed deposits to the { - Department
of State Lands - } { + Oregon Department of Natural
Resources + }, the board of directors shall make a complete
report of the liquidation to the Director of the Department of
Consumer and Business Services and shall certify to the director
that all claims have been paid or finally determined.
(2) Any claims received and approved after the report has been
filed with the director shall be paid if the remaining assets are
sufficient.
(3) When the report has been approved by the director the board
of directors may proceed to liquidate the remaining assets and
distribute them to the stockholders or other persons entitled to
receive them according to their respective rights and interests
without further report to the director.
SECTION 886. ORS 711.590 is amended to read:
711.590. (1) Two years after the date of the final order
closing the liquidation of an institution, the Director of the
Department of Consumer and Business Services may withdraw any
unclaimed deposits or balances remaining to the credit of
dividend accounts, representing the aggregate of undelivered
checks or unpaid dividend funds in the possession of the
Department of Consumer and Business Services, and pay the funds
to the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } as unclaimed property to be disposed of as
provided in ORS 98.302 to 98.436 and 98.992.
(2) The interest earned on the dividend accounts while they
remain in the possession of the director shall be paid to the
State Treasurer to be credited to the Consumer and Business
Services Fund and the owner, the heirs or personal representative
of the owner have no claim to the interest.
SECTION 887. ORS 716.905 is amended to read:
716.905. (1) Acting under ORS 716.900 the directors shall
direct the mailing of a written notice of their intention to
close the Oregon nonstock bank to the last-known address of all
depositors and other creditors.
(2) All deposits and amounts reserved for creditors that remain
unclaimed after six months from the date of the written notice
required under subsection (1) of this section shall be reported
and transferred by the directors to the { - Department of State
Lands - } { + Oregon Department of Natural Resources + } as
unclaimed property under ORS 98.302 to 98.436 and 98.992.
(3) A copy of the report of unclaimed deposits and amounts
reserved for creditors filed with the department { - of State
Lands - } shall be filed with the Director of the Department of
Consumer and Business Services.
SECTION 888. ORS 716.910 is amended to read:
716.910. After the directors of an Oregon nonstock bank have
filed their report and deposited the unclaimed funds with the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } as required under ORS 716.905, the
directors shall report their proceedings to the Director of the
Department of Consumer and Business Services. Upon filing the
report and the petition of the directors with the Director of the
Department of Consumer and Business Services, the director shall
order the charter surrendered, the directors discharged from
liability accruing after the order, and the existence of the
Oregon nonstock bank terminated.
SECTION 889. ORS 723.466 is amended to read:
723.466. (1) On the death of a member of a credit union, if the
deposit to the credit of the deceased member is $25,000 or less,
the credit union may, upon receipt of an affidavit from the
person claiming the deposit as provided in subsection (2) of this
section, pay the moneys on deposit:
(a) To the surviving spouse on demand of the surviving spouse
at any time after the death of the member;
(b) If there is no surviving spouse, to the Oregon Health
Authority, on demand of the authority no less than 46 days and no
more than 75 days from the death of the member when there is a
preferred claim arising under ORS 416.350;
(c) If there is no surviving spouse or authority claim, to the
Department of Human Services, on demand of the department no less
than 46 days and no more than 75 days from the death of the
member when there is a preferred claim arising under ORS 411.708
or 411.795;
(d) If there is no surviving spouse and no authority or
department claim, to the member's surviving children 18 years of
age or older;
(e) If there is no surviving spouse, authority claim,
department claim or surviving child 18 years of age or older, to
the member's surviving parents; or
(f) If there is no surviving spouse, authority claim,
department claim, surviving child 18 years of age or older or
surviving parent, to the member's surviving brothers and sisters
18 years of age or older.
(2) The affidavit shall:
(a) State where and when the member died;
(b) State that the total deposits of the deceased member in all
financial institutions in this state do not exceed $25,000;
(c) Show the relationship of the affiant to the deceased
member; and
(d) Embody a promise to pay the expenses of last sickness,
funeral expenses and just debts of the deceased member out of the
deposit, to the full extent of the deposit if necessary, in the
order of priority prescribed by ORS 115.125, and to distribute
any remaining moneys to the persons who are entitled to those
moneys by law.
(3) In the event the member died intestate without known heirs,
an estate administrator of the { - Department of State
Lands - } { + Oregon Department of Natural Resources + }
appointed under ORS 113.235 shall be the affiant and shall
receive the moneys as escheat property.
(4) The credit union shall determine the relationship of the
affiant to the deceased member. However, payment of the moneys in
good faith to the affiant discharges and releases the transferor
from any liability or responsibility for the transfer in the same
manner and with the same effect as if the property had been
transferred, delivered or paid to a personal representative of
the estate of the deceased member.
(5) A probate proceeding is not necessary to establish the
right of the surviving spouse, authority, Department of Human
Services, surviving children, surviving parents, surviving
brothers and sisters or an estate administrator of the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } to withdraw the deposits upon the filing of
the affidavit. If a personal representative is appointed in an
estate where a withdrawal of deposits was made under this
section, the person withdrawing the deposits shall account for
them to the personal representative.
(6) When a credit union transfers moneys under subsection (1)
of this section, the transferor may require the transferee to
furnish the transferor with a written indemnity agreement,
indemnifying the transferor against loss for moneys paid to the
extent of the amount of the deposit.
(7) This section is subject to the rights of other parties to
the account under ORS 723.474 to 723.498.
SECTION 890. ORS 723.844 is amended to read:
723.844. (1) This section applies to the safe deposit box of
any person who is the sole lessee or last surviving lessee of the
box and who has died.
(2) Upon being furnished with a certified copy of the
decedent's death certificate or other evidence of death
satisfactory to the credit union, the credit union within which
the box is located shall cause or permit the box to be opened and
the contents of the box examined at the request of an individual
who furnishes an affidavit stating:
(a) That the individual believes the box may contain the will
of the decedent, a trust instrument creating a trust of which the
decedent was a trustor or a trustee at the time of the decedent's
death, documents pertaining to the disposition of the remains of
the decedent, documents pertaining to property of the estate of
the decedent or property of the estate of the decedent; and
(b) That the individual is an interested person as defined in
this section and wishes to open the box to conduct a will search
or trust instrument search, obtain documents relating to the
disposition of the decedent's remains or inventory the contents
of the box.
(3) For the purpose of this section, 'interested person ' means
any of the following:
(a) A person named as personal representative of the decedent
in a purported will of the decedent;
(b) The surviving spouse or any heir of the decedent;
(c) A person who was serving as the court-appointed guardian or
conservator of the decedent or as trustee for the decedent
immediately prior to the decedent's death;
(d) A person named as successor trustee in a purported trust
instrument creating a trust of which the decedent was a trustor
or a trustee at the time of the decedent's death;
(e) A person designated by the decedent in a writing that is
acceptable to the credit union and is filed with it prior to the
decedent's death;
(f) A person who immediately prior to the death of the decedent
had the right of access to the box as an agent of the decedent
under a durable power of attorney; or
(g) If there are no heirs of the decedent, an estate
administrator of the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } appointed under
ORS 113.235.
(4) If the box is opened for the purpose of conducting a will
search, the credit union shall remove any document that appears
to be a will, make a true and correct copy of it and deliver the
original will to a person designated in the will to serve as the
decedent's personal representative, or if no such person is
designated or the credit union cannot, despite reasonable
efforts, determine the whereabouts of such person, the credit
union shall retain the will or deliver it to a court having
jurisdiction of the estate of the decedent. A copy of the will
shall be retained in the box. At the request of the interested
person, a copy of the will, together with copies of any documents
pertaining to the disposition of the remains of the decedent, may
be given to the interested person.
(5) If the box is opened for the purpose of conducting a trust
instrument search, the credit union shall remove any document
that appears to be a trust instrument creating a trust of which
the decedent was a trustor or trustee at the time of the
decedent's death, make a true and correct copy of it and deliver
the original trust instrument to a person designated in the trust
instrument to serve as the successor trustee on the death of the
decedent. If no such person is designated or the credit union
cannot, despite reasonable efforts, determine the whereabouts of
such person, the credit union shall retain the trust instrument.
A copy of the trust instrument shall be retained in the box. At
the request of any interested person, a copy of the trust
instrument may be given to the interested person.
(6) If the box is opened for the purpose of obtaining documents
pertaining to the disposition of the decedent's remains, the
credit union shall comply with subsection (4) of this section
with respect to any will of the decedent found in the box, and
may in its discretion either:
(a) Make and retain in the box a copy of any documents
pertaining to the disposition of the remains of the decedent and
tender the original documents to the interested person; or
(b) Provide a copy of any documents pertaining to the
disposition of the remains of the decedent to the interested
person and retain the original documents in the box.
(7) If the box is opened for the purpose of making an inventory
of its contents, the credit union shall comply with subsection
(4) or (5) of this section with respect to any will or trust
instrument of the decedent that is found in the box, and shall
cause the inventory to be made. The inventory shall be attested
to by a representative of the credit union and may be attested to
by the interested person, if the interested person is present
when the inventory is made. The credit union shall retain the
original inventory in the box, and shall furnish a copy of the
inventory to the interested person upon request.
(8) The credit union may presume the truth of any statement
contained in the affidavit required to be furnished under this
section, and when acting in reliance upon such an affidavit, the
credit union is discharged as if it had dealt with the personal
representative of the decedent. The credit union is not
responsible for the adequacy of the description of any property
included in an inventory of the contents of a box, or for the
conversion of the property in connection with actions performed
under this section, except for conversion by intentional acts of
the credit union or its employees, directors, officers or agents.
If the credit union is not satisfied that the requirements of
this section have been satisfied, the credit union may decline to
open the box.
(9) If the interested person does not furnish the key needed to
open the box, and the credit union must incur expense in gaining
entry to the box, the credit union may require that the
interested person pay the expense of opening the box.
(10) Any examination of the contents of a box under this
section shall be conducted in the presence of at least one
employee of the credit union.
SECTION 891. ORS 725.910 is amended to read:
725.910. (1) The Director of the Department of Consumer and
Business Services may assess against any person who violates any
provision of this chapter, or any rule or final order of the
director under this chapter, a civil penalty in an amount
determined by the director of not more than $2,500. In addition,
if a licensee commits such a violation, the director may revoke
the license of the licensee.
(2) Civil penalties under this section shall be imposed as
provided in ORS 183.745.
(3) Except as provided in subsection (4) of this section, all
moneys collected under this section shall be paid to the State
Treasurer and credited as provided in ORS 705.145.
(4) In addition to any other penalty provided by law, the
director may assess against any person who lends money without
the license required under this chapter a civil penalty in an
amount equal to the interest received that exceeds nine percent
per annum. The director shall pay all moneys collected under this
subsection to the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } for the benefit
of the Common School Fund.
SECTION 892. ORS 777.095 is amended to read:
777.095. Any agreement between the Port of Astoria,
individually or in conjunction with another port, pursuant to ORS
777.090, and the State Land Board shall specify a division
between the parties of all net revenues accruing from the
management of the deepwater port facility at Tongue Point. The
State Land Board's share of the net revenues shall be transferred
to the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } and credited to the Common School Fund.
SECTION 893. ORS 777.100 is amended to read:
777.100. Annually, the directors of any agreeing ports and the
Director of the { - Department of State Lands - } { + Oregon
Department of Natural Resources + } shall report to appropriate
legislative committees the nature of all agreements made under
ORS 777.090 and accomplishments thereunder.
SECTION 894. ORS 777.347 is amended to read:
777.347. The { - Department of State Lands - } { + Oregon
Department of Natural Resources + } is authorized to consent to
annexation with respect to any land owned by the State of Oregon,
under the jurisdiction of the department, which is located in the
territory proposed to be annexed.
SECTION 895. ORS 783.400 is amended to read:
783.400. (1) As used in this section:
(a) 'Dry dock' means a graving dock or a floating dry dock.
(b) 'Floating dry dock' means a vessel or structure that can be
flooded to allow a ship to be floated in and drained to allow the
ship to come to rest on a dry platform.
(c) 'Fouling communities' means the matrix consisting of:
(A) Native or nonnative species attached to the hull of a ship
including, but not limited to, barnacles, bivalves, bryozoans,
tunicates and seaweeds; and
(B) Native or nonnative mobile species such as crustaceans, sea
stars and worms that may be unattached to the hull, but that
inhabit a fouling community or inhabit protected recesses and
crevices in the hull, such as sea chests.
(d) 'Fouling organisms' means native or nonnative species that
attach to the hull of a ship including, but not limited to,
sessile bottom-dwelling invertebrates, algae and microorganisms
such as bacteria and diatoms.
(e) 'Graving dock' means a paved excavation in the ground that
can be flooded to allow a ship to be floated in and drained to
allow that ship to come to rest on a dry platform.
(f) 'Hazardous materials' includes, but is not limited to,
asbestos, polychlorinated biphenyls, oil, fuel, bilge and ballast
water, paint and lead.
(g) 'Ocean shore' has the meaning given that term in ORS
390.605.
(h) 'Ship' means a vessel that weighs in excess of 200 gross
tons and operates upon navigable waterways.
(i) 'Shipbreaking' means the process of dismantling a ship for
scrap or disposal.
(j) 'Shipwreck' means a ship that has been stranded or
destroyed by being driven ashore or onto the rocks or the shoal.
(k) 'Waters of this state' has the meaning given that term in
ORS 196.800.
(2) In the State of Oregon, a person:
(a) May perform shipbreaking activities only in a dry dock.
(b) May not perform shipbreaking activities in a manner that
allows hazardous materials, fouling communities or fouling
organisms that are in or on the ship to enter the waters of this
state or the ocean shore.
(3) Notwithstanding subsection (2) of this section, a person
may in the waters of this state:
(a) Dismantle for removal a ship that has been shipwrecked if
the { - Department of State Lands - } { + Oregon Department
of Natural Resources + } determines, in consultation with others
as the department finds appropriate including, but not limited
to, other state agencies, the United States Coast Guard and the
shipowner, that it is physically impracticable to move the
shipwreck to a dry dock.
(b) Partially dismantle a ship as may be required in the
process of ship repair.
(4) Subsection (2) of this section does not apply to the
shipbreaking of a flat-bottomed barge that is not self-propelled
and that operates in the waters of this state.
(5) This section does not relieve a person from compliance with
other state or local laws that apply to shipbreaking, shipwrecks
or ship repair including, but not limited to, laws relating to
hazardous materials, fouling communities or fouling organisms.
SECTION 896. ORS 830.909 is amended to read:
830.909. (1) A person commits the offense of abandoning a boat,
floating home or boathouse if the person leaves a boat, floating
home or boathouse on the waters of this state or upon any public
or private property except with the permission of the property
owner, or at an established or attended moorage or in any area
leased for occupation by the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } under ORS
chapter 274.
(2) The owner of the boat, floating home or boathouse as shown
by the records of the State Marine Board shall be considered
responsible for the abandonment of the boat, floating home or
boathouse in the manner prohibited by this section and shall be
liable for the cost of removal, cleanup and disposition of the
abandoned boat, floating home or boathouse.
(3) A boat, floating home or boathouse abandoned in violation
of this section is subject to the provisions for removal of an
abandoned boat, floating home or boathouse under ORS 830.912 and
830.914 and to being sold or disposed of as provided under ORS
98.245.
SECTION 897. Section 2, chapter 45, Oregon Laws 1989, is
amended to read:
{ + Sec. 2. + } (1) Notwithstanding any other provision of
ORS
{ - 541.605 to 541.685 - } { + 196.800 to 196.900 + }:
(a) As used in ORS { - 541.605 to 541.685 - } { + 196.800
to 196.900 + }, ' fill' means the deposit by artificial means of
material in any waters of this state.
(b) In the manner provided by ORS { - 541.640 - }
{ + 196.850 + }, the Director { + of the Oregon Department of
Natural Resources + } may provide a general exception from the
application of ORS { - 541.605 to 541.685 - } { + 196.800 to
196.900 + } for fills that involve less than 50 cubic yards of
material and will not result in substantial harm to the water
resources of this state.
(2) This section does not become operative until the federal
Environmental Protection Agency grants authority to the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } to administer permits for the discharge of
dredged or fill material under section 404 of the Federal Water
Pollution Control Act (P.L. 92-500, as amended).
SECTION 898. Section 11, chapter 516, Oregon Laws 2001, as
amended by section 19, chapter 11, Oregon Laws 2009, is amended
to read:
{ + Sec. 11. + } The amendments to ORS 196.800, 196.810,
196.850, 196.895, 196.905, 196.990, 390.835, 421.628 and 459.047
by sections 1 to 10, chapter 516, Oregon Laws 2001, and the
repeal of section 2, chapter 45, Oregon Laws 1989, by section 13,
chapter 516, Oregon Laws 2001, become operative on January 2 of
the even-numbered year following the date the United States
Environmental Protection Agency grants authority by letter to the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } to administer permits for the discharge of
dredge or fill materials under section 404 of the Federal Water
Pollution Control Act (P.L. 92-500, as amended) and the
Legislative Assembly approves the grant of authority.
SECTION 899. Section 12, chapter 516, Oregon Laws 2001, is
amended to read:
{ + Sec. 12. + } (1) The { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } may take any
action necessary to prepare to fully implement the provisions of
{ - this 2001 Act - } { + chapter 516, Oregon Laws 2001, + }
prior to the operative date of this 2001 Act.
(2) The department shall periodically report to the appropriate
committee of the Legislative Assembly on the status of its effort
to assume authority to administer permits for the discharge of
dredge or fill materials under section 404 of the Federal Water
Pollution Control Act (P.L. 92-500, as amended).
(3) After the Legislative Assembly approves the grant of
authority, the department shall notify the Legislative Assembly
prior to the transfer of authority from the United States
Environmental Protection Agency.
SECTION 900. Section 14, chapter 516, Oregon Laws 2001, is
amended:
{ + Sec. 14. + } If, after assuming authority to administer
permits for the discharge of dredge or fill materials under
section 404 of the Federal Water Pollution Control Act (P.L.
92-500, as amended), the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + } seeks to
relinquish the authority granted to the department by the federal
government, the department shall, in compliance with ORS 171.130
and at least two years prior to the anticipated date for
relinquishing the authority, submit to the Legislative Assembly a
proposed legislative measure designed to implement a state
permitting program for the dredging and filling of materials in
the waters of this state.
SECTION 901. Section 28, chapter 23, Oregon Laws 2010, is
amended to read:
{ + Sec. 28. + } (1) The Director of the Department of
Consumer and Business Services may assess a civil penalty of not
more than $2,500 against a person who violates a provision of
sections 1 to 28 { + , chapter 23, Oregon Laws 2010, + } { - of
this 2010 Act - } or a rule the director adopted or final order
the director issued under sections 1 to 28 { + , chapter 23,
Oregon Laws 2010 + } { - of this 2010 Act - } . The director,
in addition to imposing a penalty under this subsection for the
violation, may revoke the licensee's license.
(2) A civil penalty under this section must be imposed as
provided in ORS 183.745.
(3) Except as provided in subsection (4) of this section,
moneys collected under this section must be paid to the State
Treasurer and credited as provided in ORS 705.145.
(4) In addition to any other penalty provided by law, the
director may assess against a person who makes a payday loan or
title loan in violation of section 3 { + , chapter 23, Oregon
Laws 2010, + } { - of this 2010 Act - } a civil penalty in an
amount equal to the interest the person receives that exceeds
nine percent per annum. The director shall pay all moneys
collected under this subsection to the { - Department of State
Lands - } { + Oregon Department of Natural Resources + } for
the benefit of the Common School Fund.
{ +
DEPARTMENT OF LAND CONSERVATION AND DEVELOPMENT + }
{ +
(Abolishment and Transfer of + }
{ +
Duties, Functions and Powers) + }
SECTION 902. { + (1) The Department of Land Conservation and
Development and the Land Conservation and Development Commission
are abolished. On the operative date of this section, the tenure
of office of the members of the Land Conservation and Development
Commission and of the Director of the Department of Land
Conservation and Development ceases.
(2)(a) All the duties, functions and powers of the Department
of Land Conservation and Development are imposed upon,
transferred to and vested in the Oregon Department of Natural
Resources. + }
{ + (b) Where the law imposed the duty or function upon or
vested the power in the Director of the Department of Land
Conservation and Development, the duty, function or power is
imposed upon, transferred to or vested in the Director of the
Oregon Department of Natural Resources.
(c) Where the law imposed the duty or function upon or vested
the power in the Land Conservation and Development Commission,
the duty, function or power is imposed upon, transferred to and
vested in the Oregon Natural Resources Commission. + }
{ +
(Transfer of Records, Property and Employees) + }
SECTION 903. { + (1) The Director of the Department of Land
Conservation and Development and the Land Conservation and
Development Commission shall:
(a) Deliver to the Oregon Department of Natural Resources all
records and property within the jurisdiction of the director or
the commission that relate to the duties, functions and powers
transferred by section 902 of this 2011 Act; and
(b) Transfer to the Oregon Department of Natural Resources
those employees engaged primarily in the exercise of the duties,
functions and powers transferred by section 902 of this 2011 Act.
(2) The Director of the Oregon Department of Natural Resources
and the Oregon Natural Resources Commission shall take possession
of the records and property, and shall take charge of the
employees and employ them in the exercise of the duties,
functions and powers transferred by section 902 of this 2011 Act,
without reduction of compensation but subject to change or
termination of employment or compensation as provided by law.
(3) The Governor shall resolve any dispute between the
Department of Land Conservation and Development and the Oregon
Department of Natural Resources, or the Land Conservation and
Development Commission and the Oregon Natural Resources
Commission, relating to transfers of records, property and
employees under this section, and the Governor's decision is
final. + }
{ +
(Transfer of Unexpended Revenues) + }
SECTION 904. { + (1) The unexpended balances of amounts
authorized to be expended by the Department of Land Conservation
and Development for the biennium beginning July 1, 2011, from
revenues dedicated, continuously appropriated, appropriated or
otherwise made available for the purpose of administering and
enforcing the duties, functions and powers transferred by section
902 of this 2011 Act are transferred to and are available for
expenditure by the Oregon Department of Natural Resources for the
biennium beginning July 1, 2011, for the purpose of administering
and enforcing the duties, functions and powers transferred by
section 902 of this 2011 Act.
(2) The expenditure classifications, if any, established by
Acts authorizing or limiting expenditures by the Department of
Land Conservation and Development remain applicable to
expenditures by the Oregon Department of Natural Resources under
this section.
(3) The unexpended balances of amounts authorized to be
expended by the Land Conservation and Development Commission for
the biennium beginning July 1, 2011, from revenues dedicated,
continuously appropriated, appropriated or otherwise made
available for the purpose of administering and enforcing the
duties, functions and powers transferred by section 902 of this
2011 Act are transferred to and are available for expenditure by
the Oregon Natural Resources Commission for the biennium
beginning July 1, 2011, for the purpose of administering and
enforcing the duties, functions and powers transferred by section
902 of this 2011 Act.
(4) The expenditure classifications, if any, established by
Acts authorizing or limiting expenditures by the Land
Conservation and Development Commission remain applicable to
expenditures by the Oregon Natural Resources Commission under
this section. + }
{ +
(Action, Proceeding and Prosecution) + }
SECTION 905. { + The transfer of duties, functions and powers
to the Oregon Department of Natural Resources by section 902 of
this 2011 Act does not affect any action, proceeding or
prosecution involving or with respect to such duties, functions
and powers begun before and pending at the time of the transfer,
except that:
(1) The Oregon Department of Natural Resources is substituted
for the Department of Land Conservation and Development where the
Department of Land Conservation and Development is involved in
the action, proceeding or prosecution; or
(2) The Oregon Natural Resources Commission is substituted for
the Land Conservation and Development Commission where the Land
Conservation and Development Commission is involved in the
action, proceeding or prosecution. + }
{ +
(Liability, Duty and Obligation) + }
SECTION 906. { + (1) Nothing in sections 902 to 908 of this
2011 Act, the amendments to statutes by sections 28 to 411, 422
to 576, 585 to 901, 912 to 1090, 1099 to 1112, 1122 to 1257, 1269
to 1749k, 1758 to 1780, 1791 to 2081 and 2091 to 2160 of this
2011 Act or the repeal of ORS 197.030, 197.035, 197.075, 197.085
or 197.095 by section 2161 of this 2011 Act relieves a person of
a liability, duty or obligation accruing under or with respect to
the duties, functions and powers transferred by section 902 of
this 2011 Act. The Oregon Department of Natural Resources may
undertake the collection or enforcement of any such liability,
duty or obligation.
(2) The rights and obligations of the Department of Land
Conservation and Development, or of the Land Conservation and
Development Commission, legally incurred under contracts, leases
and business transactions executed, entered into or begun before
the operative date of section 902 of this 2011 Act are
transferred to the Oregon Department of Natural Resources or the
Oregon Natural Resources Commission. For the purpose of
succession to these rights and obligations:
(a) The Oregon Department of Natural Resources is a
continuation of the Department of Land Conservation and
Development where the right or obligation was incurred by the
Department of Land Conservation and Development; or
(b) The Oregon Natural Resources Commission is a continuation
of the Land Conservation and Development Commission where the
right or obligation was incurred by the Land Conservation and
Development Commission. + }
{ +
(Rules) + }
SECTION 907. { + (1) Notwithstanding the transfer of duties,
functions and powers by section 902 of this 2011 Act, the rules
of the Department of Land Conservation and Development, or of the
Land Conservation and Development Commission, in effect on the
operative date of section 902 of this 2011 Act continue in effect
until superseded or repealed by rules of the Oregon Department of
Natural Resources or the Oregon Natural Resources Commission.
(2) References in rules of the Department of Land Conservation
and Development to the Department of Land Conservation and
Development, or to an officer or employee of the Department of
Land Conservation and Development, are considered to be
references to the Oregon Department of Natural Resources or to an
officer or employee of the Oregon Department of Natural
Resources.
(3) References in rules of the Land Conservation and
Development Commission to the Land Conservation and Development
Commission, or to an officer or employee of the Land Conservation
and Development Commission, are considered to be references to
the Oregon Natural Resources Commission or to an officer or
employee of the Oregon Natural Resources Commission. + }
{ +
(References) + }
SECTION 908. { + (1) Whenever, in any uncodified law or
resolution of the Legislative Assembly or in any rule, document,
record or proceeding authorized by the Legislative Assembly,
reference is made to the Department of Land Conservation and
Development, or to an officer or employee of the Department of
Land Conservation and Development, the reference is considered to
be a reference to the Oregon Department of Natural Resources or
to an officer or employee of the Oregon Department of Natural
Resources.
(2) Whenever, in any uncodified law or resolution of the
Legislative Assembly or in any rule, document, record or
proceeding authorized by the Legislative Assembly, reference is
made to the Land Conservation and Development Commission, or to
an officer or employee of the Land Conservation and Development
Commission, the reference is considered to be a reference to the
Oregon Natural Resources Commission or to an officer or employee
of the Oregon Natural Resources Commission. + }
{ +
(Agency Name Change) + }
SECTION 909. { + (1) For the purpose of harmonizing and
clarifying statutory law, the Legislative Counsel may substitute
for words designating the 'Department of Land Conservation and
Development,' wherever they occur in statutory law, words
designating the 'Oregon Department of Natural Resources. '
(2) For the purpose of harmonizing and clarifying statutory
law, the Legislative Counsel may substitute for words designating
the 'Director of the Department of Land Conservation and
Development,' wherever they occur in statutory law, words
designating the 'Director of the Oregon Department of Natural
Resources.' + }
{ +
(Account Name Change) + }
SECTION 910. { + For the purpose of harmonizing and clarifying
statutory law, the Legislative Counsel may substitute for words
designating the 'Land Conservation and Development Account, '
wherever they occur in statutory law, words designating the '
Oregon Natural Resources Fund.' + }
{ +
(Commission Name Change) + }
SECTION 911. { + For the purpose of harmonizing and clarifying
statutory law, the Legislative Counsel may substitute for words
designating the 'Land Conservation and Development Commission, '
wherever they occur in statutory law, words designating the '
Oregon Natural Resources Commission.' + }
{ +
(Conforming Amendments) + }
SECTION 912. ORS 94.538, as amended by section 2, chapter 5,
Oregon Laws 2010, is amended to read:
94.538. (1) One or more governmental units may establish a
transferable development credit system, including a process for
allowing transfer of development interests from a sending area
within the jurisdiction of one governmental unit to a receiving
area within the jurisdiction of another governmental unit.
(2) If the transferable development credit system allows
transfer of development interests between the jurisdictions of
different governmental units, the process must be described in an
intergovernmental agreement under ORS 190.003 to 190.130 entered
into by the governmental units with land use jurisdiction over
the sending and receiving areas and, for purposes of
administration of the process, the { - Department of Land
Conservation and Development - } { + Oregon Department of
Natural Resources + }. The intergovernmental agreement may
contain provisions for sharing between governmental units of the
prospective ad valorem tax revenues derived from new development
in the receiving area authorized under the system.
(3) A transferable development credit system must provide for:
(a) The record owner of a lot, parcel or tract in a sending
area to voluntarily sever and sell development interests of the
lot, parcel or tract for use in a receiving area;
(b) A potential developer of land in a receiving area to
purchase transferable development credits that allow a higher
intensity use or development of the land, including development
bonuses or other incentives not otherwise allowed, through
changes to the planning and zoning or waivers of density, height
or bulk limitations in the receiving area;
(c) The governmental units administering the system to
determine the type, extent and intensity of uses or development
allowed in the receiving area, based on the transferable
development credits generated from severed and sold development
interests; and
(d) The holder of a recorded instrument encumbering a lot,
parcel or tract from which the record owner proposes to sever
development interests for transfer to be given prior written
notice of the proposed transaction and to approve or disapprove
the transaction.
(4) A transferable development credit system must offer:
(a) Incentives for a record owner of resource land to
voluntarily prohibit or limit development on the resource land
and to sell or transfer forgone development to lands within
receiving areas.
(b) Benefits to landowners by providing monetary compensation
for limiting development in sending areas.
(c) Benefits to developers by allowing increased development
and development incentives in receiving areas.
(5) The governmental units administering a transferable
development credit system must:
(a) Designate sending areas that are chosen to achieve the
requirements set forth in this section and the objectives set
forth in ORS 94.534.
(b) Designate receiving areas that are chosen to achieve the
requirements set forth in this section and the objectives set
forth in ORS 94.534.
(c) Provide development bonuses and incentives to stimulate the
demand for the purchase and sale of transferable development
credits.
(d) Require that the record owner of development interests
transferred as development credits from a sending area to a
receiving area cause to be recorded, in the deed records of the
county in which the sending area is located, a conservation
easement that:
(A) Limits development of the lot, parcel or tract from which
the interests are severed consistent with the transfer; and
(B) Names an entity, approved by the governmental units
administering the system, as the holder of the conservation
easement.
(e) Maintain records of:
(A) The lots, parcels and tracts from which development
interests have been severed;
(B) The lots, parcels and tracts to which transferable
development credits have been transferred; and
(C) The allowable level of use or development for each lot,
parcel or tract after a transfer of development credits.
(f) Provide periodic summary reports of activities of the
system to the { - department - } { + Oregon Department of
Natural Resources + }.
(6) A receiving area must be composed of land that is within an
urban growth boundary or, subject to subsection (7) of this
section, within an urban reserve established under ORS 195.137 to
195.145 and that is:
(a) Appropriate and suitable for development.
(b) Not subject to limitations designed to protect natural
resources, scenic and historic areas, open spaces or other
resources protected under the statewide land use planning goals.
(c) Not within an area identified as a priority area for
protection in the 'Oregon Conservation Strategy' adopted by the
State Fish and Wildlife Commission and published by the State
Department of Fish and Wildlife in September of 2006.
(d) Not within a 'Conservation Opportunity Area' identified in
the 'Oregon Conservation Strategy' adopted by the State Fish and
Wildlife Commission and published by the State Department of Fish
and Wildlife in September of 2006.
(7) Land within an urban reserve:
(a) May be the site of a receiving area only if:
(A) The receiving area is likely to be brought within an urban
growth boundary at the next periodic review under ORS 197.628 to
197.650 or legislative review under ORS 197.626; and
(B) Development pursuant to the transferable development
credits is allowed only after the receiving area is brought
within an urban growth boundary.
(b) That is selected for use as a receiving area may be
designated for priority inclusion in the urban growth boundary,
when the urban growth boundary is amended, if the land qualifies
under the boundary location factors in a goal relating to
urbanization.
(8) The governing body of a governmental unit administering a
transferable development credit system may, directly or
indirectly through a contract with a nonprofit corporation,
establish a transferable development credit bank to facilitate:
(a) Buying severable development interests from lots, parcels
or tracts of resource land in a sending area.
(b) Selling transferable development credits to potential
developers of lots, parcels or tracts in a receiving area.
(c) Entering into agreements or contracts and performing acts
necessary, convenient or desirable to achieve the requirements
set forth in this section and the objectives set forth in ORS
94.534.
(d) Managing funds available for the purchase and sale of
transferable development credits.
(e) Authorizing and monitoring expenditures associated with the
system.
(f) Maintaining records of the transactions, including dates,
purchase amounts and locations of severed development interests
and development pursuant to transferred development credits, that
are sufficient to manage and evaluate the effectiveness of the
system.
(g) Providing periodic summary reports of activities of the
system to the governing body of a governmental unit administering
the system.
(h) Obtaining appraisals of development interests and
transferable development credits as necessary and pricing
transferable development credits for purchase or sale.
(i) Serving as a clearinghouse and information source for
buyers and sellers of transferable development credits.
(j) Accepting donations of transferable development credits.
(k) Soliciting and receiving grant funds for the implementation
of this section and ORS 94.536.
(9) A holder of a conservation easement shall hold, monitor and
enforce the conservation easement to ensure that lands in sending
areas do not retain development credits transferred under this
section and ORS 94.536.
SECTION 913. ORS 183.530 is amended to read:
183.530. A housing cost impact statement shall be prepared upon
the proposal for adoption or repeal of any rule or any amendment
to an existing rule by:
(1) The State Housing Council;
(2) A building codes division of the Department of Consumer and
Business Services or any board associated with the department
with regard to rules adopted under ORS 455.610 to 455.630;
{ - (3) The Land Conservation and Development Commission; - }
{ + (3) Oregon Natural Resources Commission; + }
(4) The Environmental Quality Commission;
(5) The Construction Contractors Board;
(6) The Occupational Safety and Health Division of the
Department of Consumer and Business Services; or
(7) The State Department of Energy.
SECTION 914. ORS 183.635 is amended to read:
183.635. (1) Except as provided in this section, all agencies
must use administrative law judges assigned from the Office of
Administrative Hearings established under ORS 183.605 to conduct
contested case hearings, without regard to whether those hearings
are subject to the procedural requirements for contested case
hearings.
(2) The following agencies need not use administrative law
judges assigned from the office:
(a) Attorney General.
(b) Boards of stewards appointed by the Oregon Racing
Commission.
(c) Bureau of Labor and Industries and the Commissioner of the
Bureau of Labor and Industries.
(d) Department of Corrections.
(e) Department of Education, State Board of Education and
Superintendent of Public Instruction.
(f) Department of Human Services for vocational rehabilitation
services cases under 29 U.S.C. 722(c) and disability
determination cases under 42 U.S.C. 405.
(g) Department of Revenue.
(h) Department of State Police.
(i) Employment Appeals Board.
(j) Employment Relations Board.
(k) Energy Facility Siting Council.
(L) Fair Dismissal Appeals Board.
(m) Governor.
{ - (n) Land Conservation and Development Commission. - }
{ - (o) Land Use Board of Appeals. - }
{ - (p) - } { + (n) + } Local government boundary
commissions created pursuant to ORS 199.430.
{ - (q) - } { + (o) + } Oregon University System and
institutions of higher education listed in ORS 352.002.
{ - (r) - } { + (p) + } Oregon Youth Authority.
{ - (s) - } { + (q) + } Psychiatric Security Review Board.
{ - (t) - } { + (r) + } Public Utility Commission.
{ - (u) - } { + (s) + } State Accident Insurance Fund
Corporation.
{ - (v) - } { + (t) + } State Apprenticeship and Training
Council.
{ - (w) - } { + (u) + } State Board of Parole and
Post-Prison Supervision.
{ - (x) - } { + (v) + } State Land Board.
{ - (y) - } { + (w) + } State Treasurer.
{ - (z) - } { + (x) + } Wage and Hour Commission.
(3) The Workers' Compensation Board is exempt from using
administrative law judges assigned from the office for any
hearing conducted by the board under ORS chapters 147, 654 and
656. Except as specifically provided in this subsection, the
Department of Consumer and Business Services must use
administrative law judges assigned from the office only for
contested cases arising out of the department's powers and duties
under:
(a) ORS 86A.095 to 86A.198, 86A.990 and 86A.992 and ORS chapter
59;
(b) ORS chapter 455;
(c) ORS chapter 674;
(d) ORS chapters 706 to 716;
(e) ORS chapter 717;
(f) ORS chapters 723, 725 and 726; and
(g) ORS chapters 731, 732, 733, 734, 735, 737, 742, 743, 743A,
744, 746, 748 and 750.
{ + (4) The Oregon Department of Natural Resources is exempt
from using administrative law judges assigned from the office for
hearings that are held pursuant to ORS chapters 195, 196 and 197
and related to the adoption of goals and guidelines, land use
decisions, limited land use decisions, expedited land divisions
and appeals to land use decisions and limited land use
decisions. + }
{ - (4) - } { + (5) + } Notwithstanding any other provision
of law, in any proceeding in which an agency is required to use
an administrative law judge assigned from the office, an officer
or employee of the agency may not conduct the hearing on behalf
of the agency.
{ - (5) - } { + (6) + } Notwithstanding any other provision
of ORS 183.605 to 183.690, an agency is not required to use an
administrative law judge assigned from the office if:
(a) Federal law requires that a different administrative law
judge or hearing officer be used; or
(b) Use of an administrative law judge from the office could
result in a loss of federal funds.
{ - (6) - } { + (7) + } Notwithstanding any other provision
of this section, the Department of Environmental Quality must use
administrative law judges assigned from the office only for
contested case hearings conducted under the provisions of ORS
183.413 to 183.470.
SECTION 915. ORS 195.020 is amended to read:
195.020. (1) Special districts shall exercise their planning
duties, powers and responsibilities and take actions that are
authorized by law with respect to programs affecting land use,
including a city or special district boundary change as defined
in ORS 197.175 (1), in accordance with goals approved pursuant to
ORS chapters 195, 196 and 197.
(2) A county assigned coordinative functions under ORS 195.025
(1), or the Metropolitan Service District, which is assigned
coordinative functions for Multnomah, Washington and Clackamas
counties by ORS 195.025 (1), shall enter into a cooperative
agreement with each special district that provides an urban
service within the boundaries of the county or the metropolitan
district. A county or the Metropolitan Service District may enter
into a cooperative agreement with any other special district
operating within the boundaries of the county or the metropolitan
district.
(3) The appropriate city and county and, if within the
boundaries of the Metropolitan Service District, the Metropolitan
Service District, shall enter into a cooperative agreement with
each special district that provides an urban service within an
urban growth boundary. The appropriate city and county, and the
Metropolitan Service District, may enter into a cooperative
agreement with any other special district operating within an
urban growth boundary.
(4) The agreements described in subsection (2) of this section
shall conform to the requirements of paragraphs (a) to (d), (f)
and (g) of this subsection. The agreements described in
subsection (3) of this section shall:
(a) Describe how the city or county will involve the special
district in comprehensive planning, including plan amendments,
periodic review and amendments to land use regulations;
(b) Describe the responsibilities of the special district in
comprehensive planning, including plan amendments, periodic
review and amendments to land use regulations regarding provision
of urban services;
(c) Establish the role and responsibilities of each party to
the agreement with respect to city or county approval of new
development;
(d) Establish the role and responsibilities of the city or
county with respect to district interests including, where
applicable, water sources, capital facilities and real property,
including rights of way and easements;
(e) Specify the units of local government which shall be
parties to an urban service agreement under ORS 195.065;
(f) If a Metropolitan Service District is a party to the
agreement, describe how the Metropolitan Service District will
involve the special district in the exercise of the Metropolitan
Service District's regional planning responsibilities; and
(g) Contain such other provisions as the { - Land
Conservation and Development Commission - } { + Oregon Natural
Resources Commission + } may require by rule.
(5) Agreements required under subsections (2) and (3) of this
section are subject to review by the commission. The commission
may provide by rule for periodic submission and review of
cooperative agreements to insure that they are consistent with
acknowledged comprehensive plans.
SECTION 916. ORS 195.025 is amended to read:
195.025. (1) In addition to the responsibilities stated in ORS
197.175, each county, through its governing body, shall be
responsible for coordinating all planning activities affecting
land uses within the county, including planning activities of the
county, cities, special districts and state agencies, to assure
an integrated comprehensive plan for the entire area of the
county. In addition to being subject to the provisions of ORS
chapters 195, 196 and 197 with respect to city or special
district boundary changes, as defined by ORS 197.175 (1), the
governing body of the Metropolitan Service District shall be
considered the county review, advisory and coordinative body for
Multnomah, Clackamas and Washington Counties for the areas within
that district.
(2) For the purposes of carrying out ORS chapters 195, 196 and
197, counties may voluntarily join together with adjacent
counties as authorized in ORS 190.003 to 190.620.
(3) Whenever counties and cities representing 51 percent of the
population in their area petition the { - Land Conservation and
Development Commission - } { + Oregon Natural Resources
Commission + } for an election in their area to form a regional
planning agency to exercise the authority of the counties under
subsection (1) of this section in the area, the commission shall
review the petition. If { - it - } { + the commission + }
finds that the area described in the petition forms a reasonable
planning unit, { - it - } { + the commission + } shall call
an election in the area on a date specified in ORS 203.085, to
form a regional planning agency. The election shall be conducted
in the manner provided in ORS chapter 255. The county clerk shall
be considered the elections officer and the commission shall be
considered the district elections authority. The agency shall be
considered established if the majority of votes favor the
establishment.
(4) If a voluntary association of local governments adopts a
resolution ratified by each participating county and a majority
of the participating cities therein which authorizes the
association to perform the review, advisory and coordination
functions assigned to the counties under subsection (1) of this
section, the association may perform such duties.
SECTION 917. ORS 195.034 is amended to read:
195.034. (1) If the coordinating body under ORS 195.025 (1) has
adopted, within 10 years before a city initiates an evaluation or
amendment of the city's urban growth boundary, a population
forecast as required by ORS 195.036 that no longer provides a
20-year forecast for an urban area, a city may propose a revised
20-year forecast for its urban area by extending the coordinating
body's current urban area forecast to a 20-year period using the
same growth trend for the urban area assumed in the coordinating
body's current adopted forecast.
(2) If the coordinating body has not adopted a forecast as
required by ORS 195.036 or if the current forecast was adopted
more than 10 years before the city initiates an evaluation or
amendment of the city's urban growth boundary, a city may propose
a 20-year forecast for its urban area by:
(a) Basing the proposed forecast on the population forecast
prepared by the Office of Economic Analysis for the county for a
20-year period that commences when the city initiates the
evaluation or amendment of the city's urban growth boundary; and
(b) Assuming that the urban area's share for the forecasted
county population determined in paragraph (a) of this subsection
will be the same as the urban area's current share of the county
population based on the most recent certified population
estimates from Portland State University and the most recent data
for the urban area published by the United States Census Bureau.
(3)(a) If the coordinating body does not take action on the
city's proposed forecast for the urban area under subsection (1)
or (2) of this section within six months after the city's written
request for adoption of the forecast, the city may adopt the
extended forecast if:
(A) The city provides notice to the other local governments in
the county; and
(B) The city includes the adopted forecast in the comprehensive
plan, or a document included in the plan by reference, in
compliance with the applicable requirements of ORS 197.610 to
197.650.
(b) If the extended forecast is adopted under paragraph (a) of
this subsection consistent with the requirements of subsection
(1) or (2) of this section:
(A) The forecast is deemed to satisfy the requirements of a
statewide land use planning goal relating to urbanization to
establish a coordinated 20-year population forecast for the urban
area; and
(B) The city may rely on the population forecast as an
appropriate basis upon which the city and county may conduct the
evaluation or amendment of the city's urban growth boundary.
(4) The process for establishing a population forecast provided
in this section is in addition to and not in lieu of a process
established by goal and rule of the { - Land Conservation and
Development Commission - } { + Oregon Natural Resources
Commission + }.
SECTION 918. ORS 195.040 is amended to read:
195.040. Upon the expiration of one year after the date of the
approval of the goals and guidelines and annually thereafter,
each county governing body, upon request of the { - Land
Conservation and Development Commission - } { + Oregon Natural
Resources Commission + }, shall report to the commission on the
status of comprehensive plans within each county. Each report
shall include:
(1) Copies of comprehensive plans reviewed by the county
governing body and copies of land use regulations applied to
areas of critical state concern within the county.
(2) For those areas or jurisdictions within the county without
comprehensive plans, a statement and review of the progress made
toward compliance with the goals.
SECTION 919. ORS 195.085 is amended to read:
195.085. (1) No later than the first periodic review that
begins after November 4, 1993, local governments and special
districts shall demonstrate compliance with ORS 195.020 and
195.065.
(2) The { - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + } may adjust the
deadline for compliance under this section when cities and
counties that are parties to an agreement under ORS 195.020 and
195.065 are scheduled for periodic review at different times.
(3) Local governments and special districts that are parties to
an agreement in effect on November 4, 1993, which provides for
the future provision of an urban service shall demonstrate
compliance with ORS 195.065 no later than the date such agreement
expires or the second periodic review that begins after November
4, 1993, whichever comes first.
SECTION 920. ORS 195.120 is amended to read:
195.120. (1) The Legislative Assembly finds that Oregon's parks
are special places and the protection of parks for the use and
enjoyment of present and future generations is a matter of
statewide concern.
(2) The { - Land Conservation and Development Commission, in
cooperation with the State Parks and Recreation Commission and
representatives of local government, - } { + Oregon Natural
Resources Commission + } shall adopt rules and land use planning
goal amendments as necessary to provide for:
(a) Allowable uses in state and local parks that have adopted
master plans;
(b) Local government planning necessary to implement state park
master plans; and
(c) Coordination and dispute resolution among state and local
agencies regarding planning and activities in state parks.
(3) Rules and goal amendments adopted under subsection (2) of
this section shall provide for the following uses in state parks:
(a) Campgrounds, day use areas and supporting infrastructure,
amenities and accessory visitor service facilities designed to
meet the needs of park visitors;
(b) Recreational trails and boating facilities;
(c) Facilities supporting resource-interpretive and educational
activities for park visitors;
(d) Park maintenance workshops, staff support facilities and
administrative offices;
(e) Uses that directly support resource-based outdoor
recreation; and
(f) Other park uses adopted by the { - Land Conservation and
Development - } commission.
(4) A local government shall not be required to adopt an
exception under ORS 197.732 from a land use planning goal
protecting agriculture or forestry resources to authorize a use
identified by rule of the { - Land Conservation and
Development - } commission under this section in a state or local
park.
(5) A local government shall comply with the provisions of ORS
215.296 for all uses and activities proposed in or adjacent to an
exclusive farm use zone described in the state or local master
plan as adopted by the local government and made a part of its
comprehensive plan and land use regulation.
SECTION 921. ORS 195.141 is amended to read:
195.141. (1) A county and a metropolitan service district
established under ORS chapter 268 may enter into an
intergovernmental agreement pursuant to ORS 190.003 to 190.130,
195.025 or 197.652 to 197.658 to designate rural reserves
pursuant to this section and urban reserves pursuant to ORS
195.145 (1)(b).
(2) Land designated as a rural reserve:
(a) Must be outside an urban growth boundary.
(b) May not be designated as an urban reserve during the urban
reserve planning period described in ORS 195.145 (4).
(c) May not be included within an urban growth boundary during
the period of time described in paragraph (b) of this subsection.
(3) When designating a rural reserve under this section to
provide long-term protection to the agricultural industry, a
county and a metropolitan service district shall base the
designation on consideration of factors including, but not
limited to, whether land proposed for designation as a rural
reserve:
(a) Is situated in an area that is otherwise potentially
subject to urbanization during the period described in subsection
(2)(b) of this section, as indicated by proximity to the urban
growth boundary and to properties with fair market values that
significantly exceed agricultural values;
(b) Is capable of sustaining long-term agricultural operations;
(c) Has suitable soils and available water where needed to
sustain long-term agricultural operations; and
(d) Is suitable to sustain long-term agricultural operations,
taking into account:
(A) The existence of a large block of agricultural or other
resource land with a concentration or cluster of farms;
(B) The adjacent land use pattern, including its location in
relation to adjacent nonfarm uses and the existence of buffers
between agricultural operations and nonfarm uses;
(C) The agricultural land use pattern, including parcelization,
tenure and ownership patterns; and
(D) The sufficiency of agricultural infrastructure in the area.
(4) The { - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + } shall, after
consultation with the State Department of Agriculture, adopt by
goal or by rule a process and criteria for designating rural
reserves pursuant to this section.
SECTION 922. ORS 195.145 is amended to read:
195.145. (1) To ensure that the supply of land available for
urbanization is maintained:
(a) Local governments may cooperatively designate lands outside
urban growth boundaries as urban reserves subject to ORS 197.610
to 197.625.
(b) Alternatively, a metropolitan service district established
under ORS chapter 268 and a county may enter into a written
agreement pursuant to ORS 190.003 to 190.130, 195.025 or 197.652
to 197.658 to designate urban reserves. A process and criteria
developed pursuant to this paragraph are an alternative to a
process or criteria adopted pursuant to paragraph (a) of this
subsection.
(2)(a) The { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + } may
require a local government to designate an urban reserve pursuant
to subsection (1)(a) of this section during { - its - }
{ + the local government's + } periodic review in accordance
with the conditions for periodic review under ORS 197.628.
(b) Notwithstanding paragraph (a) of this subsection, the
commission may require a local government to designate an urban
reserve pursuant to subsection (1)(a) of this section outside of
{ - its - } { + the local government's + } periodic review
if:
(A) The local government is located inside a Primary
Metropolitan Statistical Area or a Metropolitan Statistical Area
as designated by the Federal Census Bureau upon November 4, 1993;
and
(B) The local government has been required to designate an
urban reserve by rule prior to November 4, 1993.
(3) In carrying out subsections (1) and (2) of this section:
(a) Within an urban reserve, neither the commission nor any
local government shall prohibit the siting on a legal parcel of a
single family dwelling that would otherwise have been allowed
under law existing prior to designation as an urban reserve.
(b) The commission shall provide to local governments a list of
options, rather than prescribing a single planning technique, to
ensure the efficient transition from rural to urban use in urban
reserves.
(4) Urban reserves designated by a metropolitan service
district and a county pursuant to subsection (1)(b) of this
section must be planned to accommodate population and employment
growth for at least 20 years, and not more than 30 years, after
the 20-year period for which the district has demonstrated a
buildable land supply in the most recent inventory, determination
and analysis performed under ORS 197.296.
(5) A district and a county shall base the designation of urban
reserves under subsection (1)(b) of this section upon
consideration of factors including, but not limited to, whether
land proposed for designation as urban reserves, alone or in
conjunction with land inside the urban growth boundary:
(a) Can be developed at urban densities in a way that makes
efficient use of existing and future public infrastructure
investments;
(b) Includes sufficient development capacity to support a
healthy urban economy;
(c) Can be served by public schools and other urban-level
public facilities and services efficiently and cost-effectively
by appropriate and financially capable service providers;
(d) Can be designed to be walkable and served by a
well-connected system of streets by appropriate service
providers;
(e) Can be designed to preserve and enhance natural ecological
systems; and
(f) Includes sufficient land suitable for a range of housing
types.
(6) The commission shall adopt by goal or by rule a process and
criteria for designating urban reserves pursuant to subsection
(1)(b) of this section.
SECTION 923. ORS 195.225 is amended to read:
195.225. (1) In areas subject to the jurisdiction of a local
government boundary commission, the boundary commission shall
conduct an advisory review of an annexation plan for conformity
with annexation plan requirements set forth in ORS 195.220,
199.462 and the rules of procedure of the { - Land Conservation
and Development Commission - } { + Oregon Natural Resources
Commission + }.
(2) If a boundary commission finds that an annexation plan does
not comply with ORS 195.220, 199.462 or the procedural rules of
the { + Oregon Natural Resources + } Commission, the boundary
commission, by order, shall disapprove the annexation plan and
return the plan to the governing body of the city or district.
The order of the boundary commission that disapproves an
annexation plan shall describe with particularity the provisions
of the annexation plan that do not comply with ORS 195.220,
199.462 or the procedural rules of the { + Oregon Natural
Resources + } Commission and shall specifically indicate the
reasons for noncompliance.
(3) The governing body of the city or district, upon receiving
an order of the boundary commission that disapproves an
annexation plan, may amend the plan and resubmit the amended plan
to the boundary commission.
(4) After a boundary commission reviews an annexation plan, the
annexation plan shall be submitted to the electors of the city or
district and affected territory as provided in ORS 195.205.
(5) Notwithstanding ORS chapter 199, annexations provided for
in an annexation plan approved by the electors of a city or
district and affected territory do not require the approval of a
local government boundary commission.
(6) A city or district shall submit an annexation plan approved
by the electors and a copy of the resolution, ordinance, order or
proclamation proclaiming an annexation under an approved
annexation plan to the local government boundary commission
filing with the Secretary of State, Department of Revenue,
assessor and county clerk of each county in which the affected
territory is located.
SECTION 924. ORS 195.260 is amended to read:
195.260. (1) In order to reduce the risk of serious bodily
injury or death resulting from rapidly moving landslides, a local
government:
(a) Shall exercise all available authority to protect the
public during emergencies, consistent with ORS 401.032.
(b) May require a geotechnical report and, if a report is
required, shall provide for a coordinated review of the
geotechnical report by the { - State Department of Geology and
Mineral Industries or the State Forestry Department, as
appropriate, - } { + Oregon Department of Natural Resources + }
before issuing a building permit for a site in a further review
area.
(c) Except those structures exempt from building codes under
ORS 455.310 and 455.315, shall amend its land use regulations, or
adopt new land use regulations, to regulate the siting of
dwellings and other structures designed for human occupancy,
including those being restored under ORS 215.130 (6), in further
review areas where there is evidence of substantial risk for
rapidly moving landslides. All final decisions under this
paragraph and paragraph (b) of this subsection are the
responsibility of the local government with jurisdiction over the
site. A local government may not delegate such final decisions to
any state agency.
(d) May deny a request to issue a building permit if a
geotechnical report discloses that the entire parcel is subject
to a rapidly moving landslide or that the subject lot or parcel
does not contain sufficient buildable area that is not subject to
a rapidly moving landslide.
(e) Shall maintain a record, available to the public, of
properties for which a geotechnical report has been prepared
within the jurisdiction of the local government.
(2) A landowner allowed a building permit under subsection
(1)(c) of this section shall sign a statement that shall:
(a) Be recorded with the county clerk of the county in which
the property is located, in which the landowner acknowledges that
the landowner may not in the future bring any action against an
adjacent landowner about the effects of rapidly moving landslides
on or adjacent to the landowner's property; and
(b) Record in the deed records for the county where the lot or
parcel is located a nonrevocable deed restriction that the
landowner signs and acknowledges, that contains a legal
description complying with ORS 93.600 and that prohibits any
present or future owner of the property from bringing any action
against an adjacent landowner about the effects of rapidly moving
landslides on or adjacent to the property.
(3) Restrictions on forest practices adopted under ORS 527.710
(10) do not apply to risk situations arising solely from the
construction of a building designed for human occupancy in a
further review area on or after October 23, 1999.
(4) The following state agencies shall implement the following
specific responsibilities to reduce the risk of serious bodily
injury or death resulting from rapidly moving landslides:
(a) The { - State Department of Geology and Mineral
Industries - } { + Oregon Department of Natural Resources + }
shall:
(A) Identify and map further review areas selected in
cooperation with local governments and { - in coordination with
the State Forestry Department, and - } provide technical
assistance to local governments to facilitate the use and
application of this information pursuant to subsection (1)(b) of
this section; { - and - }
(B) Provide public education regarding landslide hazards
{ - . - } { + ; + }
{ - (b) - } { + (C) + } { - The State Forestry Department
shall - } Regulate forest operations to reduce the risk of
serious bodily injury or death from rapidly moving landslides
directly related to forest operations, and assist local
governments in the siting review of permanent dwellings on and
adjacent to forestlands in further review areas pursuant to
subsection (1)(b) of this section { - . - } { + ; and + }
{ - (c) - } { + (D) + } { - The Land Conservation and
Development Commission may - } Take steps under its existing
authority to assist local governments to appropriately apply the
requirements of subsection (1)(c) of this section.
{ - (d) - } { + (b) + } The Department of Transportation
shall provide warnings to motorists during periods determined to
be of highest risk of rapidly moving landslides along areas on
state highways with a history of being most vulnerable to rapidly
moving landslides.
{ - (e) - } { + (c) + } The Office of Emergency Management
shall coordinate state resources for rapid and effective response
to landslide-related emergencies.
(5) Notwithstanding any other provision of law, any state or
local agency adopting rules related to the risk of serious bodily
injury or death from rapidly moving landslides shall do so only
in conformance with the policies and provisions of ORS 195.250 to
195.260.
(6) No state or local agency may adopt or enact any rule or
ordinance for the purpose of reducing risk of serious bodily
injury or death from rapidly moving landslides that limits the
use of land that is in addition to land identified as a further
review area by the { - State Department of Geology and Mineral
Industries or the State Forestry Department - } { + Oregon
Department of Natural Resources + } pursuant to subsection (4) of
this section.
(7) Except as provided in ORS 527.710 or in Oregon's ocean and
coastal land use planning goals, no state agency may adopt
criteria regulating activities for the purpose of reducing risk
of serious bodily injury or death from rapidly moving landslides
on lands subject to the provisions of ORS 195.250 to 195.260 that
are more restrictive than the criteria adopted by a local
government pursuant to subsection (1)(c) of this section.
SECTION 925. ORS 195.300 is amended to read:
195.300. As used in this section and ORS 195.301 and 195.305 to
195.336 and sections 5 to 11, chapter 424, Oregon Laws 2007, and
sections 2 to 9 and 17, chapter 855, Oregon Laws 2009:
(1) 'Acquisition date' means the date described in ORS 195.328.
(2) 'Claim' means a written demand for compensation filed
under:
(a) ORS 195.305, as in effect immediately before December 6,
2007; or
(b) ORS 195.305 and 195.310 to 195.314, as in effect on and
after December 6, 2007.
(3) 'Enacted' means enacted, adopted or amended.
(4) 'Fair market value' means the value of property as
determined under ORS 195.332.
(5) 'Farming practice' has the meaning given that term in ORS
30.930.
(6) 'Federal law' means:
(a) A statute, regulation, order, decree or policy enacted by a
federal entity or by a state entity acting under authority
delegated by the federal government;
(b) A requirement contained in a plan or rule enacted by a
compact entity; or
(c) A requirement contained in a permit issued by a federal or
state agency pursuant to a federal statute or regulation.
(7) 'File' means to submit a document to a public entity.
(8) 'Forest practice' has the meaning given that term in ORS
527.620.
(9) 'Ground water restricted area' means an area designated as
a critical ground water area or as a ground water limited area by
the Water Resources Department or Water Resources Commission
before December 6, 2007.
(10) 'High-value farmland' means:
(a) High-value farmland as described in ORS 215.710 that is
land in an exclusive farm use zone or a mixed farm and forest
zone, except that the dates specified in ORS 215.710 (2), (4) and
(6) are December 6, 2007.
(b) Land west of U.S. Highway 101 that is composed
predominantly of the following soils in Class III or IV or
composed predominantly of a combination of the soils described in
ORS 215.710 (1) and the following soils:
(A) Subclassification IIIw, specifically Ettersburg Silt Loam
and Croftland Silty Clay Loam;
(B) Subclassification IIIe, specifically Klooqueth Silty Clay
Loam and Winchuck Silt Loam; and
(C) Subclassification IVw, specifically Huffling Silty Clay
Loam.
(c) Land that is in an exclusive farm use zone or a mixed farm
and forest zone and that on June 28, 2007, is:
(A) Within the place of use for a permit, certificate or decree
for the use of water for irrigation issued by the { - Water
Resources Department - } { + Oregon Department of Natural
Resources + };
(B) Within the boundaries of a district, as defined in ORS
540.505; or
(C) Within the boundaries of a diking district formed under ORS
chapter 551.
(d) Land that contains not less than five acres planted in wine
grapes.
(e) Land that is in an exclusive farm use zone and that is at
an elevation between 200 and 1,000 feet above mean sea level,
with an aspect between 67.5 and 292.5 degrees and a slope between
zero and 15 percent, and that is located within:
(A) The Southern Oregon viticultural area as described in 27
C.F.R. 9.179;
(B) The Umpqua Valley viticultural area as described in 27
C.F.R. 9.89; or
(C) The Willamette Valley viticultural area as described in 27
C.F.R. 9.90.
(f) Land that is in an exclusive farm use zone and that is no
more than 3,000 feet above mean sea level, with an aspect between
67.5 and 292.5 degrees and a slope between zero and 15 percent,
and that is located within:
(A) The portion of the Columbia Gorge viticultural area as
described in 27 C.F.R. 9.178 that is within the State of Oregon;
(B) The Rogue Valley viticultural area as described in 27
C.F.R. 9.132;
(C) The portion of the Columbia Valley viticultural area as
described in 27 C.F.R. 9.74 that is within the State of Oregon;
(D) The portion of the Walla Walla Valley viticultural area as
described in 27 C.F.R. 9.91 that is within the State of Oregon;
or
(E) The portion of the Snake River Valley viticultural area as
described in 27 C.F.R. 9.208 that is within the State of Oregon.
(11) 'High-value forestland' means land:
(a) That is in a forest zone or a mixed farm and forest zone,
that is located in western Oregon and composed predominantly of
soils capable of producing more than 120 cubic feet per acre per
year of wood fiber and that is capable of producing more than
5,000 cubic feet per year of commercial tree species; or
(b) That is in a forest zone or a mixed farm and forest zone,
that is located in eastern Oregon and composed predominantly of
soils capable of producing more than 85 cubic feet per acre per
year of wood fiber and that is capable of producing more than
4,000 cubic feet per year of commercial tree species.
(12) 'Home site approval' means approval of the subdivision or
partition of property or approval of the establishment of a
dwelling on property.
(13) 'Just compensation' means:
(a) Relief under sections 5 to 11, chapter 424, Oregon Laws
2007, and sections 2 to 9 and 17, chapter 855, Oregon Laws 2009,
for land use regulations enacted on or before January 1, 2007;
and
(b) Relief under ORS 195.310 to 195.314 for land use
regulations enacted after January 1, 2007.
(14) 'Land use regulation' means:
(a) A statute that establishes a minimum lot or parcel size;
(b) A provision in ORS 227.030 to 227.300, 227.350, 227.400,
227.450 or 227.500 or in ORS chapter 215 that restricts the
residential use of private real property;
(c) A provision of a city comprehensive plan, zoning ordinance
or land division ordinance that restricts the residential use of
private real property zoned for residential use;
(d) A provision of a county comprehensive plan, zoning
ordinance or land division ordinance that restricts the
residential use of private real property;
(e) A provision, enacted or adopted on or after January 1,
2010, of:
(A) The Oregon Forest Practices Act;
(B) An administrative rule of the { - State Board of
Forestry - } { + Oregon Natural Resources Commission pursuant
to ORS chapter 477, 526, 527 or 530 + }; or
(C) Any other law enacted, or rule adopted, solely for the
purpose of regulating a forest practice;
(f) ORS 561.191, a provision of ORS 568.900 to 568.933 or an
administrative rule of the State Department of Agriculture that
implements ORS 561.191 or 568.900 to 568.933;
(g) An administrative rule or goal of the { - Land
Conservation and Development Commission - } { + Oregon Natural
Resources Commission adopted pursuant to ORS chapter 195, 196 or
197 + }; or
(h) A provision of a Metro functional plan that restricts the
residential use of private real property.
(15) 'Lawfully established unit of land' has the meaning given
that term in ORS 92.010.
(16) 'Lot' has the meaning given that term in ORS 92.010.
(17) 'Measure 37 permit' means a final decision by Metro, a
city or a county to authorize the development, subdivision or
partition or other use of property pursuant to a waiver.
(18) 'Owner' means:
(a) The owner of fee title to the property as shown in the deed
records of the county where the property is located;
(b) The purchaser under a land sale contract, if there is a
recorded land sale contract in force for the property; or
(c) If the property is owned by the trustee of a revocable
trust, the settlor of a revocable trust, except that when the
trust becomes irrevocable only the trustee is the owner.
(19) 'Parcel' has the meaning given that term in ORS 92.010.
(20) 'Property' means the private real property described in a
claim and contiguous private real property that is owned by the
same owner, whether or not the contiguous property is described
in another claim, and that is not property owned by the federal
government, an Indian tribe or a public body, as defined in ORS
192.410.
(21) 'Protection of public health and safety' means a law,
rule, ordinance, order, policy, permit or other governmental
authorization that restricts a use of property in order to reduce
the risk or consequence of fire, earthquake, landslide, flood,
storm, pollution, disease, crime or other natural or human
disaster or threat to persons or property including, but not
limited to, building and fire codes, health and sanitation
regulations, solid or hazardous waste regulations and pollution
control regulations.
(22) 'Public entity' means the state, Metro, a county or a
city.
(23) 'Urban growth boundary' has the meaning given that term in
ORS 195.060.
(24) 'Waive' or 'waiver' means an action or decision of a
public entity to modify, remove or not apply one or more land use
regulations under ORS 195.305 to 195.336 and sections 5 to 11,
chapter 424, Oregon Laws 2007, and sections 2 to 9 and 17,
chapter 855, Oregon Laws 2009, or ORS 195.305, as in effect
immediately before December 6, 2007, to allow the owner to use
property for a use permitted when the owner acquired the
property.
(25) 'Zoned for residential use' means zoning that has as its
primary purpose single-family residential use.
SECTION 926. ORS 195.312 is amended to read:
195.312. (1) A person filing a claim under ORS 195.310 shall
file the claim in the manner provided by this section. If the
property for which the claim is filed has more than one owner,
the claim must be signed by all the owners or the claim must
include a signed statement of consent from each owner. Except as
provided in subsection (2) of this section, only one claim for
each property may be filed for each land use regulation.
(2) For a claim based on a land use regulation described in ORS
195.300 (14)(e), an owner:
(a) May file a claim only for property that is a lawfully
established unit of land;
(b) May file separate claims for different lawfully established
units of land at the same or different times based on the same
land use regulation; and
(c) May not file multiple claims for the same lawfully
established unit of land based on the same land use regulation.
(3) A claim filed under ORS 195.310 must be filed with the
public entity that enacted the land use regulation that is the
basis for the claim.
(4) Metro, cities, counties and the { - Department of Land
Conservation and Development - } { + Oregon Department of
Natural Resources + } may impose a fee for the review of a claim
filed under ORS 195.310 in an amount not to exceed the actual and
reasonable cost of reviewing the claim.
(5) A person must file a claim under ORS 195.310 within five
years after the date the land use regulation was enacted.
(6) A public entity that receives a claim filed under ORS
195.310 must issue a final determination on the claim within 180
days after the date the claim is complete, as described in
subsection (10) of this section.
(7) If a claim under ORS 195.310 is filed with state
government, as defined in ORS 174.111, the claim must be filed
with the department. If the claim is filed with Metro, a city or
a county, the claim must be filed with the chief administrative
office of the public entity, or with an individual designated by
ordinance, resolution or order of the public entity.
(8) A claim filed under ORS 195.310 must be in writing and must
include:
(a) The name and address of each owner;
(b) The address, if any, and tax lot number, township, range
and section of the property;
(c) Evidence of the acquisition date of the claimant, including
the instrument conveying the property to the claimant and a
report from a title company identifying the person in which title
is vested and the claimant's acquisition date and describing
exceptions and encumbrances to title that are of record;
(d) A citation to the land use regulation that the claimant
believes is restricting the claimant's desired use of the
property that is adequate to allow the public entity to identify
the specific land use regulation that is the basis for the claim;
(e) A description of the specific use of the property that the
claimant desires to carry out but cannot because of the land use
regulation; and
(f) An appraisal of the property that complies with ORS 195.310
(2) or, for a claim based on a land use regulation described in
ORS 195.300 (14)(e), an appraisal that complies with ORS 195.310
(4)(b).
(9) A claim filed under ORS 195.310 must include the fee, if
any, imposed by the public entity with which the claim is filed
pursuant to subsection (4) of this section.
(10) The public entity shall review a claim filed under ORS
195.310 to determine whether the claim complies with the
requirements of ORS 195.310 to 195.314. If the claim is
incomplete, the public entity shall notify the claimant in
writing of the information or fee that is missing within 60 days
after receiving the claim and allow the claimant to submit the
missing information or fee. The claim is complete when the public
entity receives any fee required by subsection (9) of this
section and:
(a) The missing information;
(b) Part of the missing information and written notice from the
claimant that the remainder of the missing information will not
be provided; or
(c) Written notice from the claimant that none of the missing
information will be provided.
(11) If a public entity does not notify a claimant within 60
days after a claim is filed under ORS 195.310 that information or
the fee is missing from the claim, the claim is deemed complete
when filed.
(12) A claim filed under ORS 195.310 is deemed withdrawn if the
public entity gives notice to the claimant under subsection (10)
of this section and the claimant does not comply with the
requirements of subsection (10) of this section.
SECTION 927. ORS 195.314 is amended to read:
195.314. (1) A public entity that receives a complete claim as
described in ORS 195.312 shall provide notice of the claim at
least 30 days before a public hearing on the claim or, if there
will not be a public hearing, at least 30 days before the
deadline for submission of written comments, to:
(a) All owners identified in the claim;
(b) All persons described in ORS 197.763 (2);
(c) The { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + },
unless the claim was filed with the department;
(d) Metro, if the property is located within the urban growth
boundary of Metro;
(e) The county in which the property is located, unless the
claim was filed with the county; and
(f) The city, if the property is located within the urban
growth boundary or adopted urban planning area of the city.
(2) The notice required under subsection (1) of this section
must describe the claim and state:
(a) Whether a public hearing will be held on the claim, the
date, time and location of the hearing, if any, and the final
date for submission of written evidence and arguments relating to
the claim;
(b) That judicial review of the final determination of a public
entity on the claim is limited to the written evidence and
arguments submitted to the public entity; and
(c) That judicial review is available only for issues that are
raised with sufficient specificity to afford the public entity an
opportunity to respond.
(3) Except as provided in subsection (4) of this section,
written evidence and arguments in proceedings on the claim must
be submitted to the public entity not later than:
(a) The close of the final public hearing on the claim; or
(b) If a public hearing is not held, the date that is specified
by the public entity in the notice required under subsection (1)
of this section.
(4) The claimant may request additional time to submit written
evidence and arguments in response to testimony or submittals.
The request must be made before the close of testimony or the
deadline for submission of written evidence and arguments.
(5) A public entity shall make the record on review of a claim,
including any staff reports, available to the public before the
close of the record as described in subsections (3) and (4) of
this section.
(6) A public entity shall mail a copy of the final
determination to the claimant and to any person who submitted
written evidence or arguments before the close of the record. The
public entity shall forward to the county, and the county shall
record, a memorandum of the final determination in the deed
records of the county in which the property is located.
SECTION 928. ORS 195.316 is amended to read:
195.316. In addition to any other notice required by law, a
county must give notice of a Measure 37 permit for property
located entirely outside an urban growth boundary to:
(1) The county assessor for the county in which the property is
located;
(2) A district or municipality that supplies water for
domestic, municipal or irrigation uses and has a place of use or
well located within one-half mile of the property; and
{ - (3) The Department of Land Conservation and Development,
the State Department of Agriculture, the Water Resources
Department and the State Forestry Department. - }
{ + (3) The State Department of Agriculture and the Oregon
Department of Natural Resources. + }
SECTION 929. ORS 195.326 is amended to read:
195.326. An appraiser certified under ORS 674.310 or a person
registered under ORS chapter 308 may carry out the appraisals
required by ORS 195.305 to 195.336 and sections 5 to 11, chapter
424, Oregon Laws 2007, and sections 2 to 9 and 17, chapter 855,
Oregon Laws 2009. The { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + }
is authorized to retain persons to review the appraisals.
SECTION 930. ORS 195.336 is amended to read:
195.336. (1) The Compensation and Conservation Fund is
established in the State Treasury, separate and distinct from the
General Fund. Interest earned on moneys in the Compensation and
Conservation Fund shall be credited to the fund. The fund
consists of moneys received by the { - Department of Land
Conservation and Development - } { + Oregon Department of
Natural Resources + } under ORS 195.305 to 195.336 and sections 5
to 11, chapter 424, Oregon Laws 2007, and sections 2 to 9, 17 and
18, chapter 855, Oregon Laws 2009, and other moneys available to
the department for the purpose described in subsection (2) of
this section.
(2) Moneys in the fund are continuously appropriated to the
department for the purpose of paying expenses incurred to review
claims under ORS 195.305 to 195.336 and sections 5 to 11, chapter
424, Oregon Laws 2007, and sections 2 to 9 and 17, chapter 855,
Oregon Laws 2009, and for the purpose of paying the expenses of
the Compensation and Conservation Ombudsman appointed under ORS
195.320.
SECTION 931. ORS 196.107 is amended to read:
196.107. (1) The Legislative Assembly { - , considering the
recommendations of the Land Conservation and Development
Commission, - } finds that the management plan adopted pursuant
to the Columbia River Gorge National Scenic Area Act achieves on
balance the purposes of the statewide planning goals adopted
pursuant to ORS 197.230.
(2) Land use decisions subject to review under ORS 197.835 for
compliance with the goals for those portions of Multnomah, Hood
River and Wasco Counties within the Columbia River Gorge National
Scenic Area, except land within urban area boundaries, are exempt
from the requirements of ORS 197.610 to 197.625. This exemption
becomes effective in a county when that county or the Columbia
River Gorge Commission adopts and implements ordinances that are
approved pursuant to sections 7(b) and 8(h) to 8(k) of the
Columbia River Gorge National Scenic Area Act, P.L. 99-663.
(3) The Director of the { - Department of Land Conservation
and Development may petition the Land Conservation and
Development Commission to decertify the management plan at any
time. If the Land Conservation and Development Commission
receives a petition from the director, the Land Conservation and
Development Commission - } { + Oregon Department of Natural
Resources may petition the Oregon Natural Resources Commission to
decertify the management plan at any time. If the Oregon Natural
Resources Commission receives a petition from the director, the
commission + } shall decertify the management plan within 120
days { - , if it - } { + if the commission + } determines that
any part of the management plan does not achieve on balance the
purposes of the statewide planning goals adopted pursuant to ORS
197.230.
SECTION 932. ORS 196.115 is amended to read:
196.115. (1) For purposes of judicial review, decisions of the
Columbia River Gorge Commission shall be subject to review solely
as provided in this section, except as otherwise provided by the
Columbia River Gorge National Scenic Area Act, P.L. 99-663.
(2)(a) A final action or order by the commission in a review or
appeal of any action of the commission pursuant to section 10(c)
or 15(b)(4) of the Columbia River Gorge National Scenic Area Act,
or a final action or order by the commission in a review or
appeal of any action of a county pursuant to section 15(a)(2) or
15(b)(4) of the Columbia River Gorge National Scenic Area Act,
shall be reviewed by the Court of Appeals on a petition for
judicial review filed and served as provided in subsections (3)
and (4) of this section and ORS 183.482.
(b) On a petition for judicial review under paragraph (a) of
this subsection the Court of Appeals also shall review the action
of the county that is the subject of the commission's order, if
requested in the petition.
(c) The Court of Appeals shall issue a final order on review
under this subsection within the time limits provided by ORS
197.855.
(d) In lieu of judicial review under paragraphs (a) and (b) of
this subsection, a county action may be appealed to the
{ - Land Use Board of Appeals - } { + Oregon Department of
Natural Resources + } under ORS 197.805 to 197.855. A notice of
intent to appeal the county's action shall be filed not later
than 21 days after the commission's order on the county action
becomes final.
(e) Notwithstanding ORS 197.835, the scope of review in an
appeal pursuant to paragraph (d) of this subsection shall not
include any issue relating to interpretation or implementation of
the Columbia River Gorge National Scenic Area Act, P.L. 99-663,
and any issue related to such interpretation or implementation
shall be waived by the filing of an appeal under paragraph (d) of
this subsection.
(f) After county land use ordinances are approved pursuant to
sections 7(b) and 8(h) to (k) of the Columbia River Gorge
National Scenic Area Act, P.L. 99-663, the { - Land Use Board
of Appeals - } { + Oregon Department of Natural Resources + }
shall not review land use decisions within the general management
area or special management area for compliance with the statewide
planning goals. The limitation of this paragraph shall not apply
if the { - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + } decertifies the
management plan pursuant to ORS 196.107.
(3)(a) If a petition for judicial review of { - a commission
order - } { + an order of the Columbia River Gorge
Commission + } is filed pursuant to subsection (2)(a) of this
section, the procedures to be followed by the parties, the
commission and the court, and the court's review, shall be in
accordance with ORS 183.480, 183.482 (1) to (7), 183.485,
183.486, 183.490 and 183.497, except as this section or the
Columbia River Gorge National Scenic Area Act, P.L. 99-663,
otherwise provides.
(b) Notwithstanding any provision of ORS 183.482:
(A) The commission shall transmit the original record or the
certified copy of the entire record within 21 days after service
of a petition for judicial review is served on the commission;
and
(B) The parties shall file briefs with the court within the
times allowed by rules of the court.
(c) The court may affirm, reverse or remand the order. If the
court finds that the agency has erroneously interpreted a
provision of law and that a correct interpretation compels a
particular action, the court shall:
(A) Set aside or modify the order; or
(B) Remand the case to the agency for further action under a
correct interpretation of the provision of law.
(d) The court shall remand the order to the agency if the court
finds the agency's exercise of discretion to be:
(A) Outside the range of discretion delegated to the agency by
law;
(B) Inconsistent with an agency rule, an officially stated
agency position or a prior agency practice, unless the
inconsistency is explained by the agency; or
(C) Otherwise in violation of a constitutional or statutory
provision.
(e) The court shall set aside or remand the order if the court
finds that the order is not supported by substantial evidence in
the whole record.
(f) Notwithstanding any other provision of this section, in any
case where review of a county action as well as a commission
order is sought pursuant to subsection (2)(a) and (b) of this
section, the court shall accept any findings of fact by the
commission which the court finds to be supported by substantial
evidence in the whole record, and such findings by the commission
shall prevail over any findings by the county concerning the same
or substantially the same facts.
(4)(a) Except as otherwise provided by this section or the
Columbia River Gorge National Scenic Area Act, P.L. 99-663, if
review of a county action is sought pursuant to subsection (2)(b)
of this section, the procedures to be followed by the parties,
the county and the court, and the court's review, shall be in
accordance with those provisions governing review of county land
use decisions by the { - Land Use Board of Appeals - }
{ + Oregon Department of Natural Resources + } set forth in ORS
197.830 (2) to (8), (10), (15) and (16) and 197.835 (2) to (10),
(12) and (13). As used in this section, { - ' board' as used
in the enumerated provisions shall mean 'court' and the term - }
'notice of intent to appeal ' in ORS 197.830 (10) shall refer to
the petition described in subsection (2) of this section.
(b) In addition to the other requirements of service under this
section, the petitioner shall serve the petition upon the persons
and bodies described in ORS 197.830 (9), as a prerequisite to
judicial review of the county action.
(c) In accordance with subsection (3)(b)(B) of this section, a
party to a review of both a commission order and a county action
shall file only one brief with the court, which shall address
both the commission order and the county action.
(d) Review of a decision under ORS 197.830 to 197.845 shall be
confined to the record. Subject to subsection (3)(f) of this
section, the court shall be bound by any finding of fact of the
county for which there is substantial evidence in the whole
record. The court may appoint a master and follow the procedures
of ORS 183.482 (7) in connection with matters that the
{ - board - } { + department + } may take evidence for under
ORS 197.835 (2).
(5) Approval of county land use ordinances by the commission
pursuant to section 7 of the Columbia River Gorge National Scenic
Area Act, P.L. 99-663, may be reviewed by the Court of Appeals as
provided in ORS 183.482.
(6) Notwithstanding ORS 183.484, any proceeding filed in
circuit court by or against the commission shall be filed with
the circuit court for the county in which the commission has a
principal business office or in which the land involved in the
proceeding is located.
SECTION 933. ORS 196.575 is amended to read:
196.575. (1) The { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + }
is authorized to participate on behalf of the State of Oregon
with the States of Washington, California, Alaska and Hawaii in a
joint liaison program with the Center for Ocean Analysis and
Prediction of the National Oceanic and Atmospheric
Administration.
(2) The objective of the program is to assist the states in
taking maximum advantage of the oceanographic data, products and
services available from the federal government through the Center
for Ocean Analysis and Prediction.
(3) The department { - of Land Conservation and
Development - } shall integrate data obtained through the liaison
program for use by other state agencies and maximize the use of
the State Service Center for Geographic Information Systems.
SECTION 934. ORS 197.015 is amended to read:
197.015. As used in ORS chapters 195, 196 and 197, unless the
context requires otherwise:
(1) 'Acknowledgment' means { - a commission order - }
{ + an order of the Oregon Natural Resources Commission + } that
certifies that a comprehensive plan and land use regulations,
land use regulation or plan or regulation amendment complies with
the goals or certifies that Metro land use planning goals and
objectives, Metro regional framework plan, amendments to Metro
planning goals and objectives or amendments to the Metro regional
framework plan comply with the goals.
{ - (2) 'Board' means the Land Use Board of Appeals. - }
{ - (3) - } { + (2) + } 'Carport' means a stationary
structure consisting of a roof with its supports and not more
than one wall, or storage cabinet substituting for a wall, and
used for sheltering a motor vehicle.
{ - (4) 'Commission' means the Land Conservation and
Development Commission. - }
{ - (5) - } { + (3) + } 'Comprehensive plan' means a
generalized, coordinated land use map and policy statement of the
governing body of a local government that interrelates all
functional and natural systems and activities relating to the use
of lands, including but not limited to sewer and water systems,
transportation systems, educational facilities, recreational
facilities, and natural resources and air and water quality
management programs. 'Comprehensive' means all-inclusive, both in
terms of the geographic area covered and functional and natural
activities and systems occurring in the area covered by the plan.
' General nature' means a summary of policies and proposals in
broad categories and does not necessarily indicate specific
locations of any area, activity or use. A plan is 'coordinated '
when the needs of all levels of governments, semipublic and
private agencies and the { - citizens - } { + residents + }
of Oregon have been considered and accommodated as much as
possible. 'Land' includes water, both surface and subsurface, and
the air.
{ - (6) 'Department' means the Department of Land
Conservation and Development. - }
{ - (7) 'Director' means the Director of the Department of
Land Conservation and Development. - }
{ - (8) - } { + (4) + } 'Goals' means the mandatory
statewide land use planning standards adopted by the { + Oregon
Natural Resources + } Commission pursuant to ORS chapters 195,
196 and 197.
{ - (9) - } { + (5) + } 'Guidelines' means suggested
approaches designed to aid cities and counties in preparation,
adoption and implementation of comprehensive plans in compliance
with goals and to aid state agencies and special districts in the
preparation, adoption and implementation of plans, programs and
regulations in compliance with goals. Guidelines shall be
advisory and shall not limit state agencies, cities, counties and
special districts to a single approach.
{ - (10) - } { + (6) + } 'Land use decision':
(a) Includes:
(A) A final decision or determination made by a local
government or special district that concerns the adoption,
amendment or application of:
(i) The goals;
(ii) A comprehensive plan provision;
(iii) A land use regulation; or
(iv) A new land use regulation;
(B) A final decision or determination of a state agency other
than the { + Oregon Natural Resources + } Commission with
respect to which the agency is required to apply the goals; or
(C) A decision of a county planning commission made under ORS
433.763;
(b) Does not include a decision of a local government:
(A) That is made under land use standards that do not require
interpretation or the exercise of policy or legal judgment;
(B) That approves or denies a building permit issued under
clear and objective land use standards;
(C) That is a limited land use decision;
(D) That determines final engineering design, construction,
operation, maintenance, repair or preservation of a
transportation facility that is otherwise authorized by and
consistent with the comprehensive plan and land use regulations;
(E) That is an expedited land division as described in ORS
197.360;
(F) That approves, pursuant to ORS 480.450 (7), the siting,
installation, maintenance or removal of a liquefied petroleum gas
container or receptacle regulated exclusively by the State Fire
Marshal under ORS 480.410 to 480.460;
(G) That approves or denies approval of a final subdivision or
partition plat or that determines whether a final subdivision or
partition plat substantially conforms to the tentative
subdivision or partition plan; or
(H) That a proposed state agency action subject to ORS 197.180
(1) is compatible with the acknowledged comprehensive plan and
land use regulations implementing the plan, if:
(i) The local government has already made a land use decision
authorizing a use or activity that encompasses the proposed state
agency action;
(ii) The use or activity that would be authorized, funded or
undertaken by the proposed state agency action is allowed without
review under the acknowledged comprehensive plan and land use
regulations implementing the plan; or
(iii) The use or activity that would be authorized, funded or
undertaken by the proposed state agency action requires a future
land use review under the acknowledged comprehensive plan and
land use regulations implementing the plan;
(c) Does not include a decision by a school district to close a
school;
(d) Does not include authorization of an outdoor mass gathering
as defined in ORS 433.735, or other gathering of fewer than 3,000
persons that is not anticipated to continue for more than 120
hours in any three-month period; and
(e) Does not include:
(A) A writ of mandamus issued by a circuit court in accordance
with ORS 215.429 or 227.179;
(B) Any local decision or action taken on an application
subject to ORS 215.427 or 227.178 after a petition for a writ of
mandamus has been filed under ORS 215.429 or 227.179; or
(C) A state agency action subject to ORS 197.180 (1), if:
(i) The local government with land use jurisdiction over a use
or activity that would be authorized, funded or undertaken by the
state agency as a result of the state agency action has already
made a land use decision approving the use or activity; or
(ii) A use or activity that would be authorized, funded or
undertaken by the state agency as a result of the state agency
action is allowed without review under the acknowledged
comprehensive plan and land use regulations implementing the
plan.
{ - (11) - } { + (7) + } 'Land use regulation' means any
local government zoning ordinance, land division ordinance
adopted under ORS 92.044 or 92.046 or similar general ordinance
establishing standards for implementing a comprehensive plan.
{ - (12) - } { + (8) + } 'Limited land use decision':
(a) Means a final decision or determination made by a local
government pertaining to a site within an urban growth boundary
that concerns:
(A) The approval or denial of a tentative subdivision or
partition plan, as described in ORS 92.040 (1).
(B) The approval or denial of an application based on
discretionary standards designed to regulate the physical
characteristics of a use permitted outright, including but not
limited to site review and design review.
(b) Does not mean a final decision made by a local government
pertaining to a site within an urban growth boundary that
concerns approval or denial of a final subdivision or partition
plat or that determines whether a final subdivision or partition
plat substantially conforms to the tentative subdivision or
partition plan.
{ - (13) - } { + (9) + } 'Local government' means any city,
county or metropolitan service district formed under ORS chapter
268 or an association of local governments performing land use
planning functions under ORS 195.025.
{ - (14) - } { + (10) + } 'Metro' means a metropolitan
service district organized under ORS chapter 268.
{ - (15) - } { + (11) + } 'Metro planning goals and
objectives' means the land use goals and objectives that a
metropolitan service district may adopt under ORS 268.380 (1)(a).
The goals and objectives do not constitute a comprehensive plan.
{ - (16) - } { + (12) + } 'Metro regional framework plan'
means the regional framework plan required by the 1992 Metro
Charter or its separate components. Neither the regional
framework plan nor its individual components constitute a
comprehensive plan.
{ - (17) - } { + (13) + } 'New land use regulation' means a
land use regulation other than an amendment to an acknowledged
land use regulation adopted by a local government that already
has a comprehensive plan and land regulations acknowledged under
ORS 197.251.
{ - (18) - } { + (14) + } 'Person' means any individual,
partnership, corporation, association, governmental subdivision
or agency or public or private organization of any kind. The
{ - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission, + } or its
designee { + , + } is considered a person for purposes of appeal
under ORS chapters 195 and 197.
{ - (19) - } { + (15) + } 'Special district' means any unit
of local government, other than a city, county, metropolitan
service district formed under ORS chapter 268 or an association
of local governments performing land use planning functions under
ORS 195.025, authorized and regulated by statute and includes but
is not limited to water control districts, domestic water
associations and water cooperatives, irrigation districts, port
districts, regional air quality control authorities, fire
districts, school districts, hospital districts, mass transit
districts and sanitary districts.
{ - (20) - } { + (16) + } 'Urban unincorporated community'
means an area designated in a county's acknowledged comprehensive
plan as an urban unincorporated community after December 5, 1994.
{ - (21) - } { + (17) + } 'Voluntary association of local
governments ' means a regional planning agency in this state
officially designated by the Governor pursuant to the federal
Office of Management and Budget Circular A-95 as a regional
clearinghouse.
{ - (22) - } { + (18) + } 'Wetlands' means those areas that
are inundated or saturated by surface or ground water at a
frequency and duration that are sufficient to support, and that
under normal circumstances do support, a prevalence of vegetation
typically adapted for life in saturated soil conditions.
SECTION 935. ORS 197.040 is amended to read:
197.040. { - (1) The Land Conservation and Development
Commission shall: - }
{ - (a) Direct the performance by the Director of the
Department of Land Conservation and Development and the
director's staff of their functions under ORS chapters 195, 196
and 197. - }
{ + (1) For purposes related to the administration of the
laws of this state that pertain to land use decisions, limited
land use decisions, expedited land divisions and other land use
laws and regulations, the Oregon Natural Resources Commission
shall:
(a) Assist the Director of the Oregon Department of Natural
Resources and the director's staff in achieving the director's
duties, powers and functions under ORS chapters 195, 196 and
197. + }
(b) In accordance with the provisions of ORS chapter 183, adopt
rules that it considers necessary to carry out ORS chapters 195,
196 and 197. Except as provided in subsection (3) of this
section, in designing its administrative requirements, the
commission shall:
(A) Allow for the diverse administrative and planning
capabilities of local governments;
(B) Consider the variation in conditions and needs in different
regions of the state and encourage regional approaches to
resolving land use problems;
(C) Assess what economic and property interests will be, or are
likely to be, affected by the proposed rule;
(D) Assess the likely degree of economic impact on identified
property and economic interests; and
(E) Assess whether alternative actions are available that would
achieve the underlying lawful governmental objective and would
have a lesser economic impact.
(c)(A) Adopt by rule in accordance with ORS chapter 183 or by
goal under ORS chapters 195, 196 and 197 any statewide land use
policies that it considers necessary to carry out ORS chapters
195, 196 and 197.
(B) Adopt by rule in accordance with ORS chapter 183 any
procedures necessary to carry out ORS 215.402 (4)(b) and 227.160
(2)(b).
(C) Review decisions of the { - Land Use Board of Appeals - }
{ + Oregon Department of Natural Resources issued under ORS
197.830 to 197.845, + } and land use decisions of the Court of
Appeals and the Supreme Court { + , + } within 120 days of the
date the decisions are issued to determine if goal or rule
amendments are necessary.
(d) Cooperate with the appropriate agencies of the United
States, this state and its political subdivisions, any other
state, any interstate agency, any person or groups of persons
with respect to land conservation and development.
(e) Appoint advisory committees to aid it in carrying out ORS
chapters 195, 196 and 197 and provide technical and other
assistance, as it considers necessary, to each such committee.
(2) Pursuant to ORS chapters 195, 196 and 197, the commission
shall:
(a) Adopt, amend and revise goals consistent with regional,
county and city concerns;
(b) Prepare, collect, provide or cause to be prepared,
collected or provided land use inventories;
(c) Prepare statewide planning guidelines;
(d) Review comprehensive plans for compliance with goals;
(e) Coordinate planning efforts of state agencies to assure
compliance with goals and compatibility with city and county
comprehensive plans;
(f) Insure widespread citizen involvement and input in all
phases of the process;
(g) Review and recommend to the Legislative Assembly the
designation of areas of critical state concern;
(h) Report periodically to the Legislative Assembly and to the
committee;
(i) Review the land use planning responsibilities and
authorities given to the state, regions, counties and cities,
review the resources available to each level of government and
make recommendations to the Legislative Assembly to improve the
administration of the statewide land use program; and
(j) Perform other duties required by law.
(3) The requirements of subsection (1)(b) of this section shall
not be interpreted as requiring an assessment for each lot or
parcel that could be affected by the proposed rule.
SECTION 936. ORS 197.045 is amended to read:
197.045. { - The Land Conservation and Development Commission
may: - } { + For purposes related to the administration of the
laws of this state that pertain to land use decisions, limited
land use decisions, expedited land divisions and other land use
laws and regulations, the Oregon Natural Resources Commission
may: + }
(1) Apply for and receive moneys from the federal government
and from this state or any of its agencies or departments.
(2) Contract with any public agency for the performance of
services or the exchange of employees or services by one to the
other necessary in carrying out ORS chapters 195, 196 and 197.
(3) Contract for the services of and consultation with
professional persons or organizations, not otherwise available
through federal, state and local governmental agencies, in
carrying out its duties under ORS chapters 195, 196 and 197.
(4) Perform other functions required to carry out ORS chapters
195, 196 and 197.
(5) Assist in development and preparation of model land use
regulations to guide state agencies, cities, counties and special
districts in implementing goals.
(6) Notwithstanding any other provision of law, review
comprehensive plan and land use regulations related to the
identification and designation of high-value farmland pursuant to
chapter 792, Oregon Laws 1993, under procedures set forth in ORS
197.251.
SECTION 937. ORS 197.047 is amended to read:
197.047. (1) As used in this section, 'owner' means the owner
of the title to real property or the contract purchaser of real
property, of record as shown on the last available complete tax
assessment roll.
(2) At least 90 days prior to the final public hearing on a
proposed new or amended administrative rule of the { - Land
Conservation and Development Commission - } { + Oregon Natural
Resources Commission + } described in subsection (10) of this
section, the
{ - Department of Land Conservation and Development - }
{ + Oregon Department of Natural Resources + } shall cause the
notice set forth in subsection (3) of this section to be mailed
to every affected local government that exercises land use
planning authority under ORS 197.175.
(3) The notice required in subsection (2) of this section must:
(a) Contain substantially the following language in boldfaced
type across the top of the face page extending from the left
margin to the right margin:
_________________________________________________________________
This is to notify you that the { - Land Conservation and
Development Commission - } { + Oregon Natural Resources
Commission + } has proposed a new or amended administrative rule
that, if adopted, may affect the permissible uses of properties
in your jurisdiction.
_________________________________________________________________
(b) Contain substantially the following language in the body of
the notice:
_________________________________________________________________
On (date of public hearing), the { - Land Conservation and
Development Commission - } { + Oregon Natural Resources
Commission + } will hold a public hearing regarding adoption of
proposed (new or amended) rule (number). Adoption of the rule may
change the zoning classification of properties in your
jurisdiction or may limit or prohibit land uses previously
allowed on properties in your jurisdiction.
Rule (number) is available for inspection at the
{ - Department of Land Conservation and Development - }
{ + Oregon Department of Natural Resources + } located at
(address). A copy of the proposed rule (number) also is available
for purchase at a cost of $___.
For additional information, contact the { - Department of
Land Conservation and Development - } { + Oregon Department of
Natural Resources + } at (telephone number).
_________________________________________________________________
(4) A local government that receives notice under subsection
(2) of this section shall cause the notice set forth in
subsection (5) of this section to be mailed to every owner of
real property that will be rezoned as a result of the proposed
rule. Notice to an owner under this subsection must be mailed at
least 45 days prior to the final public hearing on the proposed
rule.
(5) The notice required in subsection (4) of this section must:
(a) Contain substantially the following language in boldfaced
type across the top of the face page extending from the left
margin to the right margin:
_________________________________________________________________
This is to notify you that the { - Land Conservation and
Development Commission - } { + Oregon Natural Resources
Commission + } has proposed a new or amended administrative rule
that, if adopted, may affect the permissible uses of your
property and other properties.
_________________________________________________________________
(b) Contain substantially the following language in the body of
the notice:
_________________________________________________________________
On (date of public hearing), the { - Land Conservation and
Development Commission - } { + Oregon Natural Resources
Commission + } will hold a public hearing regarding adoption of
proposed (new or amended) rule (number). Adoption of the rule may
affect the permissible uses of your property, and other
properties in the affected zone, and may change the value of your
property.
Rule (number) is available for inspection at the
{ - Department of Land Conservation and Development - }
{ + Oregon Department of Natural Resources + } located at
(address). A copy of the proposed rule (number) also is available
for purchase at a cost of $___.
For additional information, contact the { - Department of
Land Conservation and Development - } { + Oregon Department of
Natural Resources + } at (telephone number).
_________________________________________________________________
(6) At least 90 days prior to the effective date of a new or
amended statute or administrative rule described in subsection
(10) of this section, the department shall cause the notice set
forth in subsection (7) of this section to be mailed to every
affected local government that exercises land use planning
authority under ORS 197.175 unless the statute or rule is
effective within 90 days of enactment or adoption, in which case
the department shall cause the notice to be mailed not later than
30 days after the statute or rule is effective.
(7) The notice required in subsection (6) of this section must:
(a) Contain substantially the following language in boldfaced
type across the top of the face page extending from the left
margin to the right margin:
_________________________________________________________________
(Check on the appropriate line:)
___ This is to notify you that the { - Land Conservation and
Development Commission - } { + Oregon Natural Resources
Commission + } has adopted an administrative rule that may affect
the permissible uses of properties in your jurisdiction; or
___ This is to notify you that the Legislative Assembly has
enacted a land use planning statute that may affect the
permissible uses of properties in your jurisdiction.
_________________________________________________________________
(b) Contain substantially the following language in the body of
the notice:
_________________________________________________________________
(Check on the appropriate line:)
___ On (date of rule adoption), the { - Land Conservation and
Development Commission - } { + Oregon Natural Resources
Commission + } adopted administrative rule (number). The
commission has determined that this rule may change the zoning
classification of properties in your jurisdiction or may limit or
prohibit land uses previously allowed on properties in your
jurisdiction.
Rule (number) is available for inspection at the
{ - Department of Land Conservation and Development - }
{ + Oregon Department of Natural Resources + } located at
(address). A copy of the rule (number) also is available for
purchase at a cost of $___.
For additional information, contact the { - Department of
Land Conservation and Development - } { + Oregon Department of
Natural Resources + } at (telephone number); or
___ On (date of enactment) the Legislative Assembly enacted
(House/Senate bill number). The { - Department of Land
Conservation and Development - } { + Oregon Department of
Natural Resources + } has determined that enactment of
(House/Senate bill number) may change the zoning classification
of properties in your jurisdiction or may limit or prohibit land
uses previously allowed on properties in your jurisdiction.
A copy of (House/Senate bill number) is available for
inspection at the { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + }
located at (address). A copy of (House/Senate bill number) also
is available for purchase at a cost of $___.
For additional information, contact the { - Department of
Land Conservation and Development - } { + Oregon Department of
Natural Resources + } at (telephone number).
_________________________________________________________________
(8) A local government that receives notice under subsection
(6) of this section shall cause a copy of the notice set forth in
subsection (9) of this section to be mailed to every owner of
real property that will be rezoned as a result of adoption of the
rule or enactment of the statute, unless notification was
provided pursuant to subsection (4) of this section. The local
government shall mail the notice to an owner under this
subsection at least 45 days prior to the effective date of the
rule or statute unless the statute or rule is effective within 90
days of enactment or adoption, in which case the local government
shall mail the notice to an owner under this subsection not later
than 30 days after the local government receives notice under
subsection (6) of this section.
(9) The notice required in subsection (8) of this section must:
(a) Contain substantially the following language in boldfaced
type across the top of the face page extending from the left
margin to the right margin:
_________________________________________________________________
(Check on the appropriate line:)
___ This is to notify you that the { - Land Conservation and
Development Commission - } { + Oregon Natural Resources
Commission + } has adopted an administrative rule that may affect
the permissible uses of your property and other properties; or
___ This is to notify you that the Legislative Assembly has
enacted a land use planning statute that may affect the
permissible uses of your property and other properties.
_________________________________________________________________
(b) Contain substantially the following language in the body of
the notice:
_________________________________________________________________
(Check on the appropriate line:)
___ On (date of rule adoption), the { - Land Conservation and
Development Commission - } { + Oregon Natural Resources
Commission + } adopted administrative rule (number). The rule may
affect the permissible uses of your property, and other
properties in the affected zone, and may change the value of your
property.
Rule (number) is available for inspection at the
{ - Department of Land Conservation and Development - }
{ + Oregon Department of Natural Resources + } located at
(address). A copy of the rule (number) also is available for
purchase at a cost of $___.
For additional information, contact the { - Department of
Land Conservation and Development - } { + Oregon Department of
Natural Resources + } at (telephone number); or
___ On (date of enactment) the Legislative Assembly enacted
(House/Senate bill number). The { - Department of Land
Conservation and Development - } { + Oregon Department of
Natural Resources + } has determined that enactment of
(House/Senate bill number) may affect the permissible uses of
your property, and other properties in the affected zone, and may
change the value of your property.
A copy of (House/Senate bill number) is available for
inspection at the { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + }
located at (address). A copy of (House/Senate bill number) also
is available for purchase at a cost of $___.
For additional information, contact the { - Department of
Land Conservation and Development - } { + Oregon Department of
Natural Resources + } at (telephone number).
_________________________________________________________________
(10) The provisions of this section apply to all statutes and
administrative rules of the { - Land Conservation and
Development Commission - } { + commission + } that limit or
prohibit otherwise permissible land uses or cause a local
government to rezone property. For purposes of this section,
property is rezoned when the statute or administrative rule
causes a local government to:
(a) Change the base zoning classification of the property; or
(b) Adopt or amend an ordinance in a manner that limits or
prohibits land uses previously allowed in the affected zone.
(11) The { - Department of Land Conservation and
Development - } { + department + } shall reimburse the local
government for:
(a) The actual costs incurred responding to questions from the
public related to a proposed new or amended administrative rule
of the { - Land Conservation and Development - } commission
and to notice of the proposed rule; and
(b) All usual and reasonable costs of providing the notices
required under subsection (4) or (8) of this section.
SECTION 938. ORS 197.050 is amended to read:
197.050. Except as provided in ORS 196.150 and 196.155, if an
interstate land conservation and development planning agency is
created by an interstate agreement or compact entered into by
this state, the { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + }
shall perform the functions of this state with respect to the
agreement or compact. If the functions of the interstate planning
agency duplicate any of the functions of the commission under ORS
195.020 to 195.040, ORS chapter 197 and ORS 469.350, the
commission may:
(1) Negotiate with the interstate agency in defining the areas
of responsibility of the commission and the interstate planning
agency; and
(2) Cooperate with the interstate planning agency in the
performance of its functions.
SECTION 939. ORS 197.060 is amended to read:
197.060. (1) Prior to the end of each even-numbered year, the
{ - Department of Land Conservation and Development - }
{ + Oregon Department of Natural Resources + } shall prepare a
written report for submission to the Legislative Assembly of the
State of Oregon describing activities and accomplishments of the
department, { - Land Conservation and Development
Commission - } { + the Oregon Natural Resources Commission + },
state agencies, local governments and special districts in
carrying out ORS chapters 195, 196 and 197.
(2) A draft of the report required by subsection (1) of this
section shall be submitted to the appropriate legislative
committee at least 60 days prior to submission of the report to
the Legislative Assembly. Comments of the committee shall be
incorporated into the final report.
(3) Goals and guidelines adopted by the commission shall be
included in the report to the Legislative Assembly submitted
under subsection (1) of this section.
(4) The department shall include in its biennial report:
(a) A description of its activities implementing ORS 197.631;
and
(b) An accounting of new statutory, land use planning goal and
rule requirements and local government compliance with the new
requirements pursuant to ORS 197.646.
SECTION 940. ORS 197.065 is amended to read:
197.065. (1) Prior to each legislative session, the { - Land
Conservation and Development Commission - } { + Oregon Natural
Resources Commission + } shall submit to the appropriate
legislative committee a written report analyzing applications
approved and denied for:
(a) New and replacement dwellings under:
(A) ORS 215.213 (1)(d) and (f), (2)(a) and (b), (3) and (4),
215.283 (1)(d) and (e), 215.284 and 215.705; and
(B) Any land zoned for forest use under any statewide planning
goal that relates to forestland;
(b) Divisions of land under:
(A) ORS 215.263 (2), (4) and (5); and
(B) Any land zoned for forest use under any statewide planning
goal that relates to forestland;
(c) Dwellings and land divisions approved for marginal lands
under:
(A) ORS 215.317 or 215.327; and
(B) Any land zoned for forest use under any statewide planning
goal that relates to forestland; and
(d) Such other matters pertaining to protection of agricultural
or forest land as the commission deems appropriate.
(2) The governing body of each county shall provide the
{ - Department of Land Conservation and Development - }
{ + Oregon Department of Natural Resources + } with a report of
its actions involving those dwellings, land divisions and land
designations upon which the commission must report to the
appropriate legislative committee under subsection (1) of this
section. The department shall establish, after consultation with
county governing bodies, an annual reporting period and may
establish a schedule for receiving county reports at intervals
within the reporting period. The report shall be on a standard
form with a standardized explanation adopted by the commission
and shall be eligible for grants by the commission. The report
shall include the findings for each action except actions
involving:
(a) Dwellings authorized by ORS 215.213 (1)(d) or 215.283
(1)(d); or
(b) Land divisions authorized by ORS 215.263 (2) creating
parcels as large as or larger than a minimum size established by
the commission under ORS 215.780.
(3) The governing body of each county shall, upon request by
the department, provide the department with other information
necessary to carry out subsection (1) of this section.
SECTION 941. ORS 197.070 is amended to read:
197.070. The { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + }
shall keep on file and available for public inspection the
assessments prepared pursuant to ORS 197.040 and 197.230.
SECTION 942. ORS 197.090, as amended by section 8, chapter 8,
Oregon Laws 2010, and section 10, chapter 107, Oregon Laws 2010,
is amended to read:
197.090. { - (1) Subject to policies adopted by the Land
Conservation and Development Commission, the Director of the
Department of Land Conservation and Development shall: - }
{ - (a) Be the administrative head of the Department of Land
Conservation and Development. - }
{ + (1) For purposes related to the administration of the
laws of this state that pertain to land use decisions, limited
land use decisions, expedited land divisions and other land use
laws and regulations, the Director of the Oregon Department of
Natural Resources shall: + }
{ - (b) - } { + (a) + } Coordinate the activities of the
{ - department - } { + Oregon Department of Natural
Resources + } in its land conservation and development functions
with such functions of federal agencies, other state agencies,
local governments and special districts.
{ - (c) Appoint, reappoint, assign and reassign all
subordinate officers and employees of the department, prescribe
their duties and fix their compensation, subject to the State
Personnel Relations Law. - }
{ - (d) - } { + (b) + } Represent this state before any
agency of this state, any other state or the United States with
respect to land conservation and development within this state.
(2)(a) Subject to local government requirements and the
provisions of ORS 197.830 to 197.845, the director may
participate in and seek review of:
(A) A land use decision, expedited land division or limited
land use decision involving the goals or involving an
acknowledged comprehensive plan and land use regulations
implementing the plan; or
(B) Any other matter within the statutory authority of the
department or { + the Oregon Natural Resources + } Commission
under ORS chapters 195, 196 and 197.
(b) The director shall report to the commission on each case in
which the department participates { + under this section + } and
on the positions taken by the director in each case.
(c) If a meeting of the commission is scheduled prior to the
close of the period for seeking review of a land use decision,
expedited land division or limited land use decision, the
director shall obtain formal approval from the commission prior
to seeking review of the decision. However, if the land use
decision, expedited land division or limited land use decision
becomes final less than 15 days before a meeting of the
commission, the director shall proceed as provided in paragraph
(d) of this subsection. If the director requests approval from
the commission, the applicant and the affected local government
shall be notified in writing that the director is seeking
commission approval. The director, the applicant and the affected
local government shall be given reasonable time to address the
commission regarding the director's request for approval to seek
review. The parties shall limit their testimony to the factors
established under subsection (3) of this section. No other
testimony shall be taken by the commission.
(d) If a meeting of the commission is not scheduled prior to
the close of the period for seeking review of a land use
decision, expedited land division or limited land use decision,
at the next commission meeting the director shall report to the
commission on each case for which the department has sought
review. The director shall request formal approval to proceed
with each appeal. The applicant and the affected local government
shall be notified of the commission meeting in writing by the
director. The director, the applicant and the affected local
government shall be given reasonable time to address the
commission regarding the director's request for approval to
proceed with the appeal. The parties shall limit their testimony
to the factors established under subsection (3) of this section.
No other testimony shall be taken by the commission. If the
commission does not formally approve an appeal, the director
shall file a motion with the appropriate tribunal to dismiss the
appeal.
(e) A decision by the commission under this subsection is not
subject to appeal.
(f) For purposes of this subsection, 'applicant' means a person
seeking approval of a permit, as defined in ORS 215.402 or
227.160, expedited land division or limited land use decision.
(3) The commission by rule shall adopt a set of factors for the
commission to consider when determining whether to appeal or
intervene in the appeal of a land use decision, expedited land
division or limited land use decision that involves the
application of the goals, acknowledged comprehensive plan, land
use regulation or other matter within the authority of the
department or commission under ORS chapters 195, 196 and 197.
(4) The director may intervene in an appeal of a land use
decision, expedited land division or limited land use decision
brought by another person in the manner provided for an appeal by
the director under subsection (2)(c) and (d) of this section.
SECTION 943. ORS 197.158 is amended to read:
197.158. (1) The { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + }, in
cooperation with the Oregon Law Commission and other public or
private entities, may, as resources are available, appoint a work
group to conduct a policy-neutral review and audit of ORS
chapters 195, 196, 197, 215 and 227, the statewide land use
planning goals and the rules of the { + Oregon Natural
Resources + } Commission implementing the goals.
(2) The { + Oregon Natural Resources + } Commission shall
sequence any review based on its judgment as to which aspects of
the statewide land use program are most in need of updating.
(3) A review undertaken under this section should, but does not
have to, include appropriate involvement of local government,
professional land use planning, private legal and other
representatives.
(4) Recommendations should, but do not have to, address major
policies and key procedures that are most appropriate for
enactment by law and what policies and procedures are most
appropriate for adoption by statewide land use planning goals or
rules to allow for greater variation between regions of the state
over time and to reduce complexity.
SECTION 944. ORS 197.160 is amended to read:
197.160. (1) To assure widespread citizen involvement in all
phases of the planning process:
(a) The { - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + } shall appoint a
State Citizen Involvement Advisory Committee, broadly
representative of geographic areas of the state and of interests
relating to land uses and land use decisions, to develop a
program for the commission that promotes and enhances public
participation in the adoption and amendment of the goals and
guidelines.
(b) Each city and county governing body shall submit to the
commission, on a periodic basis established by commission rule, a
program for citizen involvement in preparing, adopting and
amending comprehensive plans and land use regulations within the
respective city and county. Such program shall at least contain
provision for a citizen advisory committee or committees broadly
representative of geographic areas and of interests relating to
land uses and land use decisions.
(c) The State Citizen Involvement Advisory Committee appointed
under paragraph (a) of this subsection shall review the proposed
programs submitted by each city and county and report to the
commission whether or not the proposed program adequately
provides for public involvement in the planning process, and, if
it does not so provide, in what respects it is inadequate.
(2) The State Citizen Involvement Advisory Committee is limited
to an advisory role to the commission. It has no express or
implied authority over any local government or state agency.
SECTION 945. ORS 197.165 is amended to read:
197.165. For the purpose of promoting mutual understanding and
cooperation between the { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + } and
local government in the implementation of ORS chapters 195, 196
and 197 and the goals, the commission shall appoint a Local
Officials Advisory Committee. The committee shall be comprised of
persons serving as city or county elected officials and its
membership shall reflect the city, county and geographic
diversity of the state. The committee shall advise and assist the
commission on its policies and programs affecting local
governments.
SECTION 946. ORS 197.173 is amended to read:
197.173. The Legislative Assembly finds and declares that:
(1) Improving coordination and consistency between the duties
and actions of state agencies that affect land use and the duties
and actions of local governments under comprehensive plans and
land use regulations is required to ensure that the actions of
state agencies complement both state and local land use planning
objectives.
(2) Improved coordination is necessary to streamline state and
local permitting procedures.
(3) The { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + }
has not engaged in a formal and concerted effort to update state
agency land use coordination programs since 1989, and that state
agency rules, plans and programs affecting land use and local
government comprehensive plans and land use regulations have
changed substantially since that time.
(4) Rules of the { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + }
regarding state agency land use coordination and state permit
compliance and compatibility should be:
(a) Reviewed to eliminate unclear or conflicting provisions and
to ensure that local land use decisions authorizing a use
generally precede state agency decisions on permits for the use
or for aspects of the use; and
(b) Updated regularly to maintain a high level of coordination
between state agencies and local governments in reviewing
authorizations for a use of property.
SECTION 947. ORS 197.175 is amended to read:
197.175. (1) Cities and counties shall exercise their planning
and zoning responsibilities, including, but not limited to, a
city or special district boundary change which shall mean the
annexation of unincorporated territory by a city, the
incorporation of a new city and the formation or change of
organization of or annexation to any special district authorized
by ORS 198.705 to 198.955, 199.410 to 199.534 or 451.010 to
451.620, in accordance with ORS chapters 195, 196 and 197 and the
goals approved under ORS chapters 195, 196 and 197. The
{ - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + } shall adopt rules
clarifying how the goals apply to the incorporation of a new
city. Notwithstanding the provisions of section 15, chapter 827,
Oregon Laws 1983, the rules shall take effect upon adoption by
the commission. The applicability of rules promulgated under this
section to the incorporation of cities prior to August 9, 1983,
shall be determined under the laws of this state.
(2) Pursuant to ORS chapters 195, 196 and 197, each city and
county in this state shall:
(a) Prepare, adopt, amend and revise comprehensive plans in
compliance with goals approved by the commission;
(b) Enact land use regulations to implement their comprehensive
plans;
(c) If its comprehensive plan and land use regulations have not
been acknowledged by the commission, make land use decisions and
limited land use decisions in compliance with the goals;
(d) If its comprehensive plan and land use regulations have
been acknowledged by the commission, make land use decisions and
limited land use decisions in compliance with the acknowledged
plan and land use regulations; and
(e) Make land use decisions and limited land use decisions
subject to an unacknowledged amendment to a comprehensive plan or
land use regulation in compliance with those land use goals
applicable to the amendment.
(3) Notwithstanding subsection (1) of this section, the
commission shall not initiate by its own action any annexation of
unincorporated territory pursuant to ORS 222.111 to 222.750 or
formation of and annexation of territory to any district
authorized by ORS 198.510 to 198.915 or 451.010 to 451.620.
SECTION 948. ORS 197.178 is amended to read:
197.178. A local government with a comprehensive plan or
functional plan identified in ORS 197.296 (1) shall compile and
report annually to the { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + }
the following information for all permit applications received
under ORS 227.175:
(1) The number of applications received for residential
development, including the residential density proposed in the
application and the maximum allowed residential density for the
subject zone;
(2) The number of applications approved, including the approved
density; and
(3) The date each application was received and the date it was
approved or denied.
SECTION 949. ORS 197.180 is amended to read:
197.180. (1) Except as provided in ORS 197.277 or subsection
(2) of this section or unless expressly exempted by another
statute from any of the requirements of this section, state
agencies shall carry out their planning duties, powers and
responsibilities and take actions that are authorized by law with
respect to programs affecting land use:
(a) In compliance with the goals, rules implementing the goals
and rules implementing this section; and
(b) In a manner compatible with acknowledged comprehensive
plans and land use regulations.
(2) State agencies need not comply with subsection (1)(b) of
this section if a state agency rule, plan or program relating to
land use was not in effect when the comprehensive plan provision
or land use regulation with which the action would be
incompatible was acknowledged and the agency has demonstrated
that:
(a) The state agency rule, plan or program is mandated by state
statute or federal law;
(b) The state agency rule, plan or program is consistent with
the goals;
(c) The state agency rule, plan or program has objectives that
cannot be achieved in a manner compatible with the acknowledged
comprehensive plan and land use regulations; and
(d) The agency has complied with its certified state agency
coordination program.
(3) Unless federal or state law requires otherwise, the { +
Oregon Natural Resources + } Commission, by rule, may specify the
sequence of a local government land use decision and a state
agency action concerning the same, similar or related uses or
activities.
(4) Upon request by the { - Land Conservation and Development
Commission, each state agency shall submit to the Department of
Land Conservation and Development - } { + commission, each
state agency shall submit to the Oregon Department of Natural
Resources + } the following information:
(a) Agency rules and summaries of state agency plans and
programs affecting land use;
(b) A program for coordination pursuant to ORS 197.040 (2)(e);
(c) A program for coordination pursuant to ORS 197.090
{ - (1)(b) - } { + (1)(a) + }; and
(d) A program for cooperation with and technical assistance to
local governments.
(5) Within 90 days of receipt, the Director of the
{ - Department of Land Conservation and Development - }
{ + Oregon Department of Natural Resources + } shall review the
information submitted pursuant to subsection (4) of this section
and shall notify each state agency if the director believes the
state agency rules, plans or programs submitted are insufficient
to ensure compliance with goals and compatibility with
acknowledged comprehensive plans and land use regulations.
(6) Within 90 days of receipt of notification specified in
subsection (5) of this section, the state agency may revise the
state agency rules, plans or programs and resubmit them to the
director.
(7) The director shall make findings under subsections (5) and
(6) of this section as to whether the state agency rules, plans
or programs are sufficient to ensure compliance with the goals
and compatibility with acknowledged city and county comprehensive
plans and land use regulations and shall forward the rules and
summaries of state agency plans or programs to the commission for
its action. The commission shall either certify the state agency
rules, plans or programs as compliant with the goals and
compatible with the acknowledged comprehensive plans and land use
regulations of affected local governments or shall determine the
same to be insufficient.
(8) The department shall report, to the appropriate committee
of the House and the Senate and to the subcommittee of the Joint
Ways and Means Committee that considers the state agency budget,
any agency that has failed to meet the requirements of subsection
(7) of this section.
(9) Any state agency that has failed to meet the requirements
of subsection (7) of this section shall report the reasons
therefor to the appropriate committee of the House and the Senate
and to the subcommittee of the Joint Ways and Means Committee
that considers the agency budget.
(10) Until rules and state agency plans and programs are
certified as compliant with the goals and compatible with the
acknowledged comprehensive plans and land use regulations of
affected local governments, the state agency shall make findings
when adopting or amending its rules and state agency plans and
programs as to the applicability and application of the goals or
acknowledged comprehensive plans, as appropriate.
(11) The commission shall adopt rules establishing procedures
to ensure that state agency permits affecting land use are issued
in compliance with the goals and compatible with acknowledged
comprehensive plans and land use regulations, as required by
subsection (1) of this section. The rules must prescribe the
circumstances in which state agencies may rely upon a
determination of compliance with the goals or compatibility with
the acknowledged comprehensive plan.
(12) A state agency required to have a land use coordination
program shall participate in a local government land use hearing,
except a hearing under ORS 197.610 to 197.625, only in a manner
that is consistent with the coordination program, unless the
agency participated in the local government's periodic review
pursuant to ORS 197.633 and raised the issue that is the basis
for participation in the land use hearing.
(13) State agency rules, plans or programs affecting land use
are not compatible with an acknowledged comprehensive plan if the
state agency takes or approves an action that is not allowed
under the acknowledged comprehensive plan. However, a state
agency may apply statutes and rules to deny, condition or further
restrict an action of the state agency or of any applicant before
the state agency if the state agency applies those statutes and
rules to the uses planned for in the acknowledged comprehensive
plan.
(14) In cooperation with local governments and state agencies
whose rules, plans or programs affect land use, the department
periodically shall:
(a) Identify aspects of coordination related to uses that
require the issuance of multiple permits from state agencies and
local governments.
(b) Update and improve rules regulating the effectiveness and
efficiency of state agency coordination programs.
(15) This section does not apply to rules, plans, programs,
decisions, determinations or activities carried out under ORS
527.610 to 527.770, 527.990 (1) and 527.992.
SECTION 950. ORS 197.225 is amended to read:
197.225. The { - Department of Land Conservation and
Development shall prepare and the Land Conservation and
Development Commission - } { + Oregon Department of Natural
Resources shall prepare and the Oregon Natural Resources
Commission + } shall adopt goals and guidelines for use by state
agencies, local governments and special districts in preparing,
adopting, amending and implementing existing and future
comprehensive plans.
SECTION 951. ORS 197.230 is amended to read:
197.230. (1) In preparing, adopting and amending goals and
guidelines, the { - Department of Land Conservation and
Development and the Land Conservation and Development
Commission - } { + Oregon Department of Natural Resources and
the Oregon Natural Resources Commission + } shall:
(a) Assess:
(A) What economic and property interests will be, or are likely
to be, affected by the proposed goal or guideline;
(B) The likely degree of economic impact on identified property
and economic interests; and
(C) Whether alternative actions are available that would
achieve the underlying lawful governmental objective and would
have a lesser economic impact.
(b) Consider the existing comprehensive plans of local
governments and the plans and programs affecting land use of
state agencies and special districts in order to preserve
functional and local aspects of land conservation and
development.
(c) Give consideration to the following areas and activities:
(A) Lands adjacent to freeway interchanges;
(B) Estuarine areas;
(C) Tide, marsh and wetland areas;
(D) Lakes and lakeshore areas;
(E) Wilderness, recreational and outstanding scenic areas;
(F) Beaches, dunes, coastal headlands and related areas;
(G) Wild and scenic rivers and related lands;
(H) Floodplains and areas of geologic hazard;
(I) Unique wildlife habitats; and
(J) Agricultural land.
(d) Make a finding of statewide need for the adoption of any
new goal or the amendment of any existing goal.
(e) Design goals to allow a reasonable degree of flexibility in
the application of goals by state agencies, cities, counties and
special districts.
(2) Goals shall not be land management regulations for
specified geographic areas established through designation of an
area of critical state concern under ORS 197.405.
(3) The requirements of subsection (1)(a) of this section shall
not be interpreted as requiring an assessment for each lot or
parcel that could be affected by the proposed rule.
(4) The commission may exempt cities with a population less
than 10,000, or those areas of a county inside an urban growth
boundary that contain a population less than 10,000, from all or
any part of land use planning goals, guidelines and
administrative rules that relate to transportation planning.
SECTION 952. ORS 197.235 is amended to read:
197.235. (1) In preparing the goals and guidelines, the
{ - Department of Land Conservation and Development - }
{ + Oregon Department of Natural Resources + } shall:
(a) Hold at least 10 public hearings throughout the state,
causing notice of the time, place and purpose of each hearing to
be published in a newspaper of general circulation within the
area where the hearing is to be conducted not later than 30 days
prior to the date of the hearing. At least two public hearings
must be held in each congressional district.
(b) Implement any other provision for public involvement
developed by the State Citizen Involvement Advisory Committee
under ORS 197.160 (1) and approved by the { - Land Conservation
and Development Commission - } { + Oregon Natural Resources
Commission + }.
(2) Upon completion of the preparation of the proposed goals
and guidelines, or amendments to those goals and guidelines, the
department shall submit them to the commission, the Local
Officials Advisory Committee, the State Citizen Involvement
Advisory Committee and the appropriate legislative committee for
review.
(3) The commission shall consider the comments of the Local
Officials Advisory Committee, the State Citizen Involvement
Advisory Committee and the legislative committee before the
adoption and amendment of the goals and guidelines.
(4) Notwithstanding subsection (1)(a) of this section, when a
legislative enactment or an initiative measure is inconsistent
with the adopted goals and guidelines or directs the commission
to make a specific change to the adopted goals and guidelines,
the commission may amend the goals and guidelines after only one
public hearing, at a location determined by the commission, if
the proposed amendment:
(a) Is necessary to conform the goals and guidelines to the
legislative enactment or the initiative measure; and
(b) Makes no change other than the conforming changes unless
the change corrects an obvious scrivener's error.
SECTION 953. ORS 197.240 is amended to read:
197.240. Upon receipt of the proposed goals and guidelines
prepared and submitted to it by the { - Department of Land
Conservation and Development, the Land Conservation and
Development Commission - } { + Oregon Department of Natural
Resources, the Oregon Natural Resources Commission + } shall:
(1) Hold at least one public hearing on the proposed goals and
guidelines. The commission shall cause notice of the time, place
and purpose of the hearings and the place where copies of the
proposed goals and guidelines are available before the hearings
with the cost thereof to be published in a newspaper of general
circulation in the state not later than 30 days prior to the date
of the hearing. The department shall supply a copy of its
proposed goals and guidelines to the Governor, the appropriate
legislative committee, affected state agencies and special
districts and to each local government without charge. The
department shall provide copies of such proposed goals and
guidelines to other public agencies or persons upon request and
payment of the cost of preparing the copies of the materials
requested.
(2) Consider the recommendations and comments received from the
public hearings conducted under subsection (1) of this section,
make any amendments to the proposed goals and guidelines that
{ - it - } { + the commission + } considers necessary and
approve the proposed goals and guidelines as they may be amended
by the commission.
SECTION 954. ORS 197.245 is amended to read:
197.245. The { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + } may
periodically amend the initial goals and guidelines adopted under
ORS 197.240 and adopt new goals and guidelines. The adoption of
amendments to or of new goals shall be done in the manner
provided in ORS 197.235 and 197.240 and shall specify with
particularity those goal provisions that are applicable to land
use decisions, expedited land divisions and limited land use
decisions before plan revision. The commission shall establish
the effective date for application of a new or amended goal.
Absent a compelling reason, the commission shall not require a
comprehensive plan, new or amended land use regulation, land use
decision, expedited land division or limited land use decision to
be consistent with a new or amended goal until one year after the
date of adoption.
SECTION 955. ORS 197.250 is amended to read:
197.250. Except as otherwise provided in ORS 197.245, all
comprehensive plans and land use regulations adopted by a local
government to carry out those comprehensive plans and all plans,
programs, rules or regulations affecting land use adopted by a
state agency or special district shall be in compliance with the
goals within one year after the date those goals are approved by
the { - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + }.
SECTION 956. ORS 197.251 is amended to read:
197.251. (1) Upon the request of a local government, the
{ - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + } shall by order
grant, deny or continue acknowledgment of compliance of
comprehensive plan and land use regulations with the goals. A
commission order granting, denying or continuing acknowledgment
shall be entered within 90 days of the date of the request by the
local government unless the commission finds that due to
extenuating circumstances a period of time greater than 90 days
is required.
(2) In accordance with rules of the commission, the Director of
the { - Department of Land Conservation and Development - }
{ + Oregon Department of Natural Resources + } shall prepare a
report for the commission stating whether the comprehensive plan
and land use regulations for which acknowledgment is sought are
in compliance with the goals. The rules of the commission shall:
(a) Provide a reasonable opportunity for persons to prepare and
to submit to the director written comments and objections to the
acknowledgment request; and
(b) Authorize the director to investigate and in the report to
resolve issues raised in the comments and objections or by the
director's own review of the comprehensive plan and land use
regulations.
(3) Upon completion of the report and before the commission
meeting at which the director's report is to be considered, the
director shall afford the local government and persons who
submitted written comments or objections a reasonable opportunity
to file written exceptions to the report.
(4) The commission's review of the acknowledgment request shall
be confined to the record of proceedings before the local
government, any comments, objections and exceptions filed under
subsections (2) and (3) of this section and the report of the
director. Upon its consideration of an acknowledgment request,
the commission may entertain oral argument from the director and
from persons who filed written comments, objections or
exceptions. However, the commission shall not allow additional
evidence or testimony that could have been presented to the local
government or to the director but was not.
(5) A commission order granting, denying or continuing
acknowledgment shall include a clear statement of findings which
sets forth the basis for the approval, denial or continuance of
acknowledgment. The findings shall:
(a) Identify the goals applicable to the comprehensive plan and
land use regulations; and
(b) Include a clear statement of findings in support of the
determinations of compliance and noncompliance.
(6) A commission order granting acknowledgment shall be limited
to an identifiable geographic area described in the order if:
(a) Only the identified geographic area is the subject of the
acknowledgment request; or
(b) Specific geographic areas do not comply with the applicable
goals, and the goal requirements are not technical or minor in
nature.
(7) The commission may issue a limited acknowledgment order
when a previously issued acknowledgment order is reversed or
remanded by the Court of Appeals or the Oregon Supreme Court.
Such a limited acknowledgment order may deny or continue
acknowledgment of that part of the comprehensive plan or land use
regulations that the court found not in compliance or not
consistent with the goals and grant acknowledgment of all other
parts of the comprehensive plan and land use regulations.
(8) A limited acknowledgment order shall be considered an
acknowledgment for all purposes and shall be a final order for
purposes of judicial review with respect to the acknowledged
geographic area. A limited order may be adopted in conjunction
with a continuance or denial order.
(9) The director shall notify the Real Estate Agency, the local
government and all persons who filed comments or objections with
the director of any grant, denial or continuance of
acknowledgment.
(10) The commission may grant a planning extension, which shall
be a grant of additional time for a local government to comply
with the goals in accordance with a compliance schedule. A
compliance schedule shall be a listing of the tasks which the
local government must complete in order to bring its
comprehensive plan, land use regulations, land use decisions and
limited land use decisions into initial compliance with the
goals, including a generalized time schedule showing when the
tasks are estimated to be completed and when a comprehensive plan
or land use regulations which comply with the goals are estimated
to be adopted. In developing a compliance schedule, the
commission shall consider the population, geographic area,
resources and capabilities of the city or county.
(11) As used in this section:
(a) 'Continuance' means a commission order that:
(A) Certifies that all or part of a comprehensive plan, land
use regulations or both a comprehensive plan and land use
regulations do not comply with one or more goals;
(B) Specifies amendments or other action that must be completed
within a specified time period for acknowledgment to occur; and
(C) Is a final order for purposes of judicial review of the
comprehensive plan, land use regulations or both the
comprehensive plan and land use regulations as to the parts found
consistent or in compliance with the goals.
(b) 'Denial' means a commission order that:
(A) Certifies that a comprehensive plan, land use regulations
or both a comprehensive plan and land use regulations do not
comply with one or more goals;
(B) Specifies amendments or other action that must be completed
for acknowledgment to occur; and
(C) Is used when the amendments or other changes required in
the comprehensive plan, land use regulations or both the
comprehensive plan and land use regulations affect many goals and
are likely to take a substantial period of time to complete.
SECTION 957. ORS 197.253 is amended to read:
197.253. Notwithstanding the provisions of ORS 197.251 (2)(a),
a person may not submit written comments and objections to the
acknowledgment request of any city or county that submits its
plan or regulations to the { - Land Conservation and
Development Commission - } { + Oregon Natural Resources
Commission + } for acknowledgment for the first time after August
9, 1983, unless the person participated either orally or in
writing in the local government proceedings leading to the
adoption of the plan and regulations.
SECTION 958. ORS 197.254 is amended to read:
197.254. (1) A state agency shall be barred after the date set
for submission of programs by the { - Land Conservation and
Development Commission - } { + Oregon Natural Resources
Commission + } as provided in ORS 197.180 (4), from contesting a
request for acknowledgment submitted by a local government under
ORS 197.251 or from filing an appeal under ORS 197.620 (1) or
(2), if the commission finds that:
(a) The state agency has not complied with ORS 197.180; or
(b) The state agency has not coordinated its plans, programs or
rules affecting land use with the comprehensive plan or land use
regulations of the city or county pursuant to a coordination
program approved by the commission under ORS 197.180.
(2) A state agency shall be barred from seeking a commission
order under ORS 197.644 requiring amendment of a local government
comprehensive plan or land use regulation in order to comply with
the agency's plan or program unless the agency has first
requested the amendment from the local government and has had its
request denied.
(3) A special district shall be barred from contesting a
request for initial compliance acknowledgment submitted by a
local government under ORS 197.251 or from filing an appeal under
ORS 197.620 (1) or (2), if the county or Metropolitan Service
District assigned coordinative functions under ORS 195.025 (1)
finds that:
(a) The special district has not entered into a cooperative
agreement under ORS 195.020; or
(b) The special district has not coordinated its plans,
programs or regulations affecting land use with the comprehensive
plan or land use regulations of the local government pursuant to
its cooperative agreement made under ORS 195.020.
(4) A special district shall be barred from seeking a
commission order under ORS 197.644 requiring amendment of a local
government comprehensive plan or land use regulation in order to
comply with the special district's plan or program unless the
special district has first requested the amendment from the local
government and has had its request denied.
SECTION 959. ORS 197.265 is amended to read:
197.265. (1) As used in this section, 'action' includes but is
not limited to a proceeding under ORS 197.830 to 197.845.
(2) If any action is brought against a local government
challenging any comprehensive plan, land use regulation or other
action of the local government which was adopted or taken for the
primary purpose of complying with the goals approved under ORS
197.240 and which does in fact comply with the goals, then the
{ - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + } shall pay reasonable
attorney fees and court costs incurred by such local government
in the action or suit including any appeal, to the extent funds
have been specifically appropriated to the commission therefor.
SECTION 960. ORS 197.270 is amended to read:
197.270. Within six months following completion of the periodic
review process, the affected local government shall file three
complete and accurate copies of its comprehensive plan and land
use regulations with the { - Department of Land Conservation
and Development - } { + Oregon Department of Natural
Resources + }. This document can be either a new printing or an
up-to-date compilation of the required materials.
SECTION 961. ORS 197.274 is amended to read:
197.274. (1) The Metro regional framework plan, its separate
components and amendments to the regional framework plan or to
its separate components are subject to review:
(a) For compliance with land use planning statutes, statewide
land use planning goals and administrative rules corresponding to
the statutes and goals, in the same manner as a comprehensive
plan for purposes of:
(A) Acknowledgment of compliance with the goals under ORS
197.251; and
(B) Post-acknowledgment procedures under ORS 197.610 to
197.650; and
(b) As a land use decision under ORS 197.805 to 197.855 and
197.860.
(2) With the prior consent of the { - Land Conservation and
Development Commission, Metro may submit to the Department of
Land Conservation and Development - } { + Oregon Natural
Resources Commission, Metro may submit to the Oregon Department
of Natural Resources + } an amendment to the Metro regional
framework plan or to a component of the regional framework plan
in the manner provided for periodic review under ORS 197.628 to
197.650, if the amendment implements a program to meet the
requirements of a land use planning statute, a statewide land use
planning goal or an administrative rule corresponding to a
statute or goal.
SECTION 962. ORS 197.277 is amended to read:
197.277. (1) The goals and rules established in ORS chapters
195, 196 and 197 do not apply to programs, rules, procedures,
decisions, determinations or activities carried out under the
Oregon Forest Practices Act administered under ORS 527.610 to
527.770, 527.990 (1) and 527.992.
(2) No goal or rule shall be adopted, construed or administered
in a manner to require or allow local governments to take any
action prohibited by ORS 527.722.
(3) The { - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + } shall amend goals
and rules as necessary to implement ORS 197.180, 197.277,
197.825, 215.050, 477.090, 477.440, 477.455, 477.460,
{ - 526.009, 526.016, - } 526.156, 527.620, 527.630, 527.660,
527.670, 527.683 to 527.687, 527.715, 527.990 and 527.992.
SECTION 963. ORS 197.283 is amended to read:
197.283. (1) The { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + }
shall take actions
{ - it - } { + the commission + } considers necessary to
{ - assure - } { + ensure + } that city and county
comprehensive plans and land use regulations and state agency
coordination programs are consistent with the goal set forth in
ORS 468B.155.
(2) The commission shall direct the { - Department of Land
Conservation and Development - } { + Oregon Department of
Natural Resources + } to take actions the department considers
appropriate to
{ - assure - } { + ensure + } that any information contained
in a city or county comprehensive plan that pertains to the
ground water resource of Oregon shall be forwarded to the
centralized repository established under ORS 468B.167.
SECTION 964. ORS 197.296 is amended to read:
197.296. (1)(a) The provisions of this section apply to
metropolitan service district regional framework plans and local
government comprehensive plans for lands within the urban growth
boundary of a city that is located outside of a metropolitan
service district and has a population of 25,000 or more.
(b) The { - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + } may establish a set
of factors under which additional cities are subject to the
provisions of this section. In establishing the set of factors
required under this paragraph, the commission shall consider the
size of the city, the rate of population growth of the city or
the proximity of the city to another city with a population of
25,000 or more or to a metropolitan service district.
(2) At periodic review pursuant to ORS 197.628 to 197.650 or at
any other legislative review of the comprehensive plan or
regional plan that concerns the urban growth boundary and
requires the application of a statewide planning goal relating to
buildable lands for residential use, a local government shall
demonstrate that its comprehensive plan or regional plan provides
sufficient buildable lands within the urban growth boundary
established pursuant to statewide planning goals to accommodate
estimated housing needs for 20 years. The 20-year period shall
commence on the date initially scheduled for completion of the
periodic or legislative review.
(3) In performing the duties under subsection (2) of this
section, a local government shall:
(a) Inventory the supply of buildable lands within the urban
growth boundary and determine the housing capacity of the
buildable lands; and
(b) Conduct an analysis of housing need by type and density
range, in accordance with ORS 197.303 and statewide planning
goals and rules relating to housing, to determine the number of
units and amount of land needed for each needed housing type for
the next 20 years.
(4)(a) For the purpose of the inventory described in subsection
(3)(a) of this section, 'buildable lands' includes:
(A) Vacant lands planned or zoned for residential use;
(B) Partially vacant lands planned or zoned for residential
use;
(C) Lands that may be used for a mix of residential and
employment uses under the existing planning or zoning; and
(D) Lands that may be used for residential infill or
redevelopment.
(b) For the purpose of the inventory and determination of
housing capacity described in subsection (3)(a) of this section,
the local government must demonstrate consideration of:
(A) The extent that residential development is prohibited or
restricted by local regulation and ordinance, state law and rule
or federal statute and regulation;
(B) A written long term contract or easement for radio,
telecommunications or electrical facilities, if the written
contract or easement is provided to the local government; and
(C) The presence of a single family dwelling or other structure
on a lot or parcel.
(c) Except for land that may be used for residential infill or
redevelopment, a local government shall create a map or document
that may be used to verify and identify specific lots or parcels
that have been determined to be buildable lands.
(5)(a) Except as provided in paragraphs (b) and (c) of this
subsection, the determination of housing capacity and need
pursuant to subsection (3) of this section must be based on data
relating to land within the urban growth boundary that has been
collected since the last periodic review or five years, whichever
is greater. The data shall include:
(A) The number, density and average mix of housing types of
urban residential development that have actually occurred;
(B) Trends in density and average mix of housing types of urban
residential development;
(C) Demographic and population trends;
(D) Economic trends and cycles; and
(E) The number, density and average mix of housing types that
have occurred on the buildable lands described in subsection
(4)(a) of this section.
(b) A local government shall make the determination described
in paragraph (a) of this subsection using a shorter time period
than the time period described in paragraph (a) of this
subsection if the local government finds that the shorter time
period will provide more accurate and reliable data related to
housing capacity and need. The shorter time period may not be
less than three years.
(c) A local government shall use data from a wider geographic
area or use a time period for economic cycles and trends longer
than the time period described in paragraph (a) of this
subsection if the analysis of a wider geographic area or the use
of a longer time period will provide more accurate, complete and
reliable data relating to trends affecting housing need than an
analysis performed pursuant to paragraph (a) of this subsection.
The local government must clearly describe the geographic area,
time frame and source of data used in a determination performed
under this paragraph.
(6) If the housing need determined pursuant to subsection
(3)(b) of this section is greater than the housing capacity
determined pursuant to subsection (3)(a) of this section, the
local government shall take one or more of the following actions
to accommodate the additional housing need:
(a) Amend its urban growth boundary to include sufficient
buildable lands to accommodate housing needs for the next 20
years. As part of this process, the local government shall
consider the effects of measures taken pursuant to paragraph (b)
of this subsection. The amendment shall include sufficient land
reasonably necessary to accommodate the siting of new public
school facilities. The need and inclusion of lands for new public
school facilities shall be a coordinated process between the
affected public school districts and the local government that
has the authority to approve the urban growth boundary;
(b) Amend its comprehensive plan, regional plan, functional
plan or land use regulations to include new measures that
demonstrably increase the likelihood that residential development
will occur at densities sufficient to accommodate housing needs
for the next 20 years without expansion of the urban growth
boundary. A local government or metropolitan service district
that takes this action shall monitor and record the level of
development activity and development density by housing type
following the date of the adoption of the new measures; or
(c) Adopt a combination of the actions described in paragraphs
(a) and (b) of this subsection.
(7) Using the analysis conducted under subsection (3)(b) of
this section, the local government shall determine the overall
average density and overall mix of housing types at which
residential development of needed housing types must occur in
order to meet housing needs over the next 20 years. If that
density is greater than the actual density of development
determined under subsection (5)(a)(A) of this section, or if that
mix is different from the actual mix of housing types determined
under subsection (5)(a)(A) of this section, the local government,
as part of its periodic review, shall adopt measures that
demonstrably increase the likelihood that residential development
will occur at the housing types and density and at the mix of
housing types required to meet housing needs over the next 20
years.
(8)(a) A local government outside a metropolitan service
district that takes any actions under subsection (6) or (7) of
this section shall demonstrate that the comprehensive plan and
land use regulations comply with goals and rules adopted by the
commission and implement ORS 197.295 to 197.314.
(b) The local government shall determine the density and mix of
housing types anticipated as a result of actions taken under
subsections (6) and (7) of this section and monitor and record
the actual density and mix of housing types achieved. The local
government shall compare actual and anticipated density and mix.
The local government shall submit its comparison to the
commission at the next periodic review or at the next legislative
review of its urban growth boundary, whichever comes first.
(9) In establishing that actions and measures adopted under
subsections (6) or (7) of this section demonstrably increase the
likelihood of higher density residential development, the local
government shall at a minimum ensure that land zoned for needed
housing is in locations appropriate for the housing types
identified under subsection (3) of this section and is zoned at
density ranges that are likely to be achieved by the housing
market using the analysis in subsection (3) of this section.
Actions or measures, or both, may include but are not limited to:
(a) Increases in the permitted density on existing residential
land;
(b) Financial incentives for higher density housing;
(c) Provisions permitting additional density beyond that
generally allowed in the zoning district in exchange for
amenities and features provided by the developer;
(d) Removal or easing of approval standards or procedures;
(e) Minimum density ranges;
(f) Redevelopment and infill strategies;
(g) Authorization of housing types not previously allowed by
the plan or regulations;
(h) Adoption of an average residential density standard; and
(i) Rezoning or redesignation of nonresidential land.
SECTION 965. ORS 197.299 is amended to read:
197.299. (1) A metropolitan service district organized under
ORS chapter 268 shall complete the inventory, determination and
analysis required under ORS 197.296 (3) not later than five years
after completion of the previous inventory, determination and
analysis.
(2)(a) The metropolitan service district shall take such action
as necessary under ORS 197.296 (6)(a) to accommodate one-half of
a 20-year buildable land supply determined under ORS 197.296 (3)
within one year of completing the analysis.
(b) The metropolitan service district shall take all final
action under ORS 197.296 (6)(a) necessary to accommodate a
20-year buildable land supply determined under ORS 197.296 (3)
within two years of completing the analysis.
(c) The metropolitan service district shall take action under
ORS 197.296 (6)(b), within one year after the analysis required
under ORS 197.296 (3)(b) is completed, to provide sufficient
buildable land within the urban growth boundary to accommodate
the estimated housing needs for 20 years from the time the
actions are completed. The metropolitan service district shall
consider and adopt new measures that the governing body deems
appropriate under ORS 197.296 (6)(b).
(3) The { - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + } may grant an
extension to the time limits of subsection (2) of this section if
the Director of the
{ - Department of Land Conservation and Development - }
{ + Oregon Department of Natural Resources + } determines that
the metropolitan service district has provided good cause for
failing to meet the time limits.
(4)(a) The metropolitan service district shall establish a
process to expand the urban growth boundary to accommodate a need
for land for a public school that cannot reasonably be
accommodated within the existing urban growth boundary. The
metropolitan service district shall design the process to:
(A) Accommodate a need that must be accommodated between
periodic analyses of urban growth boundary capacity required by
subsection (1) of this section; and
(B) Provide for a final decision on a proposal to expand the
urban growth boundary within four months after submission of a
complete application by a large school district as defined in ORS
195.110.
(b) At the request of a large school district, the metropolitan
service district shall assist the large school district to
identify school sites required by the school facility planning
process described in ORS 195.110. A need for a public school is a
specific type of identified land need under ORS 197.298 (3).
SECTION 966. ORS 197.301 is amended to read:
197.301. (1) A metropolitan service district organized under
ORS chapter 268 shall compile and report to the { - Department
of Land Conservation and Development - } { + Oregon Department
of Natural Resources + } on performance measures as described in
this section at least once every two years. The information shall
be reported in a manner prescribed by the department.
(2) Performance measures subject to subsection (1) of this
section shall be adopted by a metropolitan service district and
shall include but are not limited to measures that analyze the
following:
(a) The rate of conversion of vacant land to improved land;
(b) The density and price ranges of residential development,
including both single family and multifamily residential units;
(c) The level of job creation within individual cities and the
urban areas of a county inside the metropolitan service district;
(d) The number of residential units added to small sites
assumed to be developed in the metropolitan service district's
inventory of available lands but which can be further developed,
and the conversion of existing spaces into more compact units
with or without the demolition of existing buildings;
(e) The amount of environmentally sensitive land that is
protected and the amount of environmentally sensitive land that
is developed;
(f) The sales price of vacant land;
(g) Residential vacancy rates;
(h) Public access to open spaces; and
(i) Transportation measures including mobility, accessibility
and air quality indicators.
SECTION 967. ORS 197.302 is amended to read:
197.302. (1) After gathering and compiling information on the
performance measures as described in ORS 197.301 but prior to
submitting the information to the { - Department of Land
Conservation and Development, - } { + Oregon Department of
Natural Resources, + } a metropolitan service district shall
determine if actions taken under ORS 197.296 (6) have established
the buildable land supply and housing densities necessary to
accommodate estimated housing needs determined under ORS 197.296
(3). If the metropolitan service district determines that the
actions undertaken will not accommodate estimated need, the
district shall develop a corrective action plan, including a
schedule for implementation. The district shall submit the plan
to the department along with the report on performance measures
required under ORS 197.301. Corrective action under this section
may include amendment of the urban growth boundary, comprehensive
plan, regional framework plan, functional plan or land use
regulations as described in ORS 197.296.
(2) Within two years of submitting a corrective action plan to
the department, the metropolitan service district shall
demonstrate by reference to the performance measures described in
ORS 197.301 that implementation of the plan has resulted in the
buildable land supply and housing density within the urban growth
boundary necessary to accommodate the estimated housing needs for
each housing type as determined under ORS 197.296 (3).
(3) The failure of the metropolitan service district to
demonstrate the buildable land supply and housing density
necessary to accommodate housing needs as required under this
section and ORS 197.296 may be the basis for initiation of
enforcement action pursuant to ORS 197.319 to 197.335.
SECTION 968. ORS 197.319 is amended to read:
197.319. (1) Before a person may request adoption of an
enforcement order under ORS 197.320, the person shall:
(a) Present the reasons, in writing, for such an order to the
affected local government; and
(b) Request:
(A) Revisions to the local comprehensive plan, land use
regulations, special district cooperative or urban service
agreement or decision-making process which is the basis for the
order; or
(B) That an action be taken regarding the local comprehensive
plan, land use regulations, special district agreement or
decision-making process that is the basis for the order.
(2)(a) The local government or special district shall issue a
written response to the request within 60 days of the date the
request is mailed to the local government or special district.
(b) The requestor and the local government or special district
may enter into mediation to resolve issues in the request. The
{ - Department of Land Conservation and Development - } { +
Oregon Department of Natural Resources + } shall provide
mediation services when jointly requested by the local government
or special district and the requestor.
(c) If the local government or special district does not act in
a manner which the requestor believes is adequate to address the
issues raised in the request within the time period provided in
paragraph (a) of this subsection, a petition may be presented to
the { - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + } under ORS 197.324.
(3) A metropolitan service district may request an enforcement
order under ORS 197.320 (12) without first complying with
subsections (1) and (2) of this section.
SECTION 969. ORS 197.320 is amended to read:
197.320. The { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + }
shall issue an order requiring a local government, state agency
or special district to take action necessary to bring its
comprehensive plan, land use regulation, limited land use
decisions or other land use decisions into compliance with the
goals, acknowledged comprehensive plan provisions or land use
regulations if the commission has good cause to believe:
(1) A comprehensive plan or land use regulation adopted by a
local government not on a compliance schedule is not in
compliance with the goals by the date set in ORS 197.245 or
197.250 for such compliance;
(2) A plan, program, rule or regulation affecting land use
adopted by a state agency or special district is not in
compliance with the goals by the date set in ORS 197.245 or
197.250 for such compliance;
(3) A local government is not making satisfactory progress
toward performance of its compliance schedule;
(4) A state agency is not making satisfactory progress in
carrying out its coordination agreement or the requirements of
ORS 197.180;
(5) A local government has no comprehensive plan or land use
regulation and is not on a compliance schedule directed to
developing the plan or regulation;
(6) A local government has engaged in a pattern or practice of
decision making that violates an acknowledged comprehensive plan
or land use regulation. In making its determination under this
subsection, the commission shall determine whether there is
evidence in the record to support the decisions made. The
commission shall not judge the issue solely upon adequacy of the
findings in support of the decisions;
(7) A local government has failed to comply with a commission
order entered under ORS 197.644;
(8) A special district has engaged in a pattern or practice of
decision-making that violates an acknowledged comprehensive plan
or cooperative agreement adopted pursuant to ORS 197.020;
(9) A special district is not making satisfactory progress
toward performance of its obligations under ORS chapters 195 and
197;
(10) A local government is applying approval standards, special
conditions on approval of specific development proposals or
procedures for approval that do not comply with ORS 197.307 (6);
or
(11) A local government is not making satisfactory progress
toward meeting its obligations under ORS 195.065.
(12) A local government within the jurisdiction of a
metropolitan service district has failed to make changes to the
comprehensive plan or land use regulations to comply with the
regional framework plan of the district or has engaged in a
pattern or practice of decision-making that violates a
requirement of the regional framework plan.
SECTION 970. ORS 197.324 is amended to read:
197.324. (1) On its own motion, the { - Land Conservation and
Development Commission - } { + Oregon Natural Resources
Commission + } may initiate a proceeding to carry out the
provisions of ORS 197.320. If the commission proceeds on its own
motion, it shall proceed as set forth in ORS 197.328.
(2)(a) After a person meets the requirements of ORS 197.319,
the person may file a petition to request that the commission
consider the matter. Filing occurs upon mailing the petition to
the { - Department of Land Conservation and Development - }
{ + Oregon Department of Natural Resources + }.
(b) The commission shall determine if there is good cause to
proceed on the petition.
(c) If the commission determines that there is not good cause
to proceed on the petition, the commission shall issue a final
order dismissing the petition, stating the reasons therefor.
(d) If the commission determines that there is good cause to
proceed on the petition, the commission shall proceed as set
forth in ORS 197.328.
(3) Following initiation of a proceeding under subsection (1)
of this section or a determination by the commission that there
is good cause to proceed on a petition under subsection (2) of
this section, the affected local government shall include the
following disclosure in any subsequent notice of a land use
decision that could be affected by the enforcement order:
_________________________________________________________________
NOTICE: THE { - OREGON LAND CONSERVATION AND DEVELOPMENT
COMMISSION - } { + OREGON NATURAL RESOURCES COMMISSION + } HAS
FOUND GOOD CAUSE FOR AN ENFORCEMENT PROCEEDING AGAINST _____
(Name of local government). AN ENFORCEMENT ORDER MAY BE
EVENTUALLY ADOPTED THAT COULD LIMIT, PROHIBIT OR REQUIRE
APPLICATION OF SPECIFIED CRITERIA TO ANY ACTION AUTHORIZED BY
THIS DECISION BUT NOT APPLIED FOR UNTIL AFTER ADOPTION OF THE
ENFORCEMENT ORDER. FUTURE APPLICATIONS FOR BUILDING PERMITS OR
ANY TIME EXTENSIONS MAY BE AFFECTED.
_________________________________________________________________
SECTION 971. ORS 197.328 is amended to read:
197.328. If a proceeding is initiated under ORS 197.324, the
following procedures apply:
(1) The { - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + } shall hold a hearing
to consider the petition or shall appoint a hearings officer to
consider the petition under the provisions of ORS chapter 183
applicable to contested cases, except as otherwise provided in
this section.
(2) The commission or hearings officer shall schedule a hearing
within 45 days of receipt of the petition.
(3) If the commission appoints a hearings officer, the hearings
officer shall prepare a proposed order, including recommended
findings and conclusions of law. The proposed order shall be
served on the { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + }
and all parties to the hearing within 30 days of the date the
record closed.
(4) If the commission appoints a hearings officer, the
commission review of the proposed order shall be limited to the
record of proceedings before the hearings officer. In its review
of a proposed order, the commission shall not receive new
evidence but shall hear arguments as to the proposed order and
any exceptions. Any exception to the proposed order shall be
filed with the commission no later than 15 days following
issuance of the proposed order.
(5) The commission shall adopt a final order relative to a
petition no later than 120 days from the date the petition was
filed.
SECTION 972. ORS 197.335 is amended to read:
197.335. (1) An order issued under ORS 197.328 and the copy of
the order mailed to the local government, state agency or special
district shall set forth:
(a) The nature of the noncompliance, including, but not limited
to, the contents of the comprehensive plan or land use
regulation, if any, of a local government that do not comply with
the goals or the contents of a plan, program or regulation
affecting land use adopted by a state agency or special district
that do not comply with the goals. In the case of a pattern or
practice of decision-making which violates the goals,
comprehensive plan or land use regulations, the order shall
specify the decision-making which constitutes the pattern or
practice, including specific provisions the { - Land
Conservation and Development Commission - } { + Oregon Natural
Resources Commission + } believes are being misapplied;
(b) The specific lands, if any, within a local government for
which the existing plan or land use regulation, if any, does not
comply with the goals; and
(c) The corrective action decided upon by the commission,
including the specific requirements, with which the local
government, state agency or special district must comply. In the
case of a pattern or practice of decision-making that violates an
acknowledged comprehensive plan or land use regulation, the
commission may require revisions to the comprehensive plan, land
use regulations or local procedures which the commission believes
are necessary to correct the pattern or practice. Notwithstanding
the provisions of this section, except as provided in subsection
(3)(c) of this section, an enforcement order does not affect:
(A) Land use applications filed with a local government prior
to the date of adoption of the enforcement order unless
specifically identified by the order;
(B) Land use approvals issued by a local government prior to
the date of adoption of the enforcement order; or
(C) The time limit for exercising land use approvals issued by
a local government prior to the date of adoption of the
enforcement order.
(2) Judicial review of a final order of the commission shall be
governed by the provisions of ORS chapter 183 applicable to
contested cases except as otherwise stated in this section. The
commission's final order shall include a clear statement of
findings which set forth the basis for the order. Where a
petition to review the order has been filed in the Court of
Appeals, the commission shall transmit to the court the entire
administrative record of the proceeding under review.
Notwithstanding ORS 183.482 (3) relating to a stay of enforcement
of an agency order, an appellate court, before it may stay an
order of the commission, shall give due consideration to the
public interest in the continued enforcement of the commission's
order and may consider testimony or affidavits thereon. Upon
review, an appellate court may affirm, reverse, modify or remand
the order. The court shall reverse, modify or remand the order
only if it finds:
(a) The order to be unlawful in substance or procedure, but
error in procedure shall not be cause for reversal, modification
or remand unless the court shall find that substantial rights of
any party were prejudiced thereby;
(b) The order to be unconstitutional;
(c) The order is invalid because it exceeds the statutory
authority of the agency; or
(d) The order is not supported by substantial evidence in the
whole record.
(3)(a) If the commission finds that in the interim period
during which a local government, state agency or special district
would be bringing itself into compliance with the commission's
order under ORS 197.320 or subsection (2) of this section it
would be contrary to the public interest in the conservation or
sound development of land to allow the continuation of some or
all categories of land use decisions or limited land use
decisions, it shall, as part of its order, limit, prohibit or
require the approval by the local government of applications for
subdivisions, partitions, building permits, limited land use
decisions or land use decisions until the plan, land use
regulation or subsequent land use decisions and limited land use
decisions are brought into compliance. The commission may issue
an order that requires review of local decisions by a hearings
officer or the { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + }
before the local decision becomes final.
(b) Any requirement under this subsection may be imposed only
if the commission finds that the activity, if continued,
aggravates the goal, comprehensive plan or land use regulation
violation and that the requirement is necessary to correct the
violation.
(c) The limitations on enforcement orders under subsection
(1)(c)(B) of this section shall not be interpreted to affect the
commission's authority to limit, prohibit or require application
of specified criteria to subsequent land use decisions involving
land use approvals issued by a local government prior to the date
of adoption of the enforcement order.
(4) As part of its order under ORS 197.320 or subsection (2) of
this section, the commission may withhold grant funds from the
local government to which the order is directed. As part of an
order issued under this section, the commission may notify the
officer responsible for disbursing state-shared revenues to
withhold that portion of state-shared revenues to which the local
government is entitled under ORS 221.770, 323.455, 366.762 and
366.800 and ORS chapter 471 which represents the amount of state
planning grant moneys previously provided the local government by
the commission. The officer responsible for disbursing
state-shared revenues shall withhold state-shared revenues as
outlined in this section and shall release funds to the local
government or department when notified to so do by the commission
or its designee. The commission may retain a portion of the
withheld revenues to cover costs of providing services incurred
under the order, including use of a hearings officer or staff
resources to monitor land use decisions and limited land use
decisions or conduct hearings. The remainder of the funds
withheld under this provision shall be released to the local
government upon completion of requirements of the commission
order.
(5)(a) As part of its order under this section, the commission
may notify the officer responsible for disbursing funds from any
grant or loan made by a state agency to withhold such funds from
a special district to which the order is directed. The officer
responsible for disbursing funds shall withhold funds as outlined
in this section and shall release funds to the special district
or department when notified to do so by the commission.
(b) The commission may retain a portion of the funds withheld
to cover costs of providing services incurred under the order,
including use of a hearings officer or staff resources to monitor
land use decisions and limited land use decisions or conduct
hearings. The remainder of the funds withheld under this
provision shall be released to the special district upon
completion of the requirements of the commission order.
(6) The commission may institute actions or proceedings for
legal or equitable remedies in the Circuit Court for Marion
County or in the circuit court for the county to which the
commission's order is directed or within which all or a portion
of the applicable city is located to enforce compliance with the
provisions of any order issued under this section or to restrain
violations thereof. Such actions or proceedings may be instituted
without the necessity of prior agency notice, hearing and order
on an alleged violation.
SECTION 972a. ORS 197.340 is amended to read:
197.340. (1) { - The Land Conservation and Development
Commission, the Department of Land Conservation and
Development - } { + The Oregon Natural Resources Commission,
the Oregon Department of Natural Resources + }, other state
agencies and local governments shall give the goals equal weight
in any matter in which the goals are required to be applied.
(2) The commission and the department shall consider and
recognize regional diversity and differences in regional needs
when making or reviewing a land use decision or otherwise
applying the goals.
SECTION 972b. ORS 197.350 is amended to read:
197.350. (1) A party appealing a land use decision or limited
land use decision made by a local government to the { - board
or Land Conservation and Development Commission - } { + Oregon
Department of Natural Resources or the Oregon Natural Resources
Commission + } has the burden of persuasion.
(2) A local government that claims an exception to a goal
adopted by the commission has the burden of persuasion.
(3) There shall be no burden of proof in administrative
proceedings under ORS chapters 195, 196 and 197.
SECTION 973. ORS 197.390 is amended to read:
197.390. (1) The { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + }
shall study and compile a list of all activities affecting land
use planning which occur on federal land and which the state may
regulate or control in any degree.
(2) No activity listed by the commission pursuant to subsection
(1) of this section which the state may regulate or control which
occurs upon federal land shall be undertaken without a permit
issued under ORS 197.395.
(3) Any person or agency acting in violation of subsection (2)
of this section may be enjoined in civil proceedings brought in
the name of the State of Oregon.
SECTION 974. ORS 197.395 is amended to read:
197.395. (1) Any person or public agency desiring to initiate
an activity which the state may regulate or control and which
occurs upon federal land shall apply to the local government in
which the activity will take place for a permit. The application
shall contain an explanation of the activity to be initiated, the
plans for the activity and any other information required by the
local government as prescribed by rule of the { - Land
Conservation and Development Commission - } { + Oregon Natural
Resources Commission + }.
(2) If the local government finds after review of the
application that the proposed activity complies with goals and
the comprehensive plans of the local government affected by the
activity, it shall approve the application and issue a permit for
the activity to the person or public agency applying for the
permit. If the governing body does not approve or disapprove the
permit within 60 days of receipt of the application, the
application shall be considered approved.
(3) The local government may prescribe and include in the
permit any conditions or restrictions that it considers necessary
to assure that the activity complies with the goals and the
comprehensive plans of the local governments affected by the
activity.
(4) Actions pursuant to this section are subject to review
under ORS 197.830 to 197.845.
SECTION 975. ORS 197.405 is amended to read:
197.405. (1) The { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + } may
recommend to appropriate legislative committees the designation
of areas of critical state concern. Each such recommendation:
(a) Shall specify the reasons for the implementation of
additional state regulations for the described geographic area;
(b) Shall include a brief summary of the existing programs and
regulations of state and local agencies applicable to the area;
(c) May include a management plan for the area indicating the
programs and regulations of state and local agencies, if any,
unaffected by the proposed state regulations for the area;
(d) May establish permissible use limitations for all or part
of the area;
(e) Shall locate a boundary describing the area; and
(f) May designate permissible use standards for all or part of
the lands within the area or establish standards for issuance or
denial of designated state or local permits regulating specified
uses of lands in the area, or both.
(2) The commission may act under subsection (1) of this section
on its own motion or upon the recommendation of a state agency or
a local government. If the commission receives a recommendation
from a state agency or a local government and finds the proposed
area to be unsuitable for designation, it shall notify the state
agency or the local government of its decision and its reasons
for that decision.
(3) Immediately following its decision to favorably recommend
to the Legislative Assembly the designation of an area of
critical state concern, the commission shall submit the proposed
designation accompanied by the supporting materials described in
subsection (1) of this section to the appropriate legislative
committees for review.
(4) No proposed designation under subsection (1) of this
section shall take effect unless it has first been submitted to
appropriate legislative committees under subsection (3) of this
section and has been approved by the Legislative Assembly. The
Legislative Assembly may adopt, amend or reject the proposed
designation.
SECTION 976. ORS 197.416 is amended to read:
197.416. (1) As used in this section, 'Metolius Area of
Critical State Concern' means the areas identified as Area 1 and
Area 2 in the management plan recommended by the { - Land
Conservation and Development Commission - } { + Oregon Natural
Resources Commission + }.
(2) Pursuant to ORS 197.405 (4), the Legislative Assembly
hereby approves the recommendation of the commission, submitted
to the Legislative Assembly on April 2, 2009, that the Metolius
Area of Critical State Concern be designated an area of critical
state concern.
(3) The Legislative Assembly approves the management plan
included in the commission's recommendation pursuant to ORS
197.405 (1)(c) and directs the commission to adopt the management
plan, by rule, without change except that:
(a) The management plan must require:
(A) The commission to give notice of proposed amendments to the
management plan to the governing bodies of Jefferson County and
of the Confederated Tribes of the Warm Springs Indian
Reservation; and
(B) If either governing body files a written objection to the
proposed amendments, the commission to adopt the proposed
amendments only if the commission finds by clear and convincing
evidence that the proposed amendments meet the requirements of
subsection (5) of this section.
(b) The management plan must limit development of a small-scale
recreation community within township 13 south, range 10 east,
sections 20, 21, 28 and 29 in Jefferson County so that all units
must be sited within up to 25 clusters that may be connected only
by a road system. The commission may not enforce, and shall
modify, a contrary provision in the management plan.
(c) Descriptions in the management plan of annual average water
use must refer to annual average consumptive water use. The
commission may not enforce, and shall modify, a contrary
provision in the management plan.
(4) Except as otherwise provided in this section, the
commission may amend the management plan only as provided in the
management plan and only pursuant to applicable rulemaking
procedures.
(5) In addition to limitations on development that are
contained in the management plan, new development allowed by
amendment of the management plan, except development allowed by
the administrative amendments required by subsection (3) of this
section, may not result in:
(a) Negative impact on the Metolius River, its springs or its
tributaries;
(b) Negative impact on fish resources in the Metolius Area of
Critical State Concern; or
(c) Negative impact on the wildlife resources in the Metolius
Area of Critical State Concern.
(6) A county may not approve siting a destination resort in the
Metolius Area of Critical State Concern.
SECTION 977. ORS 197.430 is amended to read:
197.430. If the county governing body or the { - Land
Conservation and Development Commission - } { + Oregon Natural
Resources Commission + } determines the existence of an alleged
violation under ORS 197.410, it may:
(1) Investigate, hold hearings, enter orders and take action
that it deems appropriate under ORS chapters 195, 196 and 197, as
soon as possible.
(2) For the purpose of investigating conditions relating to the
violation, through its members or its duly authorized
representatives, enter at reasonable times upon any private or
public property.
(3) Conduct public hearings.
(4) Publish its findings and recommendations as they are
formulated relative to the violation.
(5) Give notice of any order relating to a particular violation
of the state regulations for the area involved or a particular
violation of ORS chapters 195, 196 and 197 by mailing notice to
the person or public body conducting or proposing to conduct the
project affected in the manner provided by ORS chapter 183.
SECTION 978. ORS 197.445 is amended to read:
197.445. A destination resort is a self-contained development
that provides for visitor-oriented accommodations and developed
recreational facilities in a setting with high natural amenities.
To qualify as a destination resort under ORS 30.947, 197.435 to
197.467, 215.213, 215.283 and 215.284, a proposed development
must meet the following standards:
(1) The resort must be located on a site of 160 acres or more
except within two miles of the ocean shoreline where the site
shall be 40 acres or more.
(2) At least 50 percent of the site must be dedicated to
permanent open space, excluding streets and parking areas.
(3) At least $7 million must be spent on improvements for
on-site developed recreational facilities and visitor-oriented
accommodations exclusive of costs for land, sewer and water
facilities and roads. Not less than one-third of this amount must
be spent on developed recreational facilities.
(4) Visitor-oriented accommodations including meeting rooms,
restaurants with seating for 100 persons and 150 separate
rentable units for overnight lodging shall be provided. However,
the rentable overnight lodging units may be phased in as follows:
(a) On lands not described in paragraph (b) of this subsection:
(A) A total of 150 units of overnight lodging must be provided.
(B) At least 75 units of overnight lodging, not including any
individually owned homes, lots or units, must be constructed or
guaranteed through surety bonding or equivalent financial
assurance prior to the closure of sale of individual lots or
units.
(C) The remaining overnight lodging units must be provided as
individually owned lots or units subject to deed restrictions
that limit their use to use as overnight lodging units. The deed
restrictions may be rescinded when the resort has constructed 150
units of permanent overnight lodging as required by this
subsection.
(D) The number of units approved for residential sale may not
be more than two units for each unit of permanent overnight
lodging provided under this paragraph.
(E) The development approval must provide for the construction
of other required overnight lodging units within five years of
the initial lot sales.
(b) On lands in eastern Oregon, as defined in ORS 321.805:
(A) A total of 150 units of overnight lodging must be provided.
(B) At least 50 units of overnight lodging must be constructed
prior to the closure of sale of individual lots or units.
(C) At least 50 of the remaining 100 required overnight lodging
units must be constructed or guaranteed through surety bonding or
equivalent financial assurance within five years of the initial
lot sales.
(D) The remaining required overnight lodging units must be
constructed or guaranteed through surety bonding or equivalent
financial assurances within 10 years of the initial lot sales.
(E) The number of units approved for residential sale may not
be more than 2-1/2 units for each unit of permanent overnight
lodging provided under this paragraph.
(F) If the developer of a resort guarantees the overnight
lodging units required under subparagraphs (C) and (D) of this
paragraph through surety bonding or other equivalent financial
assurance, the overnight lodging units must be constructed within
four years of the date of execution of the surety bond or other
equivalent financial assurance.
(5) Commercial uses allowed are limited to types and levels of
use necessary to meet the needs of visitors to the development.
Industrial uses of any kind are not permitted.
(6) In lieu of the standards in subsections (1), (3) and (4) of
this section, the standards set forth in subsection (7) of this
section apply to a destination resort:
(a) On land that is not defined as agricultural or forest land
under any statewide planning goal;
(b) On land where there has been an exception to any statewide
planning goal on agricultural lands, forestlands, public
facilities and services and urbanization; or
(c) On such secondary lands as the { - Land Conservation and
Development Commission - } { + Oregon Natural Resources
Commission + } deems appropriate.
(7) The following standards apply to the provisions of
subsection (6) of this section:
(a) The resort must be located on a site of 20 acres or more.
(b) At least $2 million must be spent on improvements for
on-site developed recreational facilities and visitor-oriented
accommodations exclusive of costs for land, sewer and water
facilities and roads. Not less than one-third of this amount must
be spent on developed recreational facilities.
(c) At least 25 units, but not more than 75 units, of overnight
lodging must be provided.
(d) Restaurant and meeting room with at least one seat for each
unit of overnight lodging must be provided.
(e) Residential uses must be limited to those necessary for the
staff and management of the resort.
(f) The governing body of the county or its designee has
reviewed the resort proposed under this subsection and has
determined that the primary purpose of the resort is to provide
lodging and other services oriented to a recreational resource
which can only reasonably be enjoyed in a rural area. Such
recreational resources include, but are not limited to, a hot
spring, a ski slope or a fishing stream.
(g) The resort must be constructed and located so that it is
not designed to attract highway traffic. Resorts may not use any
manner of outdoor advertising signing except:
(A) Tourist oriented directional signs as provided in ORS
377.715 to 377.830; and
(B) On-site identification and directional signs.
(8) Spending required under subsections (3) and (7) of this
section is stated in 1993 dollars. The spending required shall be
adjusted to the year in which calculations are made in accordance
with the United States Consumer Price Index.
(9) When making a land use decision authorizing construction of
a destination resort in eastern Oregon, as defined in ORS
321.805, the governing body of the county or its designee shall
require the resort developer to provide an annual accounting to
document compliance with the overnight lodging standards of this
section. The annual accounting requirement commences one year
after the initial lot or unit sales. The annual accounting must
contain:
(a) Documentation showing that the resort contains a minimum of
150 permanent units of overnight lodging or, during the phase-in
period, documentation showing the resort is not yet required to
have constructed 150 units of overnight lodging.
(b) Documentation showing that the resort meets the lodging
ratio described in subsection (4) of this section.
(c) For a resort counting individually owned units as qualified
overnight lodging units, the number of weeks that each overnight
lodging unit is available for rental to the general public as
described in ORS 197.435.
SECTION 979. ORS 197.520 is amended to read:
197.520. (1) No city, county or special district may adopt a
moratorium on construction or land development unless it first:
(a) Provides written notice to the { - Department of Land
Conservation and Development - } { + Oregon Department of
Natural Resources + } at least 45 days prior to the final public
hearing to be held to consider the adoption of the moratorium;
(b) Makes written findings justifying the need for the
moratorium in the manner provided for in this section; and
(c) Holds a public hearing on the adoption of the moratorium
and the findings which support the moratorium.
(2) For urban or urbanizable land, a moratorium may be
justified by demonstration of a need to prevent a shortage of
public facilities which would otherwise occur during the
effective period of the moratorium. Such a demonstration shall be
based upon reasonably available information, and shall include,
but need not be limited to, findings:
(a) Showing the extent of need beyond the estimated capacity of
existing public facilities expected to result from new land
development, including identification of any public facilities
currently operating beyond capacity, and the portion of such
capacity already committed to development;
(b) That the moratorium is reasonably limited to those areas of
the city, county or special district where a shortage of key
public facilities would otherwise occur; and
(c) That the housing and economic development needs of the area
affected have been accommodated as much as possible in any
program for allocating any remaining public facility capacity.
(3) A moratorium not based on a shortage of public facilities
under subsection (2) of this section may be justified only by a
demonstration of compelling need. Such a demonstration shall be
based upon reasonably available information and shall include,
but need not be limited to, findings:
(a) For urban or urbanizable land:
(A) That application of existing development ordinances or
regulations and other applicable law is inadequate to prevent
irrevocable public harm from development in affected geographical
areas;
(B) That the moratorium is sufficiently limited to ensure that
a needed supply of affected housing types and the supply of
commercial and industrial facilities within or in proximity to
the city, county or special district are not unreasonably
restricted by the adoption of the moratorium;
(C) Stating the reasons alternative methods of achieving the
objectives of the moratorium are unsatisfactory;
(D) That the city, county or special district has determined
that the public harm which would be caused by failure to impose a
moratorium outweighs the adverse effects on other affected local
governments, including shifts in demand for housing or economic
development, public facilities and services and buildable lands,
and the overall impact of the moratorium on population
distribution; and
(E) That the city, county or special district proposing the
moratorium has determined that sufficient resources are available
to complete the development of needed interim or permanent
changes in plans, regulations or procedures within the period of
effectiveness of the moratorium.
(b) For rural land:
(A) That application of existing development ordinances or
regulations and other applicable law is inadequate to prevent
irrevocable public harm from development in affected geographical
areas;
(B) Stating the reasons alternative methods of achieving the
objectives of the moratorium are unsatisfactory;
(C) That the moratorium is sufficiently limited to ensure that
lots or parcels outside the affected geographical areas are not
unreasonably restricted by the adoption of the moratorium; and
(D) That the city, county or special district proposing the
moratorium has developed a work plan and time schedule for
achieving the objectives of the moratorium.
(4) No moratorium adopted under subsection (3)(a) of this
section shall be effective for a period longer than 120 days, but
such a moratorium may be extended provided the city, county or
special district adopting the moratorium holds a public hearing
on the proposed extension and adopts written findings that:
(a) Verify the problem giving rise to the need for a moratorium
still exists;
(b) Demonstrate that reasonable progress is being made to
alleviate the problem giving rise to the moratorium; and
(c) Set a specific duration for the renewal of the moratorium.
No extension may be for a period longer than six months.
(5) Any city, county or special district considering an
extension of a moratorium shall give the department at least 14
days' notice of the time and date of the public hearing on the
extension.
SECTION 980. ORS 197.530 is amended to read:
197.530. (1) A city, county or special district that adopts a
moratorium on construction or land development in conformity with
ORS 197.520 (1) and (2) shall within 60 days after the effective
date of the moratorium adopt a program to correct the problem
creating the moratorium. The program shall be presented at a
public hearing. The city, county or special district shall give
at least 14 days' advance notice to the { - Department of Land
Conservation and Development - } { + Oregon Department of
Natural Resources + } of the time and date of the public hearing.
(2) No moratorium adopted under ORS 197.520 (2) shall be
effective for a period longer than six months from the date on
which the corrective program is adopted, but such a moratorium
may be extended provided the city, county or special district
adopting the moratorium holds a public hearing on the proposed
extension and adopts written findings that:
(a) Verify that the problem giving rise to the moratorium still
exists;
(b) Demonstrate that reasonable progress is being made to
alleviate the problem giving rise to the moratorium; and
(c) Set a specific duration for the renewal of the moratorium.
(3) No single extension under subsection (2) of this section
may be for a period longer than six months, and no moratorium
shall be extended more than three times.
(4) Any city, county or special district considering an
extension of a moratorium shall give the department at least 14
days' notice of the time and date of the public hearing on the
extension.
SECTION 981. ORS 197.610 is amended to read:
197.610. (1) A proposal to amend a local government
acknowledged comprehensive plan or land use regulation or to
adopt a new land use regulation shall be forwarded to the
Director of the { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + }
at least 45 days before the first evidentiary hearing on
adoption. The proposal forwarded shall contain the text and any
supplemental information that the local government believes is
necessary to inform the director as to the effect of the
proposal. The notice shall include the date set for the first
evidentiary hearing. The director shall notify persons who have
requested notice that the proposal is pending.
(2) When a local government determines that the goals do not
apply to a particular proposed amendment or new regulation,
notice under subsection (1) of this section is not required. In
addition, a local government may submit an amendment or new
regulation with less than 45 days' notice if the local government
determines that there are emergency circumstances requiring
expedited review. In both cases:
(a) The amendment or new regulation shall be submitted after
adoption as provided in ORS 197.615 (1) and (2); and
(b) Notwithstanding the requirements of ORS 197.830 (2), the
director or any other person may appeal the decision to the
{ - board - } { + Oregon Department of Natural Resources + }
under ORS 197.830 to 197.845.
(3) When the { - Department of Land Conservation and
Development - } { + department + } participates in a local
government proceeding, at least 15 days before the final hearing
on the proposed amendment to the comprehensive plan or land use
regulation or the new land use regulation, the department shall
notify the local government of:
(a) Any concerns the department has concerning the proposal;
and
(b) Advisory recommendations on actions the department
considers necessary to address the concerns, including, but not
limited to, suggested corrections to achieve compliance with the
goals.
(4) The director shall report to the { - Land Conservation
and Development Commission - } { + Oregon Natural Resources
Commission + } on whether the director:
(a) Believes the local government's proposal violates the
goals; and
(b) Is participating in the local government proceeding.
SECTION 982. ORS 197.615 is amended to read:
197.615. (1) A local government that amends an acknowledged
comprehensive plan or land use regulation or adopts a new land
use regulation shall mail or otherwise submit to the Director of
the
{ - Department of Land Conservation and Development - }
{ + Oregon Department of Natural Resources + } a copy of the
adopted text of the comprehensive plan provision or land use
regulation together with the findings adopted by the local
government. The text and findings must be mailed or otherwise
submitted not later than five working days after the final
decision by the governing body. If the proposed amendment or new
regulation that the director received under ORS 197.610 has been
substantially amended, the local government shall specify the
changes that have been made in the notice provided to the
director. If the text and findings are mailed, they shall include
a signed statement by the person mailing them indicating the date
of deposit in the mail.
(2)(a) On the same day that the text and findings are mailed or
delivered, the local government also shall mail or otherwise
submit notice to persons who:
(A) Participated in the proceedings leading to the adoption of
the amendment to the comprehensive plan or land use regulation or
the new land use regulation; and
(B) Requested of the local government in writing that they be
given such notice.
(b) The notice required by this subsection shall:
(A) Describe briefly the action taken by the local government;
(B) State the date of the decision;
(C) If delivered by mail, include a certificate of mailing
containing a statement signed by the person mailing it indicating
the date the notice was deposited in the mail;
(D) List the place where and the time when the amendment to the
acknowledged comprehensive plan or land use regulation or the new
land use regulation, and findings, may be reviewed; and
(E) Explain the requirements for appealing the action of the
local government under ORS 197.830 to 197.845.
(3) Not later than five working days after receipt of an
amendment to an acknowledged comprehensive plan or land use
regulation or a new land use regulation submitted under
subsection (1) of this section, the director shall notify by mail
or other submission any persons who have requested notification.
The notice shall:
(a) Explain the requirements for appealing the action of the
local government under ORS 197.830 to 197.845; and
(b) List the locations where the comprehensive plan or land use
regulation amendment or new land use regulation may be reviewed.
SECTION 983. ORS 197.620 is amended to read:
197.620. (1) Notwithstanding the requirements of ORS 197.830
(2), persons who participated either orally or in writing in the
local government proceedings leading to the adoption of an
amendment to an acknowledged comprehensive plan or land use
regulation or a new land use regulation may appeal the decision
to the { - Land Use Board of Appeals - } { + Oregon
Department of Natural Resources + } under ORS 197.830 to 197.845.
A decision to not adopt a legislative amendment or a new land use
regulation is not appealable except where the amendment is
necessary to address the requirements of a new or amended goal,
rule or statute.
(2) Notwithstanding the requirements of ORS 197.830 (2), the
Director of the { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + }
or any other person may file an appeal of the local government's
decision under ORS 197.830 to 197.845, if an amendment to an
acknowledged comprehensive plan or land use regulation or a new
land use regulation differs from the proposal submitted under ORS
197.610 to such a degree that the notice under ORS 197.610 did
not reasonably describe the nature of the local government final
action.
SECTION 984. ORS 197.625 is amended to read:
197.625. (1) If a notice of intent to appeal is not filed
within the 21-day period set out in ORS 197.830 (9), the
amendment to the acknowledged comprehensive plan or land use
regulation or the new land use regulation shall be considered
acknowledged upon the expiration of the 21-day period. An
amendment to an acknowledged comprehensive plan or land use
regulation is not considered acknowledged unless the notices
required under ORS 197.610 and 197.615 have been submitted to the
Director of the
{ - Department of Land Conservation and Development - }
{ + Oregon Department of Natural Resources + } and:
(a) The 21-day appeal period has expired; or
(b) If an appeal is timely filed, the { - board - }
{ + Oregon Department of Natural Resources + } affirms the
decision or the appellate courts affirm the decision.
(2) If the decision adopting an amendment to an acknowledged
comprehensive plan or land use regulation or a new land use
regulation is affirmed on appeal under ORS 197.830 to 197.855,
the amendment or new regulation shall be considered acknowledged
upon the date the appellate decision becomes final.
(3)(a) Prior to its acknowledgment, the adoption of a new
comprehensive plan provision or land use regulation or an
amendment to a comprehensive plan or land use regulation is
effective at the time specified by local government charter or
ordinance and is applicable to land use decisions, expedited land
divisions and limited land use decisions if the amendment was
adopted in substantial compliance with ORS 197.610 and 197.615
unless a stay is granted under ORS 197.845.
(b) Any approval of a land use decision, expedited land
division or limited land use decision subject to an
unacknowledged amendment to a comprehensive plan or land use
regulation shall include findings of compliance with those land
use goals applicable to the amendment.
(c) The issuance of a permit under an effective but
unacknowledged comprehensive plan or land use regulation shall
not be relied upon to justify retention of improvements so
permitted if the comprehensive plan provision or land use
regulation does not gain acknowledgment.
(d) The provisions of this subsection apply to applications for
land use decisions, expedited land divisions and limited land use
decisions submitted after February 17, 1993, and to comprehensive
plan and land use regulation amendments adopted:
(A) After June 1, 1991, pursuant to periodic review
requirements under ORS 197.628, 197.633 and 197.636;
(B) After June 1, 1991, to meet the requirements of ORS
197.646; and
(C) After November 4, 1993.
(4) The director shall issue certification of the
acknowledgment upon receipt of an affidavit from the
{ - board - } { + department + } stating either:
(a) That no appeal was filed within the 21 days allowed under
ORS 197.830 (9); or
(b) The date the appellate decision affirming the adoption of
the amendment or new regulation became final.
(5) The { - board - } { + department + } shall issue an
affidavit for the purposes of subsection (4) of this section
within five days of receiving a valid request from the local
government.
(6) After issuance of the notice provided in ORS 197.633,
nothing in this section shall prevent the { - Land Conservation
and Development Commission - } { + Oregon Natural Resources
Commission + } from entering an order pursuant to ORS 197.633,
197.636 or 197.644 to require a local government to respond to
the standards of ORS 197.628.
SECTION 985. ORS 197.626 is amended to read:
197.626. A metropolitan service district that amends its urban
growth boundary to include more than 100 acres, or that amends
the district's regional framework plan or land use regulations
implementing the plan to establish urban reserves designated
under ORS 195.145 (1)(b), a city with a population of 2,500 or
more within its urban growth boundary that amends the urban
growth boundary to include more than 50 acres or that designates
urban reserve under ORS 195.145, or a county that amends the
county's comprehensive plan or land use regulations implementing
the plan to establish rural reserves designated under ORS
195.141, shall submit the amendment or designation to the
{ - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + } in the manner
provided for periodic review under ORS 197.628 to 197.650.
SECTION 986. ORS 197.628 is amended to read:
197.628. (1) It is the policy of the State of Oregon to require
the periodic review of comprehensive plans and land use
regulations in order to respond to changes in local, regional and
state conditions to ensure that the plans and regulations remain
in compliance with the statewide planning goals adopted pursuant
to ORS 197.230, and to ensure that the plans and regulations make
adequate provision for economic development, needed housing,
transportation, public facilities and services and urbanization.
(2) The { - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + } shall concentrate
periodic review assistance to local governments on achieving
compliance with those statewide land use planning laws and goals
that address economic development, needed housing,
transportation, public facilities and services and urbanization.
(3) The following conditions indicate the need for periodic
review of comprehensive plans and land use regulations:
(a) There has been a substantial change in circumstances
including but not limited to the conditions, findings or
assumptions upon which the comprehensive plan or land use
regulations were based, so that the comprehensive plan or land
use regulations do not comply with the statewide planning goals
relating to economic development, needed housing, transportation,
public facilities and services and urbanization;
(b) Decisions implementing acknowledged comprehensive plan and
land use regulations are inconsistent with the goals relating to
economic development, needed housing, transportation, public
facilities and services and urbanization;
(c) There are issues of regional or statewide significance,
intergovernmental coordination or state agency plans or programs
affecting land use which must be addressed in order to bring
comprehensive plans and land use regulations into compliance with
the goals relating to economic development, needed housing,
transportation, public facilities and services and urbanization;
or
(d) The local government, commission or { - Department of
Land Conservation and Development - } { + Oregon Department of
Natural Resources + } determines that the existing comprehensive
plan and land use regulations are not achieving the statewide
planning goals relating to economic development, needed housing,
transportation, public facilities and services and urbanization.
SECTION 987. ORS 197.629 is amended to read:
197.629. (1) The { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + }
shall establish and maintain a schedule for periodic review of
comprehensive plans and land use regulations. Except as necessary
to coordinate approved periodic review work programs and to
account for special circumstances that from time to time arise,
the schedule shall reflect the following timelines:
(a) A city with a population of more than 2,500 within a
metropolitan planning organization or a metropolitan service
district shall conduct periodic review every seven years after
completion of the previous periodic review; and
(b) A city with a population of 10,000 or more inside its urban
growth boundary that is not within a metropolitan planning
organization shall conduct periodic review every 10 years after
completion of the previous periodic review.
(2) A county with a portion of its population within the urban
growth boundary of a city subject to periodic review under this
section shall conduct periodic review for that portion of the
county according to the schedule and work program set for the
city.
(3) Notwithstanding subsection (2) of this section, if the
schedule set for the county is specific as to that portion of the
county within the urban growth boundary of a city subject to
periodic review under this section, the county shall conduct
periodic review for that portion of the county according to the
schedule and work program set for the county.
(4) If the { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + } pays
the costs of a local government that is not subject to subsection
(1) of this section to perform new work programs and work tasks,
the commission may require the local government to complete
periodic review when the local government has not completed
periodic review within the previous five years if:
(a) A city has been growing faster than the annual population
growth rate of the state for five consecutive years;
(b) A major transportation project on the Statewide
Transportation Improvement Program that is approved for funding
by the Oregon Transportation Commission is likely to:
(A) Have a significant impact on a city or an urban
unincorporated community; or
(B) Be significantly affected by growth and development in a
city or an urban unincorporated community;
(c) A major facility, including a prison, is sited or funded by
a state agency; or
(d) Approval by the city or county of a facility for a major
employer will increase employment opportunities and significantly
affect the capacity of housing and public facilities in the city
or urban unincorporated community.
(5) The { - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + } may schedule
periodic review for a local government earlier than provided in
subsection (1) of this section if necessary to ensure that all
local governments in a region whose land use decisions would
significantly affect other local governments in the region are
conducting periodic review concurrently, but not sooner than five
years after completion of the previous periodic review.
(6) A city or county that is not required to complete periodic
review under subsection (1) of this section may request periodic
review by the { + Oregon Natural Resources + } Commission.
(7) As used in this section, 'metropolitan planning
organization' means an organization located wholly within the
State of Oregon and designated by the Governor to coordinate
transportation planning in an urbanized area of the state
pursuant to 49 U.S.C. 5303(c).
SECTION 988. ORS 197.631 is amended to read:
197.631. In order to use state and local periodic review
resources most efficiently and effectively and to concentrate
periodic review on adequate provision of economic development,
needed housing, transportation, public facilities and services
and urbanization, the { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + }
shall adopt, amend or repeal the statewide land use planning
goals, guidelines and corresponding rules as necessary to
facilitate periodic review and to provide for compliance by local
governments with those goals not described in ORS 197.628 (2)
through the post-acknowledgment procedures of ORS 197.610 to
197.625.
SECTION 989. ORS 197.633 is amended to read:
197.633. (1) The periodic review process is divided into two
phases. Phase one is the evaluation of the existing comprehensive
plan, land use regulations and citizen involvement program and,
if necessary, the development of a work program to make needed
changes to the comprehensive plan or land use regulations. Phase
two is the completion of work tasks outlined in the work program.
(2) The { - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + } shall adopt rules
for conducting periodic review. The rules shall provide a process
for:
(a) Initiating periodic review;
(b) Citizen participation;
(c) The participation of state agencies;
(d) The preparation, review and approval of an evaluation of a
comprehensive plan and land use regulations;
(e) Review of a work program; and
(f) Review of completed work tasks.
(3) A decision by the Director of the { - Department of Land
Conservation and Development - } { + Oregon Department of
Natural Resources + } to approve a work program, that no work
program is necessary or that no further work is necessary is
final and not subject to appeal.
(4) The director:
(a) Shall take action on a work task not later than 120 days
after the local government submits the work task for review
unless the local government waives the 120-day deadline or the
commission grants the director an extension. If the director does
not take action within the time period required by this
subsection, the work task is deemed approved. The { + Oregon + }
Department { + of Natural Resources + } shall provide a letter
to the local government certifying that the work task is approved
unless an interested party has filed a timely objection to the
work task consistent with administrative rules for conducting
periodic review. If a timely objection is filed, the director
shall refer the work task to the commission.
(b) May approve or remand a work task or refer the work task to
the commission for a decision. A decision by the director to
approve or remand a work task may be appealed to the commission.
(5) Except as provided in this subsection, the commission shall
take action on the appeal or referral within 90 days of the
appeal or referral. Action by the commission in response to an
appeal from a decision of the director is a final order subject
to judicial review in the manner provided in ORS 197.650. The
commission may extend the time for taking action on the appeal or
referral if the commission finds that:
(a) The appeal or referral is appropriate for mediation;
(b) The appeal or referral raises new or complex issues of fact
or law that make it unreasonable for the commission to give
adequate consideration to the issues within the 90-day limit; or
(c) The parties to the appeal and the commission agree to an
extension, not to exceed an additional 90 days.
(6) The commission and a local government shall attempt to
complete periodic review within three years after approval of a
work program. In order to promote the timely completion of
periodic review, the commission shall establish a system of
incentives to encourage local government compliance with
timelines in periodic review work programs.
SECTION 990. ORS 197.636 is amended to read:
197.636. (1) Upon good cause shown by a local government, the
Director of the { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + }
may allow the local government an extension of time for
submitting a work program or completing a work task. A decision
by the director to grant or deny an extension may be referred to
the { - Land Conservation and Development Commission by the
director. The Department of Land Conservation and Development - }
{ + Oregon Natural Resources Commission by the director. The
Oregon Department of Natural Resources + } or the commission
shall not extend the deadline for submitting a work program more
than once nor for more than 90 days, and shall not extend the
deadline for a work task more than once nor for more than one
year.
(2) If a local government fails to submit a work program or to
complete a work task by the deadline set by the director or the
commission, including any extension that has been granted, the
director shall schedule a hearing before the commission. The
commission shall issue an order imposing one or more of the
following sanctions until the work program or the work task
receives final approval by the director or the commission:
(a) Require the local government to apply those portions of the
goals and rules to land use decisions as specified in the order.
Sanctions may be imposed under this paragraph only when necessary
to resolve a specific deficiency identified in the order.
(b) Forfeiture of all or a portion of the grant money received
to conduct the review, develop the work program or complete the
work task.
(c) Completion of the work program or work task by the
department. The commission may require the local government to
pay the cost for completion of work performed by the department,
following the withholding process set forth in ORS 197.335 (4).
(d) Application of such interim measures as the commission
deems necessary to ensure compliance with the statewide planning
goals.
(3) If the department receives a work program or work task
completed in response to a commission order issued under
subsection (2) of this section, the director shall evaluate and
issue a decision on the work program or work task within 90 days.
(4) Commission action pursuant to subsection (1) or (2) of this
section is a final order subject to judicial review in the manner
provided in ORS 197.650.
SECTION 991. ORS 197.637 is amended to read:
197.637. (1) Upon request of the { - Department of Land
Conservation and Development - } { + Oregon Department of
Natural Resources + }, the Housing and Community Services
Department shall review the inventory and analysis of housing,
and measures taken to address the housing need, required of
certain local governments under ORS 197.296. The review shall
address the likely effect of measures developed by a local
government under ORS 197.296 (6) or (7) on the adequacy of the
supply of buildable land and opportunities to satisfy needs
identified under ORS 197.296 (3).
(2) The { - Land Conservation and Development Commission and
the Director of the Department of Land Conservation and
Development - } { + Director of the Oregon Department of
Natural Resources and the Oregon Natural Resources Commission + }
shall consider the review and any recommendations of the Housing
and Community Services Department when determining whether a
local government has complied with the statewide land use
planning goals and the requirements of ORS 197.296.
SECTION 992. ORS 197.638 is amended to read:
197.638. (1) Upon request of the { - Department of Land
Conservation and Development - } { + Oregon Department of
Natural Resources + }, the Oregon Business Development Department
shall review the inventory and analysis of industrial and
commercial land, and measures taken to address the land needs,
required of certain local governments under ORS 197.712. The
review shall address the likely effect of measures developed by a
local government on the adequacy of the supply of sites and
opportunities to satisfy needs identified under ORS 197.712.
(2) The { - Land Conservation and Development Commission and
the Director of the Department of Land Conservation and
Development - } { + Director of the Oregon Department of
Natural Resources and the Oregon Natural Resources Commission + }
shall consider the review and any recommendations of the Oregon
Business Development Department when determining whether a local
government has complied with the statewide land use planning
goals and the requirements of ORS 197.712.
SECTION 993. ORS 197.639 is amended to read:
197.639. (1) In addition to coordination between state agencies
and local government established in certified state agency
coordination programs, the { - Department of Land Conservation
and Development - } { + Oregon Department of Natural
Resources + } may establish one or more state assistance teams
made up of representatives of various agencies and local
governments, utilize the Economic Revitalization Team established
under ORS 284.555 or institute an alternative process for
coordinating agency participation in the periodic review of
comprehensive plans.
(2) The Economic Revitalization Team may work with a city to
create a voluntary comprehensive plan review that focuses on the
unique vision of the city, instead of conducting a standard
periodic review, if the team identifies a city that the team
determines can benefit from a customized voluntary comprehensive
plan review.
(3) The department may develop model ordinance provisions to
assist local governments in the periodic review plan update
process and in complying with new statutory requirements or new
land use planning goal or rule requirements adopted by the
{ - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + } outside the periodic
review process.
(4) A local government may arrange with the department for the
provision of periodic review planning services and those services
may be paid with grant program funds.
(5) The commission shall establish an advisory committee
composed, at a minimum, of representatives from the League of
Oregon Cities, the Association of Oregon Counties, metropolitan
service districts, the Special Districts Association of Oregon,
land use planning public interest groups and developer interest
groups. The advisory committee shall advise the commission and
the department on the allocation of grants and technical
assistance funding from General Fund sources and other issues
assigned by the commission.
SECTION 994. ORS 197.644 is amended to read:
197.644. (1) The { - Land Conservation and Development
Commission may direct or, upon request of the local government,
the Director of the Department of Land Conservation and
Development - } { + Oregon Natural Resources Commission may
direct or, upon request of the local government, the Director of
the Oregon Department of Natural Resources + } may authorize a
local government to modify an approved work program when:
(a) Issues of regional or statewide significance arising out of
another local government's periodic review require an enhanced
level of coordination;
(b) Issues of goal compliance are raised as a result of
completion of a work program task resulting in a need to
undertake further review or revisions;
(c) Issues relating to the organization of the work program,
coordination with affected agencies or persons, or orderly
implementation of work tasks result in a need for further review
or revision; or
(d) Issues relating to needed housing, employment,
transportation or public facilities and services were omitted
from the work program but must be addressed in order to ensure
compliance with the statewide planning goals.
(2) The commission shall have exclusive jurisdiction for review
of the evaluation, work program and completed work program tasks
as set forth in ORS 197.628 to 197.650. The commission shall
adopt rules governing standing, the provision of notice, conduct
of hearings, adoption of stays, extension of time periods and
other matters related to the administration of ORS 197.180,
197.245, 197.254, 197.295, 197.320, 197.620, 197.625, 197.628 to
197.650, 197.712, 197.747, 197.840, 215.416, 227.175 and 466.385.
(3)(a) Commission action pursuant to subsection (1) or (2) of
this section is a final order subject to judicial review in the
manner provided in ORS 197.650.
(b) Action by the director pursuant to subsection (1) of this
section may be appealed to the commission pursuant to rules
adopted by the commission. Commission action under this paragraph
is a final order subject to judicial review in the manner
provided in ORS 197.650.
SECTION 995. ORS 197.646 is amended to read:
197.646. (1) A local government shall amend its acknowledged
comprehensive plan, regional framework plan and land use
regulations implementing either plan by a self-initiated
post-acknowledgment process under ORS 197.610 to 197.625 to
comply with:
(a) A new statutory requirement; or
(b) A new land use planning goal or rule requirement adopted by
the { - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + }.
(2) Periodic review is not the implementation process for new
statutory, land use planning goal or rule requirements.
(3)(a) The { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + }
shall notify local governments when a new statutory requirement
or a new land use planning goal or rule requirement adopted by
the commission requires changes to an acknowledged comprehensive
plan, a regional framework plan and land use regulations
implementing either plan.
(b) The commission shall establish, by rule, the time period
within which an acknowledged comprehensive plan, a regional
framework plan and land use regulations implementing either plan
must be in compliance with:
(A) A new statutory requirement, if the legislation does not
specify a time period for compliance; and
(B) A new land use planning goal or rule requirement adopted by
the commission.
(4) When a local government does not adopt amendments to a
comprehensive plan, a regional framework plan and land use
regulations implementing either plan as required by subsection
(1) of this section, the new statutory, land use planning goal or
rule requirements apply directly to the local government's land
use decisions. The failure to adopt amendments to a comprehensive
plan, a regional framework plan and land use regulations
implementing either plan required by subsection (1) of this
section is a basis for initiation of enforcement action pursuant
to ORS 197.319 to 197.335.
SECTION 996. ORS 197.649 is amended to read:
197.649. The { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + } may
establish by rule fees to cover the cost of notice given to
persons by the Director of the
{ - Department of Land Conservation and Development - }
{ + Oregon Department of Natural Resources + } under ORS 197.610
(1) and 197.615 (3).
SECTION 997. ORS 197.650 is amended to read:
197.650. (1) { - A Land Conservation and Development
Commission - } { + An Oregon Natural Resources Commission + }
order may be appealed to the Court of Appeals in the manner
provided in ORS 183.482 by the following persons:
(a) Persons who submitted comments or objections pursuant to
ORS 197.251 (2) or proceedings under ORS 197.633, 197.636 or
197.644 and are appealing a commission order issued under ORS
197.251 or 197.633, 197.636 or 197.644;
(b) Persons who submitted comments or objections pursuant to
procedures adopted by the commission for certification of state
agency coordination programs and are appealing a certification
issued under ORS 197.180 (7);
(c) Persons who petitioned the commission for an order under
ORS 197.324 and whose petition was dismissed;
(d) Persons who submitted comments or objections pursuant to
ORS 197.659 and 215.788 to 215.794 or proceedings under ORS
197.659 and 215.788 to 215.794 and are appealing a commission
order issued under ORS 197.659 and 215.788 to 215.794;
(e) Persons who submitted comments or objections pursuant to
ORS 197.652 to 197.658 and 197.659 or proceedings under ORS
197.652 to 197.658 and 197.659 and are appealing a commission
order issued under ORS 197.652 to 197.658 and 197.659; or
(f) Persons who submitted oral or written testimony in a
proceeding before the commission pursuant to ORS 215.780.
(2) Notwithstanding ORS 183.482 (2) relating to contents of the
petition, the petition shall state the nature of the order
petitioner desires reviewed and whether the petitioner submitted
comments or objections as provided in ORS 197.251 (2) or pursuant
to ORS 197.633, 197.636, 197.644 or 197.659.
(3) Notwithstanding ORS 183.482 (2) relating to service of the
petition, copies of the petition shall be served by registered or
certified mail upon the { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + },
the local government and all persons who filed comments or
objections.
SECTION 998. ORS 197.651 is amended to read:
197.651. (1) Notwithstanding ORS 197.650, { - a Land
Conservation and Development Commission - } { + an Oregon
Natural Resources Commission + } order concerning the designation
of urban reserves under ORS 195.145 (1)(b) or rural reserves
under ORS 195.141 may be appealed to the Court of Appeals by the
persons described in ORS 197.650.
(2) Judicial review of orders described in subsection (1) of
this section is as provided in this section.
(3) Jurisdiction for judicial review is conferred upon the
Court of Appeals. A proceeding for judicial review may be
instituted by filing a petition in the Court of Appeals. The
petition must be filed within 21 days after the date the
commission delivered or mailed the order upon which the petition
is based.
(4) The filing of the petition, as set forth in subsection (3)
of this section, and service of a petition on the persons who
submitted oral or written testimony in the proceeding before the
commission are jurisdictional and may not be waived or extended.
(5) The petition must state the nature of the order the
petitioner seeks to have reviewed. Copies of the petition must be
served by registered or certified mail upon the commission and
the persons who submitted oral or written testimony in the
proceeding before the commission.
(6) Within 21 days after service of the petition, the
commission shall transmit to the Court of Appeals the original or
a certified copy of the entire record of the proceeding under
review. However, by stipulation of the parties to the review
proceeding, the record may be shortened. The Court of Appeals may
tax a party that unreasonably refuses to stipulate to limit the
record for the additional costs. The Court of Appeals may require
or permit subsequent corrections or additions to the record.
Except as specifically provided in this subsection, the Court of
Appeals may not tax the cost of the record to the petitioner or
an intervening party. However, the Court of Appeals may tax the
costs to a party that files a frivolous petition for judicial
review.
(7) Petitions and briefs must be filed within time periods and
in a manner established by the Court of Appeals by rule.
(8) The Court of Appeals shall:
(a) Hear oral argument within 49 days of the date of
transmittal of the record unless the Court of Appeals determines
that the ends of justice served by holding oral argument on a
later day outweigh the best interests of the public and the
parties. However, the Court of Appeals may not hold oral argument
more than 49 days after the date of transmittal of the record
because of general congestion of the court calendar or lack of
diligent preparation or attention to the case by a member of the
court or a party.
(b) Set forth in writing and provide to the parties a
determination to hear oral argument more than 49 days from the
date the record is transmitted, together with the reasons for the
determination. The Court of Appeals shall schedule oral argument
as soon as is practicable.
(c) Consider, in making a determination under paragraph (b) of
this subsection:
(A) Whether the case is so unusual or complex, due to the
number of parties or the existence of novel questions of law,
that 49 days is an unreasonable amount of time for the parties to
brief the case and for the Court of Appeals to prepare for oral
argument; and
(B) Whether the failure to hold oral argument at a later date
likely would result in a miscarriage of justice.
(9) The court:
(a) Shall limit judicial review of an order reviewed under this
section to the record.
(b) May not substitute its judgment for that of the { - Land
Conservation and Development Commission - } { + Oregon Natural
Resources Commission + } as to an issue of fact.
(10) The Court of Appeals may affirm, reverse or remand an
order reviewed under this section. The Court of Appeals shall
reverse or remand the order only if the court finds the order is:
(a) Unlawful in substance or procedure. However, error in
procedure is not cause for reversal or remand unless the Court of
Appeals determines that substantial rights of the petitioner were
prejudiced.
(b) Unconstitutional.
(c) Not supported by substantial evidence in the whole record
as to facts found by the commission.
(11) The Court of Appeals shall issue a final order on the
petition for judicial review with the greatest possible
expediency.
(12) If the order of the commission is remanded by the Court of
Appeals or the Supreme Court, the commission shall respond to the
court's appellate judgment within 30 days.
SECTION 999. ORS 197.652 is amended to read:
197.652. (1) At the request of a county and at least one other
local government in a region, the { - Department of Land
Conservation and Development - } { + Oregon Department of
Natural Resources + }, other state agencies, as defined in ORS
171.133, metropolitan planning organizations, special districts
and advisory committees on transportation may participate with
the local governments in a collaborative regional problem-solving
process.
(2) If requested to participate, the department shall assist
the county with the process and encourage regional efforts to
resolve land use planning problems using the authorities
described in ORS 197.652 to 197.658.
(3) The county, in cooperation with the other local
governments, shall identify the land use planning problems to be
addressed and the participants whose actions are necessary to
resolve the land use planning problems.
(4) The county shall submit a proposed work scope and a
proposed list of participants as a proposal to the { - Land
Conservation and Development Commission - } { + Oregon Natural
Resources Commission + } for review. The commission shall review:
(a) The proposed work scope to determine whether it can
reasonably be completed within the time allowed;
(b) The proposed participant list to determine whether it
includes, at a minimum, all local governments that will need to
amend a comprehensive plan provision or a land use regulation, or
adopt a new provision or regulation, in order to resolve the land
use planning problems identified in the work scope; and
(c) The proposed work scope and the proposed participant list
for consistency.
(5) A county may initiate amendments of a comprehensive plan or
land use regulation under ORS 197.652 to 197.658 only if the
commission approves the work scope, the list of participants and
a schedule for completion of the process. The schedule for
completion of the process may:
(a) Not exceed three years except as provided in paragraph (b)
of this subsection.
(b) Be extended by the commission for up to one year for good
cause shown.
(6) The decision of a county to submit a proposal under this
section, and the decision of the commission to approve a
proposal, are not final actions subject to judicial review.
(7) If the commission approves a proposal under this section,
the county must periodically report on the progress in carrying
out the proposal, as specified by the commission.
(8) For purposes of ORS 197.654 and 197.656, the participants
in a collaborative regional problem-solving process include all
participants on the list of participants approved by the
commission unless the commission subsequently approves the
addition or removal of a participant.
SECTION 1000. ORS 197.654 is amended to read:
197.654. (1) After the { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + }
approves a proposal for regional problem-solving under ORS
197.652, the participants shall develop proposed actions to
resolve the problems identified in the work scope. The
participants must agree to:
(a) Regional goals that describe how the region intends to
resolve each regional problem described in the work scope;
(b) Actions necessary to achieve the regional goals, including
changes to comprehensive plans or land use regulations;
(c) Measurable indicators of performance and a system for
monitoring progress toward achievement of the regional goals;
(d) Incentives and disincentives to encourage successful
implementation of the actions to achieve the regional goals;
(e) If the regional goals involve the management of an urban
growth boundary, actions to coordinate the planning and provision
of water, sewer and transportation facilities in the region; and
(f) A process for correction of actions if monitoring indicates
that the actions are not achieving the regional goals.
(2) A decision by a participant to enter into a regional
problem-solving agreement under ORS 197.652 to 197.658 is not a
final land use decision. However, a regional problem-solving
agreement is not final and binding until:
(a) All local governments that are participants have adopted
the provisions of the comprehensive plans or land use regulations
contemplated in the agreement; and
(b) The commission has approved the comprehensive plan
provisions and land use regulations as provided under ORS
197.656.
(3) Changes to provisions of comprehensive plans and land use
regulations adopted to implement a regional problem-solving
agreement take effect 60 days after the commission notifies all
participants that the commission has approved all of the changes.
SECTION 1001. ORS 197.656 is amended to read:
197.656. (1) After the adoption of changes to comprehensive
plans and land use regulations to implement a regional
problem-solving agreement under ORS 197.652 to 197.658, the local
governments that are participants shall submit the changes to the
{ - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + } for review in the
manner set forth in this section.
(2) Following the procedures set forth in this subsection, the
commission may approve changes to comprehensive plans and land
use regulations that do not fully comply with the statewide land
use planning goals, without taking an exception under ORS
197.732, upon a determination that the changes:
(a) Conform, on the whole, with the purposes of the goals, and
any failure to meet individual goal requirements is technical or
minor in nature;
(b) Are needed to achieve the regional goals specified by the
participants; and
(c) In combination with other actions agreed upon by the
participants, are reasonably likely to achieve the regional
goals.
(3) The commission:
(a) Shall review changes to the comprehensive plans or land use
regulations adopted by a local government to implement a regional
problem-solving agreement under ORS 197.652 to 197.658 pursuant
to the procedures set forth in this section and ORS 197.659.
(b) Has exclusive jurisdiction for review of changes to
comprehensive plans or land use regulations adopted by a local
government to implement a regional problem-solving agreement
under ORS 197.652 to 197.658.
(4) A participant in the regional problem-solving process or a
person who participated in the proceedings leading to the
adoption of changes to the comprehensive plans or land use
regulations may not raise an issue on review before the
commission that was not raised in the local proceedings for
adoption of the changes to the plans or regulations.
(5) If the commission disapproves changes to the comprehensive
plans or land use regulations adopted by a local government to
implement a regional problem-solving agreement under ORS 197.652
to 197.658, the commission shall issue a written statement
describing the reasons for the disapproval and suggesting
alternative methods for accomplishing the goals on a timely
basis.
(6) If, in order to resolve regional land use problems, the
participants in a collaborative regional problem-solving process
decide to devote agricultural land or forestland, as defined in
the statewide planning goals, to uses not authorized by those
goals, the participants shall choose land that is not part of the
region's commercial agricultural or forestland base, or take an
exception to those goals pursuant to ORS 197.732. To identify
land that is not part of the region's commercial agricultural or
forestland base, the participants shall consider the
recommendation of a committee of persons appointed by the
affected county, with expertise in appropriate fields, including
but not limited to farmers, ranchers, foresters and soils
scientists and representatives of the State Department of
Agriculture { - , the State Forestry Department and the
Department of Land Conservation and Development - } { + and the
Oregon Department of Natural Resources + }.
(7) The Governor may require all appropriate state agencies to
participate in the collaborative regional problem-solving
process.
(8) The commission may adopt rules to establish additional
procedural and substantive requirements for review of changes to
comprehensive plans and land use regulations adopted by local
governments to implement a regional problem-solving agreement
under ORS 197.652 to 197.658.
SECTION 1002. ORS 197.658 is amended to read:
197.658. In addition to the provisions of ORS 197.644, the
{ - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + } may modify an
approved work program when a local government has agreed to
participate in a collaborative regional problem-solving process
pursuant to ORS 197.654 and 197.656.
SECTION 1003. ORS 197.659 is amended to read:
197.659. (1) The { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + }
shall grant, deny or remand approval of proposed changes to a
comprehensive plan or land use regulations adopted pursuant to
ORS 197.652 to 197.658 or 215.788 to 215.794 within 120 days
after the date that the local government submits the proposed
changes.
(2) The { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + }
shall prepare a report stating whether the proposed changes
comply with applicable statutes, goals and commission rules. The
department shall provide a reasonable opportunity for persons to
prepare and submit written comments or objections to the report;
however a person may not:
(a) Submit written comments or objections to the report unless
the person participated orally or in writing in the local
government proceedings leading to the adoption of the proposed
changes.
(b) Produce new evidence.
(3) After reviewing the proposed changes, the report and any
written comments and objections to the report, the commission
shall prepare a proposed final order. The commission shall afford
the local government and persons who submitted written comments
or objections to the report a reasonable opportunity to file
written exceptions to the proposed final order. If timely
exceptions are not filed, the proposed order becomes final.
(4) The commission's review under this section is confined to
the record of proceedings before the local government, the report
of the department and any comments, objections and exceptions
filed under subsection (2) or (3) of this section and the
proposed final order of the commission, including any responses
to exceptions. The commission may entertain oral argument from
the department and from persons who filed exceptions, and may
consider new issues raised by its review. The commission may not
allow additional evidence, argument or testimony that could have
been presented to the local government but was not presented.
(5) A commission order granting, denying or remanding proposed
changes must include a clear statement of findings that sets
forth the basis for the approval, denial or remand, including:
(a) Identifying the statutes, goals and rules applicable to the
proposed changes; and
(b) Supporting the determinations of compliance and
noncompliance.
(6) A commission order granting approval may be limited to an
identified geographic area described in the order if:
(a) The identified geographic area is the only area that is the
subject of the proposed changes; or
(b) Specific geographic areas do not comply with the applicable
statutes, goals or rules, and the requirements are not technical
or minor in nature.
(7) The commission may issue a limited approval order if a
previously issued approval order is reversed or remanded by an
appellate court. The limited approval order may deny approval of
that part of the comprehensive plan or land use regulations that
the court found not in compliance with the applicable statutes,
goals or rules and grant approval of other parts of the proposed
changes.
(8) A limited approval order is an approval for all purposes
and is a final order for purposes of judicial review with respect
to the approved geographic area. A limited order may be adopted
in conjunction with a remand.
SECTION 1004. ORS 197.712 is amended to read:
197.712. (1) In addition to the findings and policies set forth
in ORS 197.005, 197.010 and 215.243, the Legislative Assembly
finds and declares that, in carrying out statewide comprehensive
land use planning, the provision of adequate opportunities for a
variety of economic activities throughout the state is vital to
the health, welfare and prosperity of all the people of the
state.
(2) By the adoption of new goals or rules, or the application,
interpretation or amendment of existing goals or rules, the
{ - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + } shall implement all
of the following:
(a) Comprehensive plans shall include an analysis of the
community's economic patterns, potentialities, strengths and
deficiencies as they relate to state and national trends.
(b) Comprehensive plans shall contain policies concerning the
economic development opportunities in the community.
(c) Comprehensive plans and land use regulations shall provide
for at least an adequate supply of sites of suitable sizes,
types, locations and service levels for industrial and commercial
uses consistent with plan policies.
(d) Comprehensive plans and land use regulations shall provide
for compatible uses on or near sites zoned for specific
industrial and commercial uses.
(e) A city or county shall develop and adopt a public facility
plan for areas within an urban growth boundary containing a
population greater than 2,500 persons. The public facility plan
shall include rough cost estimates for public projects needed to
provide sewer, water and transportation for the land uses
contemplated in the comprehensive plan and land use regulations.
Project timing and financing provisions of public facility plans
shall not be considered land use decisions.
(f) In accordance with ORS 197.180, state agencies that provide
funding for transportation, water supply, sewage and solid waste
facilities shall identify in their coordination programs how they
will coordinate that funding with other state agencies and with
the public facility plans of cities and counties. In addition,
state agencies that issue permits affecting land use shall
identify in their coordination programs how they will coordinate
permit issuance with other state agencies and cities and
counties.
(g) Local governments shall provide:
(A) Reasonable opportunities to satisfy local and rural needs
for residential and industrial development and other economic
activities on appropriate lands outside urban growth boundaries,
in a manner consistent with conservation of the state's
agricultural and forest land base; and
(B) Reasonable opportunities for urban residential, commercial
and industrial needs over time through changes to urban growth
boundaries.
(3) A comprehensive plan and land use regulations shall be in
compliance with this section by the first periodic review of that
plan and regulations.
SECTION 1005. ORS 197.717 is amended to read:
197.717. (1) State agencies shall provide technical assistance
to local governments in:
(a) Planning and zoning land adequate in amount, size,
topography, transportation access and surrounding land use and
public facilities for the special needs of various industrial and
commercial uses;
(b) Developing public facility plans; and
(c) Streamlining local permit procedures.
(2) The Oregon Business Development Department shall provide a
local government with 'state and national trend' information to
assist in compliance with ORS 197.712 (2)(a).
(3) The { - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + } shall develop model
ordinances to assist local governments in streamlining local
permit procedures.
(4) The { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + }
and the Oregon Business Development Department shall establish a
joint program to assist rural communities with economic and
community development services. The assistance shall include, but
not be limited to, grants, loans, model ordinances and technical
assistance. The purposes of the assistance are to remove
obstacles to economic and community development and to facilitate
that development. The departments shall give priority to
communities with high rates of unemployment.
SECTION 1006. ORS 197.732 is amended to read:
197.732. (1) As used in this section:
(a) 'Compatible' is not intended as an absolute term meaning no
interference or adverse impacts of any type with adjacent uses.
(b) 'Exception' means a comprehensive plan provision, including
an amendment to an acknowledged comprehensive plan, that:
(A) Is applicable to specific properties or situations and does
not establish a planning or zoning policy of general
applicability;
(B) Does not comply with some or all goal requirements
applicable to the subject properties or situations; and
(C) Complies with standards under subsection (2) of this
section.
(2) A local government may adopt an exception to a goal if:
(a) The land subject to the exception is physically developed
to the extent that it is no longer available for uses allowed by
the applicable goal;
(b) The land subject to the exception is irrevocably committed
as described by { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + } rule
to uses not allowed by the applicable goal because existing
adjacent uses and other relevant factors make uses allowed by the
applicable goal impracticable; or
(c) The following standards are met:
(A) Reasons justify why the state policy embodied in the
applicable goals should not apply;
(B) Areas that do not require a new exception cannot reasonably
accommodate the use;
(C) The long term environmental, economic, social and energy
consequences resulting from the use at the proposed site with
measures designed to reduce adverse impacts are not significantly
more adverse than would typically result from the same proposal
being located in areas requiring a goal exception other than the
proposed site; and
(D) The proposed uses are compatible with other adjacent uses
or will be so rendered through measures designed to reduce
adverse impacts.
(3) The commission shall adopt rules establishing:
(a) That an exception may be adopted to allow a use authorized
by a statewide planning goal that cannot comply with the approval
standards for that type of use;
(b) Under what circumstances particular reasons may or may not
be used to justify an exception under subsection (2)(c)(A) of
this section; and
(c) Which uses allowed by the applicable goal must be found
impracticable under subsection (2) of this section.
(4) A local government approving or denying a proposed
exception shall set forth findings of fact and a statement of
reasons that demonstrate that the standards of subsection (2) of
this section have or have not been met.
(5) Each notice of a public hearing on a proposed exception
shall specifically note that a goal exception is proposed and
shall summarize the issues in an understandable manner.
(6) Upon review of a decision approving or denying an
exception:
(a) The { - Land Use Board of Appeals - } { + Oregon
Department of Natural Resources + } or the commission shall be
bound by any finding of fact for which there is substantial
evidence in the record of the local government proceedings
resulting in approval or denial of the exception;
(b) The { - board - } { + department + } upon petition, or
the commission, shall determine whether the local government's
findings and reasons demonstrate that the standards of subsection
(2) of this section have or have not been met; and
(c) The { - board - } { + department + } or commission
shall adopt a clear statement of reasons that sets forth the
basis for the determination that the standards of subsection (2)
of this section have or have not been met.
(7) The commission shall by rule establish the standards
required to justify an exception to the definition of 'needed
housing' authorized by ORS 197.303 (3).
(8) An exception acknowledged under ORS 197.251, 197.625 or
197.630 (1) (1981 Replacement Part) on or before August 9, 1983,
continues to be valid and is not subject to this section.
SECTION 1007. ORS 197.736 is amended to read:
197.736. The { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + }
shall amend goals, in accordance with ORS 197.240 and 197.245,
and amend and adopt rules and guidelines, as necessary, to
implement the provisions of this section and ORS 197.340 and
197.732.
SECTION 1007a. ORS 197.747 is amended to read:
197.747. For the purposes of acknowledgment under ORS 197.251,
{ - board - } review under ORS 197.805 to 197.855, review of a
proposed regional problem-solving agreement under ORS 197.652 to
197.658 or periodic review under ORS 197.628 to 197.650, '
compliance with the goals' means the comprehensive plan and
regulations, on the whole, conform with the purposes of the goals
and any failure to meet individual goal requirements is technical
or minor in nature.
SECTION 1008. ORS 197.763 is amended to read:
197.763. The following procedures shall govern the conduct of
quasi-judicial land use hearings conducted before a local
governing body, planning commission, hearings body or hearings
officer on application for a land use decision and shall be
incorporated into the comprehensive plan and land use
regulations:
(1) An issue which may be the basis for an appeal to the
{ - Land Use Board of Appeals - } { + Oregon Department of
Natural Resources + } shall be raised not later than the close of
the record at or following the final evidentiary hearing on the
proposal before the local government. Such issues shall be raised
and accompanied by statements or evidence sufficient to afford
the governing body, planning commission, hearings body or
hearings officer, and the parties an adequate opportunity to
respond to each issue.
(2)(a) Notice of the hearings governed by this section shall be
provided to the applicant and to owners of record of property on
the most recent property tax assessment roll where such property
is located:
(A) Within 100 feet of the property which is the subject of the
notice where the subject property is wholly or in part within an
urban growth boundary;
(B) Within 250 feet of the property which is the subject of the
notice where the subject property is outside an urban growth
boundary and not within a farm or forest zone; or
(C) Within 500 feet of the property which is the subject of the
notice where the subject property is within a farm or forest
zone.
(b) Notice shall also be provided to any neighborhood or
community organization recognized by the governing body and whose
boundaries include the site.
(c) At the discretion of the applicant, the local government
also shall provide notice to the { - Department of Land
Conservation and Development - } { + Oregon Department of
Natural Resources + }.
(3) The notice provided by the jurisdiction shall:
(a) Explain the nature of the application and the proposed use
or uses which could be authorized;
(b) List the applicable criteria from the ordinance and the
plan that apply to the application at issue;
(c) Set forth the street address or other easily understood
geographical reference to the subject property;
(d) State the date, time and location of the hearing;
(e) State that failure of an issue to be raised in a hearing,
in person or by letter, or failure to provide statements or
evidence sufficient to afford the decision maker an opportunity
to respond to the issue precludes appeal to the { - board - }
{ + department + } based on that issue;
(f) Be mailed at least:
(A) Twenty days before the evidentiary hearing; or
(B) If two or more evidentiary hearings are allowed, 10 days
before the first evidentiary hearing;
(g) Include the name of a local government representative to
contact and the telephone number where additional information may
be obtained;
(h) State that a copy of the application, all documents and
evidence submitted by or on behalf of the applicant and
applicable criteria are available for inspection at no cost and
will be provided at reasonable cost;
(i) State that a copy of the staff report will be available for
inspection at no cost at least seven days prior to the hearing
and will be provided at reasonable cost; and
(j) Include a general explanation of the requirements for
submission of testimony and the procedure for conduct of
hearings.
(4)(a) All documents or evidence relied upon by the applicant
shall be submitted to the local government and be made available
to the public.
(b) Any staff report used at the hearing shall be available at
least seven days prior to the hearing. If additional documents or
evidence are provided by any party, the local government may
allow a continuance or leave the record open to allow the parties
a reasonable opportunity to respond. Any continuance or extension
of the record requested by an applicant shall result in a
corresponding extension of the time limitations of ORS 215.427 or
227.178 and ORS 215.429 or 227.179.
(5) At the commencement of a hearing under a comprehensive plan
or land use regulation, a statement shall be made to those in
attendance that:
(a) Lists the applicable substantive criteria;
(b) States that testimony, arguments and evidence must be
directed toward the criteria described in paragraph (a) of this
subsection or other criteria in the plan or land use regulation
which the person believes to apply to the decision; and
(c) States that failure to raise an issue accompanied by
statements or evidence sufficient to afford the decision maker
and the parties an opportunity to respond to the issue precludes
appeal to the { - board - } { + department + } based on that
issue.
(6)(a) Prior to the conclusion of the initial evidentiary
hearing, any participant may request an opportunity to present
additional evidence, arguments or testimony regarding the
application. The local hearings authority shall grant such
request by continuing the public hearing pursuant to paragraph
(b) of this subsection or leaving the record open for additional
written evidence, arguments or testimony pursuant to paragraph
(c) of this subsection.
(b) If the hearings authority grants a continuance, the hearing
shall be continued to a date, time and place certain at least
seven days from the date of the initial evidentiary hearing. An
opportunity shall be provided at the continued hearing for
persons to present and rebut new evidence, arguments or
testimony. If new written evidence is submitted at the continued
hearing, any person may request, prior to the conclusion of the
continued hearing, that the record be left open for at least
seven days to submit additional written evidence, arguments or
testimony for the purpose of responding to the new written
evidence.
(c) If the hearings authority leaves the record open for
additional written evidence, arguments or testimony, the record
shall be left open for at least seven days. Any participant may
file a written request with the local government for an
opportunity to respond to new evidence submitted during the
period the record was left open. If such a request is filed, the
hearings authority shall reopen the record pursuant to subsection
(7) of this section.
(d) A continuance or extension granted pursuant to this section
shall be subject to the limitations of ORS 215.427 or 227.178 and
ORS 215.429 or 227.179, unless the continuance or extension is
requested or agreed to by the applicant.
(e) Unless waived by the applicant, the local government shall
allow the applicant at least seven days after the record is
closed to all other parties to submit final written arguments in
support of the application. The applicant's final submittal shall
be considered part of the record, but shall not include any new
evidence. This seven-day period shall not be subject to the
limitations of ORS 215.427 or 227.178 and ORS 215.429 or 227.179.
(7) When a local governing body, planning commission, hearings
body or hearings officer reopens a record to admit new evidence,
arguments or testimony, any person may raise new issues which
relate to the new evidence, arguments, testimony or criteria for
decision-making which apply to the matter at issue.
(8) The failure of the property owner to receive notice as
provided in this section shall not invalidate such proceedings if
the local government can demonstrate by affidavit that such
notice was given. The notice provisions of this section shall not
restrict the giving of notice by other means, including posting,
newspaper publication, radio and television.
(9) For purposes of this section:
(a) 'Argument' means assertions and analysis regarding the
satisfaction or violation of legal standards or policy believed
relevant by the proponent to a decision. 'Argument' does not
include facts.
(b) 'Evidence' means facts, documents, data or other
information offered to demonstrate compliance or noncompliance
with the standards believed by the proponent to be relevant to
the decision.
SECTION 1009. ORS 197.768 is amended to read:
197.768. (1) As used in this section, 'special district ' has
the meaning given that term in ORS 197.505.
(2)(a) A local government or special district may adopt a
public facilities strategy if the public facilities strategy:
(A)(i) Is acknowledged under ORS 197.251; or
(ii) Is approved by the { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + }
under ORS 197.628 to 197.650; and
(B) Meets the requirements of this section.
(b) If a special district seeks to implement a public
facilities strategy, that special district is considered a local
government for the purposes of ORS 197.251 and 197.628 to
197.650.
(3) A local government or special district may adopt a public
facilities strategy only if the local government or special
district:
(a) Makes written findings justifying the need for the public
facilities strategy;
(b) Holds a public hearing on the adoption of a public
facilities strategy and the findings that support the adoption of
the public facilities strategy; and
(c) Provides written notice to the { - Department of Land
Conservation and Development - } { + Oregon Department of
Natural Resources + } at least 45 days prior to the final public
hearing that is held to consider the adoption of the public
facilities strategy.
(4) At a minimum, the findings under subsection (3) of this
section must demonstrate that:
(a) There is a rapid increase in the rate or intensity of land
development in a specific geographic area that was unanticipated
at the time the original planning for that area was adopted or
there has been a natural disaster or other catastrophic event in
a specific geographic area;
(b) The total land development expected within the specific
geographic area will exceed the planned or existing capacity of
public facilities; and
(c) The public facilities strategy is structured to ensure that
the necessary supply of housing and commercial and industrial
facilities that will be impacted within the relevant geographic
area is not unreasonably restricted by the adoption of the public
facilities strategy.
(5) A public facilities strategy shall include a clear,
objective and detailed description of actions and practices a
local government or special district may engage in to control the
time and sequence of development approvals in response to the
identified deficiencies in public facilities.
(6) A public facilities strategy shall be effective for no more
than 24 months after the date on which it is adopted, but may be
extended, subject to subsection (7) of this section, provided the
local government or special district adopting the public
facilities strategy holds a public hearing on the proposed
extension and adopts written findings that:
(a) Verify that the problem giving rise to the need for a
public facilities strategy still exists;
(b) Demonstrate that reasonable progress is being made to
alleviate the problem giving rise to the need for a public
facilities strategy; and
(c) Set a specific duration for the extension of the public
facilities strategy.
(7)(a) A local government or special district considering an
extension of a public facilities strategy shall give the
department notice at least 14 days prior to the date of the
public hearing on the extension.
(b) A single extension may not exceed one year, and a public
facilities strategy may not be extended more than three times.
SECTION 1010. ORS 197.840 is amended to read:
197.840. (1) The following periods of delay shall be excluded
from the 77-day period within which the { - board - }
{ + Oregon Department of Natural Resources + } must make a final
decision on a petition under ORS 197.830 (14):
(a) Any period of delay up to 120 days resulting from the
{ - board's - } { + department's + } deferring all or part of
its consideration of a petition for review of a land use decision
or limited land use decision that allegedly violates the goals if
the decision has been:
(A) Submitted for acknowledgment under ORS 197.251; or
(B) Submitted to the { - Department of Land Conservation and
Development - } { + department + } as part of a periodic review
work program task pursuant to ORS 197.628 to 197.650 and not yet
acknowledged.
(b) Any period of delay resulting from a motion, including but
not limited to, a motion disputing the constitutionality of the
decision, standing, ex parte contacts or other procedural
irregularities not shown in the record.
(c) Any reasonable period of delay resulting from a request for
a stay under ORS 197.845.
(d) Any reasonable period of delay resulting from a continuance
granted by { - a member of the board on the member's - }
{ + an officer of the department on the department's + } own
motion or at the request of one of the parties, if the member
granted the continuance on the basis of findings that the ends of
justice served by granting the continuance outweigh the best
interest of the public and the parties in having a decision
within 77 days.
(2) No period of delay resulting from a continuance granted by
the { - board - } { + department + } under subsection (1)(d)
of this section shall be excludable under this section unless the
{ - board - } { + department + } sets forth in the record,
either orally or in writing, its reasons for finding that the
ends of justice served by granting the continuance outweigh the
best interests of the public and the other parties in a decision
within the 77 days. The factors the { - board - }
{ + department + } shall consider in determining whether to
grant a continuance under subsection (1)(d) of this section in
any case are as follows:
(a) Whether the failure to grant a continuance in the
proceeding would be likely to make a continuation of the
proceeding impossible or result in a miscarriage of justice; or
(b) Whether the case is so unusual or so complex, due to the
number of parties or the existence of novel questions of fact or
law, that it is unreasonable to expect adequate consideration of
the issues within the 77-day time limit.
(3) No continuance under subsection (1)(d) of this section
shall be granted because of general congestion of the
{ - board - } { + department + } calendar or lack of diligent
preparation or attention to the case by any member of the
{ - board - } { + department + } or any party.
(4) The { - board - } { + department + } may defer all or
part of its consideration of a land use decision or limited land
use decision described in subsection (1)(a) of this section until
the { - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + } has disposed of the
acknowledgment proceeding described in subsection (1)(a) of this
section. If the { - board - } { + department + } deferred all
or part of its consideration of a decision under this subsection,
the { - board - } { + department + } may grant a stay of the
comprehensive plan provision, land use regulation, limited land
use decision or land use decision under ORS 197.845.
SECTION 1011. ORS 215.209 is amended to read:
215.209. The { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + }
shall develop, in conjunction with local governments and other
state agencies, a computerized database that is capable of
producing county-wide maps that show the diversity of Oregon's
rural lands. The database shall include, at a minimum,
information on soil classifications, forest capabilities,
irrigated lands, croplands, actual farm use, and plan and zone
designations. To create the database, the department shall use
the most current soils information from the United States Natural
Resources Conservation Service, or its successor agency, and may
use any other related information that is readily available.
SECTION 1012. ORS 215.213 is amended to read:
215.213. (1) In counties that have adopted marginal lands
provisions under ORS 197.247 (1991 Edition), the following uses
may be established in any area zoned for exclusive farm use:
(a) Churches and cemeteries in conjunction with churches.
(b) The propagation or harvesting of a forest product.
(c) Utility facilities necessary for public service, including
wetland waste treatment systems but not including commercial
facilities for the purpose of generating electrical power for
public use by sale or transmission towers over 200 feet in
height. A utility facility necessary for public service may be
established as provided in ORS 215.275.
(d) A dwelling on real property used for farm use if the
dwelling is occupied by a relative of the farm operator or the
farm operator's spouse, which means a child, parent, stepparent,
grandchild, grandparent, stepgrandparent, sibling, stepsibling,
niece, nephew or first cousin of either, if the farm operator
does or will require the assistance of the relative in the
management of the farm use and the dwelling is located on the
same lot or parcel as the dwelling of the farm operator.
Notwithstanding ORS 92.010 to 92.192 or the minimum lot or parcel
size requirements under ORS 215.780, if the owner of a dwelling
described in this paragraph obtains construction financing or
other financing secured by the dwelling and the secured party
forecloses on the dwelling, the secured party may also foreclose
on the homesite, as defined in ORS 308A.250, and the foreclosure
shall operate as a partition of the homesite to create a new
parcel.
(e) Nonresidential buildings customarily provided in
conjunction with farm use.
(f) Primary or accessory dwellings customarily provided in
conjunction with farm use. For a primary dwelling, the dwelling
must be on a lot or parcel that is managed as part of a farm
operation and is not smaller than the minimum lot size in a farm
zone with a minimum lot size acknowledged under ORS 197.251.
(g) Operations for the exploration for and production of
geothermal resources as defined by ORS 522.005 and oil and gas as
defined by ORS 520.005, including the placement and operation of
compressors, separators and other customary production equipment
for an individual well adjacent to the wellhead. Any activities
or construction relating to such operations shall not be a basis
for an exception under ORS 197.732 (2)(a) or (b).
(h) Operations for the exploration for minerals as defined by
ORS 517.750. Any activities or construction relating to such
operations shall not be a basis for an exception under ORS
197.732 (2)(a) or (b).
(i) One manufactured dwelling or recreational vehicle, or the
temporary residential use of an existing building, in conjunction
with an existing dwelling as a temporary use for the term of a
hardship suffered by the existing resident or a relative of the
resident. Within three months of the end of the hardship, the
manufactured dwelling or recreational vehicle shall be removed or
demolished or, in the case of an existing building, the building
shall be removed, demolished or returned to an allowed
nonresidential use. The governing body or its designee shall
provide for periodic review of the hardship claimed under this
paragraph. A temporary residence approved under this paragraph is
not eligible for replacement under paragraph (q) of this
subsection.
(j) Climbing and passing lanes within the right of way existing
as of July 1, 1987.
(k) Reconstruction or modification of public roads and
highways, including the placement of utility facilities overhead
and in the subsurface of public roads and highways along the
public right of way, but not including the addition of travel
lanes, where no removal or displacement of buildings would occur,
or no new land parcels result.
(L) Temporary public road and highway detours that will be
abandoned and restored to original condition or use at such time
as no longer needed.
(m) Minor betterment of existing public road and highway
related facilities, such as maintenance yards, weigh stations and
rest areas, within right of way existing as of July 1, 1987, and
contiguous public-owned property utilized to support the
operation and maintenance of public roads and highways.
(n) A replacement dwelling to be used in conjunction with farm
use if the existing dwelling has been listed in a county
inventory as historic property as defined in ORS 358.480.
(o) Creation, restoration or enhancement of wetlands.
(p) A winery, as described in ORS 215.452.
(q) Alteration, restoration or replacement of a lawfully
established dwelling that:
(A) Has intact exterior walls and roof structure;
(B) Has indoor plumbing consisting of a kitchen sink, toilet
and bathing facilities connected to a sanitary waste disposal
system;
(C) Has interior wiring for interior lights;
(D) Has a heating system; and
(E) In the case of replacement:
(i) Is removed, demolished or converted to an allowable
nonresidential use within three months of the completion of the
replacement dwelling. A replacement dwelling may be sited on any
part of the same lot or parcel. A dwelling established under this
paragraph shall comply with all applicable siting standards.
However, the standards shall not be applied in a manner that
prohibits the siting of the dwelling. If the dwelling to be
replaced is located on a portion of the lot or parcel not zoned
for exclusive farm use, the applicant, as a condition of
approval, shall execute and record in the deed records for the
county where the property is located a deed restriction
prohibiting the siting of a dwelling on that portion of the lot
or parcel. The restriction imposed shall be irrevocable unless a
statement of release is placed in the deed records for the
county. The release shall be signed by the county or its designee
and state that the provisions of this paragraph regarding
replacement dwellings have changed to allow the siting of another
dwelling. The county planning director or the director's designee
shall maintain a record of the lots and parcels that do not
qualify for the siting of a new dwelling under the provisions of
this paragraph, including a copy of the deed restrictions and
release statements filed under this paragraph; and
(ii) For which the applicant has requested a deferred
replacement permit, is removed or demolished within three months
after the deferred replacement permit is issued. A deferred
replacement permit allows construction of the replacement
dwelling at any time. If, however, the established dwelling is
not removed or demolished within three months after the deferred
replacement permit is issued, the permit becomes void. The
replacement dwelling must comply with applicable building codes,
plumbing codes, sanitation codes and other requirements relating
to health and safety or to siting at the time of construction. A
deferred replacement permit may not be transferred, by sale or
otherwise, except by the applicant to the spouse or a child of
the applicant.
(r) Farm stands if:
(A) The structures are designed and used for the sale of farm
crops or livestock grown on the farm operation, or grown on the
farm operation and other farm operations in the local
agricultural area, including the sale of retail incidental items
and fee-based activity to promote the sale of farm crops or
livestock sold at the farm stand if the annual sale of incidental
items and fees from promotional activity do not make up more than
25 percent of the total annual sales of the farm stand; and
(B) The farm stand does not include structures designed for
occupancy as a residence or for activity other than the sale of
farm crops or livestock and does not include structures for
banquets, public gatherings or public entertainment.
(s) An armed forces reserve center, if the center is within
one-half mile of a community college. For purposes of this
paragraph, 'armed forces reserve center' includes an armory or
National Guard support facility.
(t) A site for the takeoff and landing of model aircraft,
including such buildings or facilities as may reasonably be
necessary. Buildings or facilities shall not be more than 500
square feet in floor area or placed on a permanent foundation
unless the building or facility preexisted the use approved under
this paragraph. The site shall not include an aggregate surface
or hard surface area unless the surface preexisted the use
approved under this paragraph. An owner of property used for the
purpose authorized in this paragraph may charge a person
operating the use on the property rent for the property. An
operator may charge users of the property a fee that does not
exceed the operator's cost to maintain the property, buildings
and facilities. As used in this paragraph, 'model aircraft' means
a small-scale version of an airplane, glider, helicopter,
dirigible or balloon that is used or intended to be used for
flight and is controlled by radio, lines or design by a person on
the ground.
(u) A facility for the processing of farm crops, or the
production of biofuel as defined in ORS 315.141, that is located
on a farm operation that provides at least one-quarter of the
farm crops processed at the facility. The building established
for the processing facility shall not exceed 10,000 square feet
of floor area exclusive of the floor area designated for
preparation, storage or other farm use or devote more than 10,000
square feet to the processing activities within another building
supporting farm uses. A processing facility shall comply with all
applicable siting standards but the standards shall not be
applied in a manner that prohibits the siting of the processing
facility.
(v) Fire service facilities providing rural fire protection
services.
(w) Irrigation canals, delivery lines and those structures and
accessory operational facilities associated with a district as
defined in ORS 540.505.
(x) Utility facility service lines. Utility facility service
lines are utility lines and accessory facilities or structures
that end at the point where the utility service is received by
the customer and that are located on one or more of the
following:
(A) A public right of way;
(B) Land immediately adjacent to a public right of way,
provided the written consent of all adjacent property owners has
been obtained; or
(C) The property to be served by the utility.
(y) Subject to the issuance of a license, permit or other
approval by the Department of Environmental Quality under ORS
454.695, 459.205, 468B.050, 468B.053 or 468B.055, or in
compliance with rules adopted under ORS 468B.095, and as provided
in ORS 215.246 to 215.251, the land application of reclaimed
water, agricultural or industrial process water or biosolids for
agricultural, horticultural or silvicultural production, or for
irrigation in connection with a use allowed in an exclusive farm
use zone under this chapter.
(2) In counties that have adopted marginal lands provisions
under ORS 197.247 (1991 Edition), the following uses may be
established in any area zoned for exclusive farm use subject to
ORS 215.296:
(a) A primary dwelling in conjunction with farm use or the
propagation or harvesting of a forest product on a lot or parcel
that is managed as part of a farm operation or woodlot if the
farm operation or woodlot:
(A) Consists of 20 or more acres; and
(B) Is not smaller than the average farm or woodlot in the
county producing at least $2,500 in annual gross income from the
crops, livestock or forest products to be raised on the farm
operation or woodlot.
(b) A primary dwelling in conjunction with farm use or the
propagation or harvesting of a forest product on a lot or parcel
that is managed as part of a farm operation or woodlot smaller
than required under paragraph (a) of this subsection, if the lot
or parcel:
(A) Has produced at least $20,000 in annual gross farm income
in two consecutive calendar years out of the three calendar years
before the year in which the application for the dwelling was
made or is planted in perennials capable of producing upon
harvest an average of at least $20,000 in annual gross farm
income; or
(B) Is a woodlot capable of producing an average over the
growth cycle of $20,000 in gross annual income.
(c) Commercial activities that are in conjunction with farm
use, including the processing of farm crops into biofuel not
permitted under ORS 215.203 (2)(b)(L) or subsection (1)(u) of
this section.
(d) Operations conducted for:
(A) Mining and processing of geothermal resources as defined by
ORS 522.005 and oil and gas as defined by ORS 520.005, not
otherwise permitted under subsection (1)(g) of this section;
(B) Mining, crushing or stockpiling of aggregate and other
mineral and other subsurface resources subject to ORS 215.298;
(C) Processing, as defined by ORS 517.750, of aggregate into
asphalt or portland cement; and
(D) Processing of other mineral resources and other subsurface
resources.
(e) Community centers owned by a governmental agency or a
nonprofit community organization and operated primarily by and
for residents of the local rural community, hunting and fishing
preserves, public and private parks, playgrounds and campgrounds.
Subject to the approval of the county governing body or its
designee, a private campground may provide yurts for overnight
camping. No more than one-third or a maximum of 10 campsites,
whichever is smaller, may include a yurt. The yurt shall be
located on the ground or on a wood floor with no permanent
foundation. Upon request of a county governing body, the
{ - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + } may provide by rule
for an increase in the number of yurts allowed on all or a
portion of the campgrounds in a county if the commission
determines that the increase will comply with the standards
described in ORS 215.296 (1). A public park or campground may be
established as provided under ORS 195.120. As used in this
paragraph, 'yurt' means a round, domed shelter of cloth or canvas
on a collapsible frame with no plumbing, sewage disposal hookup
or internal cooking appliance.
(f) Golf courses on land determined not to be high-value
farmland as defined in ORS 195.300.
(g) Commercial utility facilities for the purpose of generating
power for public use by sale.
(h) Personal-use airports for airplanes and helicopter pads,
including associated hangar, maintenance and service facilities.
A personal-use airport as used in this section means an airstrip
restricted, except for aircraft emergencies, to use by the owner,
and, on an infrequent and occasional basis, by invited guests,
and by commercial aviation activities in connection with
agricultural operations. No aircraft may be based on a
personal-use airport other than those owned or controlled by the
owner of the airstrip. Exceptions to the activities permitted
under this definition may be granted through waiver action by the
Oregon Department of Aviation in specific instances. A
personal-use airport lawfully existing as of September 13, 1975,
shall continue to be permitted subject to any applicable rules of
the Oregon Department of Aviation.
(i) A facility for the primary processing of forest products,
provided that such facility is found to not seriously interfere
with accepted farming practices and is compatible with farm uses
described in ORS 215.203 (2). Such a facility may be approved for
a one-year period which is renewable. These facilities are
intended to be only portable or temporary in nature. The primary
processing of a forest product, as used in this section, means
the use of a portable chipper or stud mill or other similar
methods of initial treatment of a forest product in order to
enable its shipment to market. Forest products, as used in this
section, means timber grown upon a parcel of land or contiguous
land where the primary processing facility is located.
(j) A site for the disposal of solid waste approved by the
governing body of a city or county or both and for which a permit
has been granted under ORS 459.245 by the Department of
Environmental Quality together with equipment, facilities or
buildings necessary for its operation.
(k) Dog kennels.
(L) Residential homes as defined in ORS 197.660, in existing
dwellings.
(m) The propagation, cultivation, maintenance and harvesting of
aquatic species that are not under the jurisdiction of the
{ - State Fish and Wildlife Commission or insect species.
Insect species shall not include any species under quarantine - }
{ + Oregon Department of Natural Resources or insect species
that are not quarantined + }by the State Department of
Agriculture or the United States Department of Agriculture. The
county shall provide notice of all applications under this
paragraph to the State Department of Agriculture. Notice shall be
provided in accordance with the county's land use regulations but
shall be mailed at least 20 calendar days prior to any
administrative decision or initial public hearing on the
application.
(n) Home occupations as provided in ORS 215.448.
(o) Transmission towers over 200 feet in height.
(p) Construction of additional passing and travel lanes
requiring the acquisition of right of way but not resulting in
the creation of new land parcels.
(q) Reconstruction or modification of public roads and highways
involving the removal or displacement of buildings but not
resulting in the creation of new land parcels.
(r) Improvement of public road and highway related facilities
such as maintenance yards, weigh stations and rest areas, where
additional property or right of way is required but not resulting
in the creation of new land parcels.
(s) A destination resort that is approved consistent with the
requirements of any statewide planning goal relating to the
siting of a destination resort.
(t) Room and board arrangements for a maximum of five unrelated
persons in existing residences.
(u) A living history museum related to resource based
activities owned and operated by a governmental agency or a local
historical society, together with limited commercial activities
and facilities that are directly related to the use and enjoyment
of the museum and located within authentic buildings of the
depicted historic period or the museum administration building,
if areas other than an exclusive farm use zone cannot accommodate
the museum and related activities or if the museum administration
buildings and parking lot are located within one quarter mile of
the metropolitan urban growth boundary. As used in this
paragraph:
(A) 'Living history museum' means a facility designed to depict
and interpret everyday life and culture of some specific historic
period using authentic buildings, tools, equipment and people to
simulate past activities and events; and
(B) 'Local historical society' means the local historical
society, recognized as such by the county governing body and
organized under ORS chapter 65.
(v) Operations for the extraction and bottling of water.
(w) An aerial fireworks display business that has been in
continuous operation at its current location within an exclusive
farm use zone since December 31, 1986, and possesses a
wholesaler's permit to sell or provide fireworks.
(x) A landscape contracting business, as defined in ORS
671.520, or a business providing landscape architecture services,
as described in ORS 671.318, if the business is pursued in
conjunction with the growing and marketing of nursery stock on
the land that constitutes farm use.
(y) Public or private schools for kindergarten through grade
12, including all buildings essential to the operation of a
school, primarily for residents of the rural area in which the
school is located.
(3) In counties that have adopted marginal lands provisions
under ORS 197.247 (1991 Edition), a single-family residential
dwelling not provided in conjunction with farm use may be
established on a lot or parcel with soils predominantly in
capability classes IV through VIII as determined by the
Agricultural Capability Classification System in use by the
United States Department of Agriculture Soil Conservation Service
on October 15, 1983. A proposed dwelling is subject to approval
of the governing body or its designee in any area zoned for
exclusive farm use upon written findings showing all of the
following:
(a) The dwelling or activities associated with the dwelling
will not force a significant change in or significantly increase
the cost of accepted farming practices on nearby lands devoted to
farm use.
(b) The dwelling is situated upon generally unsuitable land for
the production of farm crops and livestock, considering the
terrain, adverse soil or land conditions, drainage and flooding,
location and size of the tract. A lot or parcel shall not be
considered unsuitable solely because of its size or location if
it can reasonably be put to farm use in conjunction with other
land.
(c) Complies with such other conditions as the governing body
or its designee considers necessary.
(4) In counties that have adopted marginal lands provisions
under ORS 197.247 (1991 Edition), one single-family dwelling, not
provided in conjunction with farm use, may be established in any
area zoned for exclusive farm use on a lot or parcel described in
subsection (7) of this section that is not larger than three
acres upon written findings showing:
(a) The dwelling or activities associated with the dwelling
will not force a significant change in or significantly increase
the cost of accepted farming practices on nearby lands devoted to
farm use;
(b) If the lot or parcel is located within the Willamette River
Greenway, a floodplain or a { - geological - }
{ + geologic + } hazard area, the dwelling complies with
conditions imposed by local ordinances relating specifically to
the Willamette River Greenway, floodplains or
{ - geological - } { + geologic + } hazard areas, whichever is
applicable; and
(c) The dwelling complies with other conditions considered
necessary by the governing body or its designee.
(5) Upon receipt of an application for a permit under
subsection (4) of this section, the governing body shall notify:
(a) Owners of land that is within 250 feet of the lot or parcel
on which the dwelling will be established; and
(b) Persons who have requested notice of such applications and
who have paid a reasonable fee imposed by the county to cover the
cost of such notice.
(6) The notice required in subsection (5) of this section shall
specify that persons have 15 days following the date of postmark
of the notice to file a written objection on the grounds only
that the dwelling or activities associated with it would force a
significant change in or significantly increase the cost of
accepted farming practices on nearby lands devoted to farm use.
If no objection is received, the governing body or its designee
shall approve or disapprove the application. If an objection is
received, the governing body shall set the matter for hearing in
the manner prescribed in ORS 215.402 to 215.438. The governing
body may charge the reasonable costs of the notice required by
subsection (5)(a) of this section to the applicant for the permit
requested under subsection (4) of this section.
(7) Subsection (4) of this section applies to a lot or parcel
lawfully created between January 1, 1948, and July 1, 1983. For
the purposes of this section:
(a) Only one lot or parcel exists if:
(A) A lot or parcel described in this section is contiguous to
one or more lots or parcels described in this section; and
(B) On July 1, 1983, greater than possessory interests are held
in those contiguous lots, parcels or lots and parcels by the same
person, spouses or a single partnership or business entity,
separately or in tenancy in common.
(b) 'Contiguous' means lots, parcels or lots and parcels that
have a common boundary, including but not limited to, lots,
parcels or lots and parcels separated only by a public road.
(8) A person who sells or otherwise transfers real property in
an exclusive farm use zone may retain a life estate in a dwelling
on that property and in a tract of land under and around the
dwelling.
(9) No final approval of a nonfarm use under this section shall
be given unless any additional taxes imposed upon the change in
use have been paid.
(10) Roads, highways and other transportation facilities and
improvements not allowed under subsections (1) and (2) of this
section may be established, subject to the approval of the
governing body or its designee, in areas zoned for exclusive farm
use subject to:
(a) Adoption of an exception to the goal related to
agricultural lands and to any other applicable goal with which
the facility or improvement does not comply; or
(b) ORS 215.296 for those uses identified by rule of the
{ - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + } as provided in
section 3, chapter 529, Oregon Laws 1993.
SECTION 1013. ORS 215.263 is amended to read:
215.263. (1) Any proposed division of land included within an
exclusive farm use zone resulting in the creation of one or more
parcels of land shall be reviewed and approved or disapproved by
the governing body or its designee of the county in which the
land is situated. The governing body of a county by ordinance
shall require such prior review and approval for such divisions
of land within exclusive farm use zones established within the
county.
(2) The governing body of a county or its designee may approve
a proposed division of land to create parcels for farm use as
defined in ORS 215.203 if it finds:
(a) That the proposed division of land is appropriate for the
continuation of the existing commercial agricultural enterprise
within the area; or
(b) The parcels created by the proposed division are not
smaller than the minimum size established under ORS 215.780.
(3) The governing body of a county or its designee may approve
a proposed division of land in an exclusive farm use zone for
nonfarm uses, except dwellings, set out in ORS 215.213 (2) or
215.283 (2) if it finds that the parcel for the nonfarm use is
not larger than the minimum size necessary for the use. The
governing body may establish other criteria as it considers
necessary.
(4) In western Oregon, as defined in ORS 321.257, but not in
the Willamette Valley, as defined in ORS 215.010, the governing
body of a county or its designee:
(a) May approve a division of land in an exclusive farm use
zone to create up to two new parcels smaller than the minimum
size established under ORS 215.780, each to contain a dwelling
not provided in conjunction with farm use if:
(A) The nonfarm dwellings have been approved under ORS 215.213
(3) or 215.284 (2) or (3);
(B) The parcels for the nonfarm dwellings are divided from a
lot or parcel that was lawfully created prior to July 1, 2001;
(C) The parcels for the nonfarm dwellings are divided from a
lot or parcel that complies with the minimum size established
under ORS 215.780;
(D) The remainder of the original lot or parcel that does not
contain the nonfarm dwellings complies with the minimum size
established under ORS 215.780; and
(E) The parcels for the nonfarm dwellings are generally
unsuitable for the production of farm crops and livestock or
merchantable tree species considering the terrain, adverse soil
or land conditions, drainage or flooding, vegetation, location
and size of the tract. A parcel may not be considered unsuitable
based solely on size or location if the parcel can reasonably be
put to farm or forest use in conjunction with other land.
(b) May approve a division of land in an exclusive farm use
zone to divide a lot or parcel into two parcels, each to contain
one dwelling not provided in conjunction with farm use if:
(A) The nonfarm dwellings have been approved under ORS 215.284
(2) or (3);
(B) The parcels for the nonfarm dwellings are divided from a
lot or parcel that was lawfully created prior to July 1, 2001;
(C) The parcels for the nonfarm dwellings are divided from a
lot or parcel that is equal to or smaller than the minimum size
established under ORS 215.780 but equal to or larger than 40
acres;
(D) The parcels for the nonfarm dwellings are:
(i) Not capable of producing more than at least 50 cubic feet
per acre per year of wood fiber; and
(ii) Composed of at least 90 percent Class VI through VIII
soils;
(E) The parcels for the nonfarm dwellings do not have
established water rights for irrigation; and
(F) The parcels for the nonfarm dwellings are generally
unsuitable for the production of farm crops and livestock or
merchantable tree species considering the terrain, adverse soil
or land conditions, drainage or flooding, vegetation, location
and size of the tract. A parcel may not be considered unsuitable
based solely on size or location if the parcel can reasonably be
put to farm or forest use in conjunction with other land.
(5) In eastern Oregon, as defined in ORS 321.805, the governing
body of a county or its designee:
(a) May approve a division of land in an exclusive farm use
zone to create up to two new parcels smaller than the minimum
size established under ORS 215.780, each to contain a dwelling
not provided in conjunction with farm use if:
(A) The nonfarm dwellings have been approved under ORS 215.284
(7);
(B) The parcels for the nonfarm dwellings are divided from a
lot or parcel that was lawfully created prior to July 1, 2001;
(C) The parcels for the nonfarm dwellings are divided from a
lot or parcel that complies with the minimum size established
under ORS 215.780;
(D) The remainder of the original lot or parcel that does not
contain the nonfarm dwellings complies with the minimum size
established under ORS 215.780; and
(E) The parcels for the nonfarm dwellings are generally
unsuitable for the production of farm crops and livestock or
merchantable tree species considering the terrain, adverse soil
or land conditions, drainage or flooding, vegetation, location
and size of the tract. A parcel may not be considered unsuitable
based solely on size or location if the parcel can reasonably be
put to farm or forest use in conjunction with other land.
(b) May approve a division of land in an exclusive farm use
zone to divide a lot or parcel into two parcels, each to contain
one dwelling not provided in conjunction with farm use if:
(A) The nonfarm dwellings have been approved under ORS 215.284
(7);
(B) The parcels for the nonfarm dwellings are divided from a
lot or parcel that was lawfully created prior to July 1, 2001;
(C) The parcels for the nonfarm dwellings are divided from a
lot or parcel that is equal to or smaller than the minimum size
established under ORS 215.780 but equal to or larger than 40
acres;
(D) The parcels for the nonfarm dwellings are:
(i) Not capable of producing more than at least 20 cubic feet
per acre per year of wood fiber; and
(ii) Either composed of at least 90 percent Class VII and VIII
soils, or composed of at least 90 percent Class VI through VIII
soils and are not capable of producing adequate herbaceous forage
for grazing livestock. The { - Land Conservation and
Development Commission - } { + Oregon Natural Resources
Commission + }, in cooperation with the State Department of
Agriculture and other interested persons, may establish by rule
objective criteria for identifying units of land that are not
capable of producing adequate herbaceous forage for grazing
livestock. In developing the criteria, the commission shall use
the latest information from the United States Natural Resources
Conservation Service and consider costs required to utilize
grazing lands that differ in acreage and productivity level;
(E) The parcels for the nonfarm dwellings do not have
established water rights for irrigation; and
(F) The parcels for the nonfarm dwellings are generally
unsuitable for the production of farm crops and livestock or
merchantable tree species considering the terrain, adverse soil
or land conditions, drainage or flooding, vegetation, location
and size of the tract. A parcel may not be considered unsuitable
based solely on size or location if the parcel can reasonably be
put to farm or forest use in conjunction with other land.
(6) This section does not apply to the creation or sale of
cemetery lots, if a cemetery is within the boundaries designated
for a farm use zone at the time the zone is established.
(7) This section does not apply to divisions of land resulting
from lien foreclosures or divisions of land resulting from
foreclosure of recorded contracts for the sale of real property.
(8) The governing body of a county may not approve any proposed
division of a lot or parcel described in ORS 215.213 (1)(d) or
(i), 215.283 (1)(d) or (2)(L) or 215.284 (1), or a proposed
division that separates a processing facility from the farm
operation specified in ORS 215.213 (1)(u) or 215.283 (1)(r).
(9) The governing body of a county may approve a proposed
division of land in an exclusive farm use zone to create a parcel
with an existing dwelling to be used:
(a) As a residential home as described in ORS 197.660 (2) only
if the dwelling has been approved under ORS 215.213 (3) or
215.284 (1), (2), (3), (4) or (7); and
(b) For historic property that meets the requirements of ORS
215.213 (1)(n) and 215.283 (1)(L).
(10)(a) Notwithstanding ORS 215.780, the governing body of a
county or its designee may approve a proposed division of land
provided:
(A) The land division is for the purpose of allowing a provider
of public parks or open space, or a not-for-profit land
conservation organization, to purchase at least one of the
resulting parcels; and
(B) A parcel created by the land division that contains a
dwelling is large enough to support continued residential use of
the parcel.
(b) A parcel created pursuant to this subsection that does not
contain a dwelling:
(A) Is not eligible for siting a dwelling, except as may be
authorized under ORS 195.120;
(B) May not be considered in approving or denying an
application for siting any other dwelling;
(C) May not be considered in approving a redesignation or
rezoning of forestlands except for a redesignation or rezoning to
allow a public park, open space or other natural resource use;
and
(D) May not be smaller than 25 acres unless the purpose of the
land division is:
(i) To facilitate the creation of a wildlife or pedestrian
corridor or the implementation of a wildlife habitat protection
plan; or
(ii) To allow a transaction in which at least one party is a
public park or open space provider, or a not-for-profit land
conservation organization, that has cumulative ownership of at
least 2,000 acres of open space or park property.
(11) The governing body of a county or its designee may approve
a division of land smaller than the minimum lot or parcel size
described in ORS 215.780 (1) and (2) in an exclusive farm use
zone provided:
(a) The division is for the purpose of establishing a church,
including cemeteries in conjunction with the church;
(b) The church has been approved under ORS 215.213 (1) or
215.283 (1);
(c) The newly created lot or parcel is not larger than five
acres; and
(d) The remaining lot or parcel, not including the church,
meets the minimum lot or parcel size described in ORS 215.780 (1)
and (2) either by itself or after it is consolidated with another
lot or parcel.
(12) The governing body of a county may not approve a division
of land for nonfarm use under subsection (3), (4), (5), (9), (10)
or (11) of this section unless any additional tax imposed for the
change in use has been paid.
(13) Parcels used or to be used for training or stabling
facilities may not be considered appropriate to maintain the
existing commercial agricultural enterprise in an area where
other types of agriculture occur.
SECTION 1014. ORS 215.275 is amended to read:
215.275. (1) A utility facility established under ORS 215.213
(1)(c) or 215.283 (1)(c) is necessary for public service if the
facility must be sited in an exclusive farm use zone in order to
provide the service.
(2) To demonstrate that a utility facility is necessary, an
applicant for approval under ORS 215.213 (1)(c) or 215.283 (1)(c)
must show that reasonable alternatives have been considered and
that the facility must be sited in an exclusive farm use zone due
to one or more of the following factors:
(a) Technical and engineering feasibility;
(b) The proposed facility is locationally dependent. A utility
facility is locationally dependent if it must cross land in one
or more areas zoned for exclusive farm use in order to achieve a
reasonably direct route or to meet unique geographical needs that
cannot be satisfied on other lands;
(c) Lack of available urban and nonresource lands;
(d) Availability of existing rights of way;
(e) Public health and safety; and
(f) Other requirements of state or federal agencies.
(3) Costs associated with any of the factors listed in
subsection (2) of this section may be considered, but cost alone
may not be the only consideration in determining that a utility
facility is necessary for public service. Land costs shall not be
included when considering alternative locations for substantially
similar utility facilities. The { - Land Conservation and
Development Commission - } { + Oregon Natural Resources
Commission + } shall determine by rule how land costs may be
considered when evaluating the siting of utility facilities that
are not substantially similar.
(4) The owner of a utility facility approved under ORS 215.213
(1)(c) or 215.283 (1)(c) shall be responsible for restoring, as
nearly as possible, to its former condition any agricultural land
and associated improvements that are damaged or otherwise
disturbed by the siting, maintenance, repair or reconstruction of
the facility. Nothing in this section shall prevent the owner of
the utility facility from requiring a bond or other security from
a contractor or otherwise imposing on a contractor the
responsibility for restoration.
(5) The governing body of the county or its designee shall
impose clear and objective conditions on an application for
utility facility siting under ORS 215.213 (1)(c) or 215.283
(1)(c) to mitigate and minimize the impacts of the proposed
facility, if any, on surrounding lands devoted to farm use in
order to prevent a significant change in accepted farm practices
or a significant increase in the cost of farm practices on the
surrounding farmlands.
(6) The provisions of subsections (2) to (5) of this section do
not apply to interstate natural gas pipelines and associated
facilities authorized by and subject to regulation by the Federal
Energy Regulatory Commission.
SECTION 1015. ORS 215.278 is amended to read:
215.278. (1) The { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + }
shall revise administrative rules regarding dwellings customarily
provided in conjunction with farm use to allow, under ORS 215.213
and 215.283, the establishment of accessory dwellings needed to
provide opportunities for farmworker housing for individuals
primarily engaged in farm use whose assistance in the management
of the farm is or will be required by the farm operator on the
farm unit.
(2) As used in this section, 'farm unit' means the contiguous
and noncontiguous tracts in common ownership used by the farm
operator for farm use as defined in ORS 215.203.
SECTION 1016. ORS 215.282 is amended to read:
215.282. The { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + }
shall consider the findings of ORS 215.281 and adopt rules that
provide standards for the review of a primary or accessory
dwelling customarily provided in conjunction with a commercial
dairy farm. Notwithstanding any other administrative rule
establishing a gross farm income standard, the rules adopted
under this section shall allow the siting of a dwelling on a
commercial dairy farm prior to the dairy earning any gross farm
income.
SECTION 1017. ORS 215.283 is amended to read:
215.283. (1) The following uses may be established in any area
zoned for exclusive farm use:
(a) Churches and cemeteries in conjunction with churches.
(b) The propagation or harvesting of a forest product.
(c) Utility facilities necessary for public service, including
wetland waste treatment systems but not including commercial
facilities for the purpose of generating electrical power for
public use by sale or transmission towers over 200 feet in
height. A utility facility necessary for public service may be
established as provided in ORS 215.275.
(d) A dwelling on real property used for farm use if the
dwelling is occupied by a relative of the farm operator or the
farm operator's spouse, which means a child, parent, stepparent,
grandchild, grandparent, stepgrandparent, sibling, stepsibling,
niece, nephew or first cousin of either, if the farm operator
does or will require the assistance of the relative in the
management of the farm use and the dwelling is located on the
same lot or parcel as the dwelling of the farm operator.
Notwithstanding ORS 92.010 to 92.192 or the minimum lot or parcel
size requirements under ORS 215.780, if the owner of a dwelling
described in this paragraph obtains construction financing or
other financing secured by the dwelling and the secured party
forecloses on the dwelling, the secured party may also foreclose
on the homesite, as defined in ORS 308A.250, and the foreclosure
shall operate as a partition of the homesite to create a new
parcel.
(e) Primary or accessory dwellings and other buildings
customarily provided in conjunction with farm use.
(f) Operations for the exploration for and production of
geothermal resources as defined by ORS 522.005 and oil and gas as
defined by ORS 520.005, including the placement and operation of
compressors, separators and other customary production equipment
for an individual well adjacent to the wellhead. Any activities
or construction relating to such operations shall not be a basis
for an exception under ORS 197.732 (2)(a) or (b).
(g) Operations for the exploration for minerals as defined by
ORS 517.750. Any activities or construction relating to such
operations shall not be a basis for an exception under ORS
197.732 (2)(a) or (b).
(h) Climbing and passing lanes within the right of way existing
as of July 1, 1987.
(i) Reconstruction or modification of public roads and
highways, including the placement of utility facilities overhead
and in the subsurface of public roads and highways along the
public right of way, but not including the addition of travel
lanes, where no removal or displacement of buildings would occur,
or no new land parcels result.
(j) Temporary public road and highway detours that will be
abandoned and restored to original condition or use at such time
as no longer needed.
(k) Minor betterment of existing public road and highway
related facilities such as maintenance yards, weigh stations and
rest areas, within right of way existing as of July 1, 1987, and
contiguous public-owned property utilized to support the
operation and maintenance of public roads and highways.
(L) A replacement dwelling to be used in conjunction with farm
use if the existing dwelling has been listed in a county
inventory as historic property as defined in ORS 358.480.
(m) Creation, restoration or enhancement of wetlands.
(n) A winery, as described in ORS 215.452.
(o) Farm stands if:
(A) The structures are designed and used for the sale of farm
crops or livestock grown on the farm operation, or grown on the
farm operation and other farm operations in the local
agricultural area, including the sale of retail incidental items
and fee-based activity to promote the sale of farm crops or
livestock sold at the farm stand if the annual sale of incidental
items and fees from promotional activity do not make up more than
25 percent of the total annual sales of the farm stand; and
(B) The farm stand does not include structures designed for
occupancy as a residence or for activity other than the sale of
farm crops or livestock and does not include structures for
banquets, public gatherings or public entertainment.
(p) Alteration, restoration or replacement of a lawfully
established dwelling that:
(A) Has intact exterior walls and roof structure;
(B) Has indoor plumbing consisting of a kitchen sink, toilet
and bathing facilities connected to a sanitary waste disposal
system;
(C) Has interior wiring for interior lights;
(D) Has a heating system; and
(E) In the case of replacement:
(i) Is removed, demolished or converted to an allowable
nonresidential use within three months of the completion of the
replacement dwelling. A replacement dwelling may be sited on any
part of the same lot or parcel. A dwelling established under this
paragraph shall comply with all applicable siting standards.
However, the standards shall not be applied in a manner that
prohibits the siting of the dwelling. If the dwelling to be
replaced is located on a portion of the lot or parcel not zoned
for exclusive farm use, the applicant, as a condition of
approval, shall execute and record in the deed records for the
county where the property is located a deed restriction
prohibiting the siting of a dwelling on that portion of the lot
or parcel. The restriction imposed shall be irrevocable unless a
statement of release is placed in the deed records for the
county. The release shall be signed by the county or its designee
and state that the provisions of this paragraph regarding
replacement dwellings have changed to allow the siting of another
dwelling. The county planning director or the director's designee
shall maintain a record of the lots and parcels that do not
qualify for the siting of a new dwelling under the provisions of
this paragraph, including a copy of the deed restrictions and
release statements filed under this paragraph; and
(ii) For which the applicant has requested a deferred
replacement permit, is removed or demolished within three months
after the deferred replacement permit is issued. A deferred
replacement permit allows construction of the replacement
dwelling at any time. If, however, the established dwelling is
not removed or demolished within three months after the deferred
replacement permit is issued, the permit becomes void. The
replacement dwelling must comply with applicable building codes,
plumbing codes, sanitation codes and other requirements relating
to health and safety or to siting at the time of construction. A
deferred replacement permit may not be transferred, by sale or
otherwise, except by the applicant to the spouse or a child of
the applicant.
(q) A site for the takeoff and landing of model aircraft,
including such buildings or facilities as may reasonably be
necessary. Buildings or facilities shall not be more than 500
square feet in floor area or placed on a permanent foundation
unless the building or facility preexisted the use approved under
this paragraph. The site shall not include an aggregate surface
or hard surface area unless the surface preexisted the use
approved under this paragraph. An owner of property used for the
purpose authorized in this paragraph may charge a person
operating the use on the property rent for the property. An
operator may charge users of the property a fee that does not
exceed the operator's cost to maintain the property, buildings
and facilities. As used in this paragraph, 'model aircraft' means
a small-scale version of an airplane, glider, helicopter,
dirigible or balloon that is used or intended to be used for
flight and is controlled by radio, lines or design by a person on
the ground.
(r) A facility for the processing of farm crops, or the
production of biofuel as defined in ORS 315.141, that is located
on a farm operation that provides at least one-quarter of the
farm crops processed at the facility. The building established
for the processing facility shall not exceed 10,000 square feet
of floor area exclusive of the floor area designated for
preparation, storage or other farm use or devote more than 10,000
square feet to the processing activities within another building
supporting farm uses. A processing facility shall comply with all
applicable siting standards but the standards shall not be
applied in a manner that prohibits the siting of the processing
facility.
(s) Fire service facilities providing rural fire protection
services.
(t) Irrigation canals, delivery lines and those structures and
accessory operational facilities associated with a district as
defined in ORS 540.505.
(u) Utility facility service lines. Utility facility service
lines are utility lines and accessory facilities or structures
that end at the point where the utility service is received by
the customer and that are located on one or more of the
following:
(A) A public right of way;
(B) Land immediately adjacent to a public right of way,
provided the written consent of all adjacent property owners has
been obtained; or
(C) The property to be served by the utility.
(v) Subject to the issuance of a license, permit or other
approval by the Department of Environmental Quality under ORS
454.695, 459.205, 468B.050, 468B.053 or 468B.055, or in
compliance with rules adopted under ORS 468B.095, and as provided
in ORS 215.246 to 215.251, the land application of reclaimed
water, agricultural or industrial process water or biosolids for
agricultural, horticultural or silvicultural production, or for
irrigation in connection with a use allowed in an exclusive farm
use zone under this chapter.
(w) A county law enforcement facility that lawfully existed on
August 20, 2002, and is used to provide rural law enforcement
services primarily in rural areas, including parole and
post-prison supervision, but not including a correctional
facility as defined under ORS 162.135.
(2) The following nonfarm uses may be established, subject to
the approval of the governing body or its designee in any area
zoned for exclusive farm use subject to ORS 215.296:
(a) Commercial activities that are in conjunction with farm
use, including the processing of farm crops into biofuel not
permitted under ORS 215.203 (2)(b)(L) or subsection (1)(r) of
this section.
(b) Operations conducted for:
(A) Mining and processing of geothermal resources as defined by
ORS 522.005 and oil and gas as defined by ORS 520.005 not
otherwise permitted under subsection (1)(f) of this section;
(B) Mining, crushing or stockpiling of aggregate and other
mineral and other subsurface resources subject to ORS 215.298;
(C) Processing, as defined by ORS 517.750, of aggregate into
asphalt or portland cement; and
(D) Processing of other mineral resources and other subsurface
resources.
(c) Private parks, playgrounds, hunting and fishing preserves
and campgrounds. Subject to the approval of the county governing
body or its designee, a private campground may provide yurts for
overnight camping. No more than one-third or a maximum of 10
campsites, whichever is smaller, may include a yurt. The yurt
shall be located on the ground or on a wood floor with no
permanent foundation. Upon request of a county governing body,
the
{ - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + } may provide by rule
for an increase in the number of yurts allowed on all or a
portion of the campgrounds in a county if the commission
determines that the increase will comply with the standards
described in ORS 215.296 (1). As used in this paragraph, 'yurt'
means a round, domed shelter of cloth or canvas on a collapsible
frame with no plumbing, sewage disposal hookup or internal
cooking appliance.
(d) Parks and playgrounds. A public park may be established
consistent with the provisions of ORS 195.120.
(e) Community centers owned by a governmental agency or a
nonprofit community organization and operated primarily by and
for residents of the local rural community. A community center
authorized under this paragraph may provide services to veterans,
including but not limited to emergency and transitional shelter,
preparation and service of meals, vocational and educational
counseling and referral to local, state or federal agencies
providing medical, mental health, disability income replacement
and substance abuse services, only in a facility that is in
existence on January 1, 2006. The services may not include direct
delivery of medical, mental health, disability income replacement
or substance abuse services.
(f) Golf courses on land determined not to be high-value
farmland, as defined in ORS 195.300.
(g) Commercial utility facilities for the purpose of generating
power for public use by sale.
(h) Personal-use airports for airplanes and helicopter pads,
including associated hangar, maintenance and service facilities.
A personal-use airport, as used in this section, means an
airstrip restricted, except for aircraft emergencies, to use by
the owner, and, on an infrequent and occasional basis, by invited
guests, and by commercial aviation activities in connection with
agricultural operations. No aircraft may be based on a
personal-use airport other than those owned or controlled by the
owner of the airstrip. Exceptions to the activities permitted
under this definition may be granted through waiver action by the
Oregon Department of Aviation in specific instances. A
personal-use airport lawfully existing as of September 13, 1975,
shall continue to be permitted subject to any applicable rules of
the Oregon Department of Aviation.
(i) Home occupations as provided in ORS 215.448.
(j) A facility for the primary processing of forest products,
provided that such facility is found to not seriously interfere
with accepted farming practices and is compatible with farm uses
described in ORS 215.203 (2). Such a facility may be approved for
a one-year period which is renewable. These facilities are
intended to be only portable or temporary in nature. The primary
processing of a forest product, as used in this section, means
the use of a portable chipper or stud mill or other similar
methods of initial treatment of a forest product in order to
enable its shipment to market. Forest products, as used in this
section, means timber grown upon a parcel of land or contiguous
land where the primary processing facility is located.
(k) A site for the disposal of solid waste approved by the
governing body of a city or county or both and for which a permit
has been granted under ORS 459.245 by the Department of
Environmental Quality together with equipment, facilities or
buildings necessary for its operation.
(L) One manufactured dwelling or recreational vehicle, or the
temporary residential use of an existing building, in conjunction
with an existing dwelling as a temporary use for the term of a
hardship suffered by the existing resident or a relative of the
resident. Within three months of the end of the hardship, the
manufactured dwelling or recreational vehicle shall be removed or
demolished or, in the case of an existing building, the building
shall be removed, demolished or returned to an allowed
nonresidential use. The governing body or its designee shall
provide for periodic review of the hardship claimed under this
paragraph. A temporary residence approved under this paragraph is
not eligible for replacement under subsection (1)(p) of this
section.
(m) Transmission towers over 200 feet in height.
(n) Dog kennels.
(o) Residential homes as defined in ORS 197.660, in existing
dwellings.
(p) The propagation, cultivation, maintenance and harvesting of
aquatic species that are not under the jurisdiction of the
{ - State Fish and Wildlife Commission or insect species.
Insect species shall not include any species under quarantine by
the State Department of Agriculture - } { + Oregon Department
of Natural Resources or insect species that are not quarantined
by the State Department of Agriculture + } or the United States
Department of Agriculture. The county shall provide notice of all
applications under this paragraph to the State Department of
Agriculture. Notice shall be provided in accordance with the
county's land use regulations but shall be mailed at least 20
calendar days prior to any administrative decision or initial
public hearing on the application.
(q) Construction of additional passing and travel lanes
requiring the acquisition of right of way but not resulting in
the creation of new land parcels.
(r) Reconstruction or modification of public roads and highways
involving the removal or displacement of buildings but not
resulting in the creation of new land parcels.
(s) Improvement of public road and highway related facilities,
such as maintenance yards, weigh stations and rest areas, where
additional property or right of way is required but not resulting
in the creation of new land parcels.
(t) A destination resort that is approved consistent with the
requirements of any statewide planning goal relating to the
siting of a destination resort.
(u) Room and board arrangements for a maximum of five unrelated
persons in existing residences.
(v) Operations for the extraction and bottling of water.
(w) Expansion of existing county fairgrounds and activities
directly relating to county fairgrounds governed by county fair
boards established pursuant to ORS 565.210.
(x) A living history museum related to resource based
activities owned and operated by a governmental agency or a local
historical society, together with limited commercial activities
and facilities that are directly related to the use and enjoyment
of the museum and located within authentic buildings of the
depicted historic period or the museum administration building,
if areas other than an exclusive farm use zone cannot accommodate
the museum and related activities or if the museum administration
buildings and parking lot are located within one quarter mile of
an urban growth boundary. As used in this paragraph:
(A) 'Living history museum' means a facility designed to depict
and interpret everyday life and culture of some specific historic
period using authentic buildings, tools, equipment and people to
simulate past activities and events; and
(B) 'Local historical society' means the local historical
society recognized by the county governing body and organized
under ORS chapter 65.
(y) An aerial fireworks display business that has been in
continuous operation at its current location within an exclusive
farm use zone since December 31, 1986, and possesses a
wholesaler's permit to sell or provide fireworks.
(z) A landscape contracting business, as defined in ORS
671.520, or a business providing landscape architecture services,
as described in ORS 671.318, if the business is pursued in
conjunction with the growing and marketing of nursery stock on
the land that constitutes farm use.
(aa) Public or private schools for kindergarten through grade
12, including all buildings essential to the operation of a
school, primarily for residents of the rural area in which the
school is located.
(3) Roads, highways and other transportation facilities and
improvements not allowed under subsections (1) and (2) of this
section may be established, subject to the approval of the
governing body or its designee, in areas zoned for exclusive farm
use subject to:
(a) Adoption of an exception to the goal related to
agricultural lands and to any other applicable goal with which
the facility or improvement does not comply; or
(b) ORS 215.296 for those uses identified by rule of the
{ - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + } as provided in
section 3, chapter 529, Oregon Laws 1993.
SECTION 1018. ORS 215.304 is amended to read:
215.304. (1) The { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + }
shall not adopt or implement any rule to identify or designate
small-scale farmland or secondary land.
(2) Amendments required to conform rules to the provisions of
subsection (1) of this section and ORS 215.700 to 215.780 shall
be adopted by March 1, 1994.
(3) Any portion of a rule inconsistent with the provisions of
ORS 197.247 (1991 Edition), 215.213, 215.214 (1991 Edition),
215.288 (1991 Edition), 215.317, 215.327 and 215.337 (1991
Edition) or 215.700 to 215.780 on March 1, 1994:
(a) Shall not be implemented or enforced; and
(b) Has no legal effect.
SECTION 1019. ORS 215.416 is amended to read:
215.416. (1) When required or authorized by the ordinances,
rules and regulations of a county, an owner of land may apply in
writing to such persons as the governing body designates, for a
permit, in the manner prescribed by the governing body. The
governing body shall establish fees charged for processing
permits at an amount no more than the actual or average cost of
providing that service.
(2) The governing body shall establish a consolidated procedure
by which an applicant may apply at one time for all permits or
zone changes needed for a development project. The consolidated
procedure shall be subject to the time limitations set out in ORS
215.427. The consolidated procedure shall be available for use at
the option of the applicant no later than the time of the first
periodic review of the comprehensive plan and land use
regulations.
(3) Except as provided in subsection (11) of this section, the
hearings officer shall hold at least one public hearing on the
application.
(4) The application shall not be approved if the proposed use
of land is found to be in conflict with the comprehensive plan of
the county and other applicable land use regulation or ordinance
provisions. The approval may include such conditions as are
authorized by statute or county legislation.
(5) Hearings under this section shall be held only after notice
to the applicant and also notice to other persons as otherwise
provided by law and shall otherwise be conducted in conformance
with the provisions of ORS 197.763.
(6) Notice of a public hearing on an application submitted
under this section shall be provided to the owner of an airport
defined by the Oregon Department of Aviation as a 'public use
airport' if:
(a) The name and address of the airport owner has been provided
by the Oregon Department of Aviation to the county planning
authority; and
(b) The property subject to the land use hearing is:
(A) Within 5,000 feet of the side or end of a runway of an
airport determined by the Oregon Department of Aviation to be a '
visual airport'; or
(B) Within 10,000 feet of the side or end of the runway of an
airport determined by the Oregon Department of Aviation to be an
' instrument airport. '
(7) Notwithstanding the provisions of subsection (6) of this
section, notice of a land use hearing need not be provided as set
forth in subsection (6) of this section if the zoning permit
would only allow a structure less than 35 feet in height and the
property is located outside the runway 'approach surface' as
defined by the Oregon Department of Aviation.
(8)(a) Approval or denial of a permit application shall be
based on standards and criteria which shall be set forth in the
zoning ordinance or other appropriate ordinance or regulation of
the county and which shall relate approval or denial of a permit
application to the zoning ordinance and comprehensive plan for
the area in which the proposed use of land would occur and to the
zoning ordinance and comprehensive plan for the county as a
whole.
(b) When an ordinance establishing approval standards is
required under ORS 197.307 to provide only clear and objective
standards, the standards must be clear and objective on the face
of the ordinance.
(9) Approval or denial of a permit or expedited land division
shall be based upon and accompanied by a brief statement that
explains the criteria and standards considered relevant to the
decision, states the facts relied upon in rendering the decision
and explains the justification for the decision based on the
criteria, standards and facts set forth.
(10) Written notice of the approval or denial shall be given to
all parties to the proceeding.
(11)(a)(A) The hearings officer or such other person as the
governing body designates may approve or deny an application for
a permit without a hearing if the hearings officer or other
designated person gives notice of the decision and provides an
opportunity for any person who is adversely affected or
aggrieved, or who is entitled to notice under paragraph (c) of
this subsection, to file an appeal.
(B) Written notice of the decision shall be mailed to those
persons described in paragraph (c) of this subsection.
(C) Notice under this subsection shall comply with ORS 197.763
(3)(a), (c), (g) and (h) and shall describe the nature of the
decision. In addition, the notice shall state that any person who
is adversely affected or aggrieved or who is entitled to written
notice under paragraph (c) of this subsection may appeal the
decision by filing a written appeal in the manner and within the
time period provided in the county's land use regulations. A
county may not establish an appeal period that is less than 12
days from the date the written notice of decision required by
this subsection was mailed. The notice shall state that the
decision will not become final until the period for filing a
local appeal has expired. The notice also shall state that a
person who is mailed written notice of the decision cannot appeal
the decision directly to the { - Land Use Board of Appeals - }
{ + Oregon Department of Natural Resources + } under ORS
197.830.
(D) An appeal from a hearings officer's decision made without
hearing under this subsection shall be to the planning commission
or governing body of the county. An appeal from such other person
as the governing body designates shall be to a hearings officer,
the planning commission or the governing body. In either case,
the appeal shall be to a de novo hearing.
(E) The de novo hearing required by subparagraph (D) of this
paragraph shall be the initial evidentiary hearing required under
ORS 197.763 as the basis for an appeal to the { - Land Use
Board of Appeals - } { + department + }. At the de novo
hearing:
(i) The applicant and other parties shall have the same
opportunity to present testimony, arguments and evidence as they
would have had in a hearing under subsection (3) of this section
before the decision;
(ii) The presentation of testimony, arguments and evidence
shall not be limited to issues raised in a notice of appeal; and
(iii) The decision maker shall consider all relevant testimony,
arguments and evidence that are accepted at the hearing.
(b) If a local government provides only a notice of the
opportunity to request a hearing, the local government may charge
a fee for the initial hearing. The maximum fee for an initial
hearing shall be the cost to the local government of preparing
for and conducting the appeal, or $250, whichever is less. If an
appellant prevails at the hearing or upon subsequent appeal, the
fee for the initial hearing shall be refunded. The fee allowed in
this paragraph shall not apply to appeals made by neighborhood or
community organizations recognized by the governing body and
whose boundaries include the site.
(c)(A) Notice of a decision under paragraph (a) of this
subsection shall be provided to the applicant and to the owners
of record of property on the most recent property tax assessment
roll where such property is located:
(i) Within 100 feet of the property that is the subject of the
notice when the subject property is wholly or in part within an
urban growth boundary;
(ii) Within 250 feet of the property that is the subject of the
notice when the subject property is outside an urban growth
boundary and not within a farm or forest zone; or
(iii) Within 750 feet of the property that is the subject of
the notice when the subject property is within a farm or forest
zone.
(B) Notice shall also be provided to any neighborhood or
community organization recognized by the governing body and whose
boundaries include the site.
(C) At the discretion of the applicant, the local government
also shall provide notice to the { - Department of Land
Conservation and Development - } { + Oregon Department of
Natural Resources + }.
(12) A decision described in ORS 215.402 (4)(b) shall:
(a) Be entered in a registry available to the public setting
forth:
(A) The street address or other easily understood geographic
reference to the subject property;
(B) The date of the decision; and
(C) A description of the decision made.
(b) Be subject to the jurisdiction of the { - Land Use Board
of Appeals - } { + department + } in the same manner as a
limited land use decision { + is subject to the jurisdiction of
the department under ORS 197.830 to 197.845 + }.
(c) Be subject to the appeal period described in ORS 197.830
(5)(b).
(13) At the option of the applicant, the local government shall
provide notice of the decision described in ORS 215.402 (4)(b) in
the manner required by ORS 197.763 (2), in which case an appeal
to the { - board - } { + department + } shall be filed within
21 days of the decision. The notice shall include an explanation
of appeal rights.
(14) Notwithstanding the requirements of this section, a
limited land use decision shall be subject to the requirements
set forth in ORS 197.195 and 197.828.
SECTION 1020. ORS 215.427 is amended to read:
215.427. (1) Except as provided in subsections (3), (5) and
(10) of this section, for land within an urban growth boundary
and applications for mineral aggregate extraction, the governing
body of a county or its designee shall take final action on an
application for a permit, limited land use decision or zone
change, including resolution of all appeals under ORS 215.422,
within 120 days after the application is deemed complete. The
governing body of a county or its designee shall take final
action on all other applications for a permit, limited land use
decision or zone change, including resolution of all appeals
under ORS 215.422, within 150 days after the application is
deemed complete, except as provided in subsections (3), (5) and
(10) of this section.
(2) If an application for a permit, limited land use decision
or zone change is incomplete, the governing body or its designee
shall notify the applicant in writing of exactly what information
is missing within 30 days of receipt of the application and allow
the applicant to submit the missing information. The application
shall be deemed complete for the purpose of subsection (1) of
this section upon receipt by the governing body or its designee
of:
(a) All of the missing information;
(b) Some of the missing information and written notice from the
applicant that no other information will be provided; or
(c) Written notice from the applicant that none of the missing
information will be provided.
(3)(a) If the application was complete when first submitted or
the applicant submits additional information, as described in
subsection (2) of this section, within 180 days of the date the
application was first submitted and the county has a
comprehensive plan and land use regulations acknowledged under
ORS 197.251, approval or denial of the application shall be based
upon the standards and criteria that were applicable at the time
the application was first submitted.
(b) If the application is for industrial or traded sector
development of a site identified under section 12, chapter 800,
Oregon Laws 2003, and proposes an amendment to the comprehensive
plan, approval or denial of the application must be based upon
the standards and criteria that were applicable at the time the
application was first submitted, provided the application
complies with paragraph (a) of this subsection.
(4) On the 181st day after first being submitted, the
application is void if the applicant has been notified of the
missing information as required under subsection (2) of this
section and has not submitted:
(a) All of the missing information;
(b) Some of the missing information and written notice that no
other information will be provided; or
(c) Written notice that none of the missing information will be
provided.
(5) The period set in subsection (1) of this section may be
extended for a specified period of time at the written request of
the applicant. The total of all extensions, except as provided in
subsection (10) of this section for mediation, may not exceed 215
days.
(6) The period set in subsection (1) of this section applies:
(a) Only to decisions wholly within the authority and control
of the governing body of the county; and
(b) Unless the parties have agreed to mediation as described in
subsection (10) of this section or ORS 197.319 (2)(b).
(7) Notwithstanding subsection (6) of this section, the period
set in subsection (1) of this section does not apply to an
amendment to an acknowledged comprehensive plan or land use
regulation or adoption of a new land use regulation that was
forwarded to the Director of the { - Department of Land
Conservation and Development - } { + Oregon Department of
Natural Resources + } under ORS 197.610 (1).
(8) Except when an applicant requests an extension under
subsection (5) of this section, if the governing body of the
county or its designee does not take final action on an
application for a permit, limited land use decision or zone
change within 120 days or 150 days, as applicable, after the
application is deemed complete, the county shall refund to the
applicant either the unexpended portion of any application fees
or deposits previously paid or 50 percent of the total amount of
such fees or deposits, whichever is greater. The applicant is not
liable for additional governmental fees incurred subsequent to
the payment of such fees or deposits. However, the applicant is
responsible for the costs of providing sufficient additional
information to address relevant issues identified in the
consideration of the application.
(9) A county may not compel an applicant to waive the period
set in subsection (1) of this section or to waive the provisions
of subsection (8) of this section or ORS 215.429 as a condition
for taking any action on an application for a permit, limited
land use decision or zone change except when such applications
are filed concurrently and considered jointly with a plan
amendment.
(10) The periods set forth in subsection (1) of this section
and the period set forth in subsection (5) of this section may be
extended by up to 90 additional days, if the applicant and the
county agree that a dispute concerning the application will be
mediated.
SECTION 1021. ORS 215.435 is amended to read:
215.435. (1) Pursuant to a final order of the { - Land Use
Board of Appeals - } { + Oregon Department of Natural
Resources + } under ORS 197.830 remanding a decision to a county,
the governing body of the county or its designee shall take final
action on an application for a permit, limited land use decision
or zone change within 90 days of the effective date of the final
order issued by the { - board - } { + department + }. For
purposes of this subsection, the effective date of the final
order is the last day for filing a petition for judicial review
of a final order of the { - board - } { + department + } under
ORS 197.850 (3). If judicial review of a final order of the
{ - board - } { + department + } is sought under ORS 197.830,
the 90-day period established under this subsection shall not
begin until final resolution of the judicial review.
(2)(a) In addition to the requirements of subsection (1) of
this section, the 90-day period established under subsection (1)
of this section shall not begin until the applicant requests in
writing that the county proceed with the application on remand.
(b) The 90-day period may be extended for a reasonable period
of time at the request of the applicant.
(3) The 90-day period established under subsection (1) of this
section applies only to decisions wholly within the authority and
control of the governing body of the county.
(4) Subsection (1) of this section does not apply to a remand
proceeding concerning an amendment to an acknowledged
comprehensive plan or land use regulation or the adoption of a
new land use regulation that was forwarded to the Director of the
{ - Department of Land Conservation and Development - }
{ + Oregon Department of Natural Resources + } under ORS
197.610.
SECTION 1022. ORS 215.457 is amended to read:
215.457. A person may establish a youth camp on land zoned for
forest use or mixed farm and forest use, consistent with rules
adopted by the { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + }
under section 3, chapter 586, Oregon Laws 1999.
SECTION 1023. ORS 215.459 is amended to read:
215.459. (1)(a) Subject to the approval of the county governing
body or its designee, a private campground may be established in
an area zoned for forest use or mixed farm and forest use.
Subject to the approval of the county governing body or its
designee, the campground may provide yurts for overnight camping.
No more than one-third or a maximum of 10 campsites, whichever is
smaller, may include a yurt. The yurt shall be located on the
ground or on a wood floor with no permanent foundation.
(b) A public park or campground may be established as provided
in ORS 195.120 in an area zoned for forest use or mixed farm and
forest use.
(2) Upon request of a county governing body, the { - Land
Conservation and Development Commission - } { + Oregon Natural
Resources Commission + } may provide by rule for an increase in
the number of yurts allowed on all or a portion of the
campgrounds in a county if the commission determines that the
increase will comply with the standards described in ORS 215.296
(1).
(3) As used in this section, 'yurt' means a round, domed
shelter of cloth or canvas on a collapsible frame with no
plumbing, sewage disposal hookup or internal cooking appliance.
SECTION 1024. ORS 215.503 is amended to read:
215.503. (1) As used in this section, 'owner' means the owner
of the title to real property or the contract purchaser of real
property, of record as shown on the last available complete tax
assessment roll.
(2) All legislative acts relating to comprehensive plans, land
use planning or zoning adopted by the governing body of a county
shall be by ordinance.
(3) Except as provided in subsection (6) of this section and in
addition to the notice required by ORS 215.060, at least 20 days
but not more than 40 days before the date of the first hearing on
an ordinance that proposes to amend an existing comprehensive
plan or any element thereof or to adopt a new comprehensive plan,
the governing body of a county shall cause a written individual
notice of land use change to be mailed to each owner whose
property would have to be rezoned in order to comply with the
amended or new comprehensive plan if the ordinance becomes
effective.
(4) In addition to the notice required by ORS 215.223 (1), at
least 20 days but not more than 40 days before the date of the
first hearing on an ordinance that proposes to rezone property,
the governing body of a county shall cause a written individual
notice of land use change to be mailed to the owner of each lot
or parcel of property that the ordinance proposes to rezone.
(5) An additional individual notice of land use change required
by subsection (3) or (4) of this section shall be approved by the
governing body of the county and shall describe in detail how the
proposed ordinance would affect the use of the property. The
notice shall:
(a) Contain substantially the following language in boldfaced
type across the top of the face page extending from the left
margin to the right margin:
_________________________________________________________________
This is to notify you that (governing body of the county) has
proposed a land use regulation that may affect the permissible
uses of your property and other properties.
_________________________________________________________________
(b) Contain substantially the following language in the body of
the notice:
_________________________________________________________________
On (date of public hearing), (governing body) will hold a
public hearing regarding the adoption of Ordinance Number
___. The (governing body) has determined that adoption of this
ordinance may affect the permissible uses of your property, and
other properties in the affected zone, and may change the value
of your property.
Ordinance Number ___ is available for inspection at the ____
County Courthouse located at _____. A copy of Ordinance Number
___ also is available for purchase at a cost of ___.
For additional information concerning Ordinance Number ___, you
may call the (governing body) Planning Department at __ -___.
_________________________________________________________________
(6) At least 30 days prior to the adoption or amendment of a
comprehensive plan or land use regulation by the governing body
of a county pursuant to a requirement of periodic review of the
comprehensive plan under ORS 197.628, 197.633 and 197.636, the
governing body of the county shall cause a written individual
notice of the land use change to be mailed to the owner of each
lot or parcel that will be rezoned as a result of the adoption or
enactment. The notice shall describe in detail how the ordinance
or plan amendment may affect the use of the property. The notice
also shall:
(a) Contain substantially the following language in boldfaced
type across the top of the face page extending from the left
margin to the right margin:
_________________________________________________________________
This is to notify you that (governing body of the county) has
proposed a land use that may affect the permissible uses of your
property and other properties.
_________________________________________________________________
(b) Contain substantially the following language in the body of
the notice:
_________________________________________________________________
As a result of an order of the { - Land Conservation and
Development Commission - } { + Oregon Natural Resources
Commission + }, (governing body) has proposed Ordinance Number
___. (Governing Body) has determined that the adoption of this
ordinance may affect the permissible uses of your property, and
other properties in the affected zone, and may change the value
of your property.
Ordinance Number ___ will become effective on (date).
Ordinance Number ___ is available for inspection at the ___
County Courthouse located at ___. A copy of Ordinance Number ___
also is available for purchase at a cost of ___.
For additional information concerning Ordinance Number ___, you
may call the (governing body) Planning Department at ___ -___.
_________________________________________________________________
(7) Notice provided under this section may be included with the
tax statement required under ORS 311.250.
(8) Notwithstanding subsection (7) of this section, the
governing body of a county may provide notice of a hearing at any
time provided notice is mailed by first class mail or bulk mail
to all persons for whom notice is required under subsections (3)
and (4) of this section.
(9) For purposes of this section, property is rezoned when the
governing body of the county:
(a) Changes the base zoning classification of the property; or
(b) Adopts or amends an ordinance in a manner that limits or
prohibits land uses previously allowed in the affected zone.
(10) The provisions of this section do not apply to legislative
acts of the governing body of the county resulting from action of
the Legislative Assembly or the { - Land Conservation and
Development Commission - } { + Oregon Natural Resources
Commission + } for which notice is provided under ORS 197.047, or
resulting from an order of a court of competent jurisdiction.
(11) The governing body of the county is not required to
provide more than one notice under this section to a person who
owns more than one lot or parcel affected by a change to the
local comprehensive plan or land use regulation.
(12) The { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + }
shall reimburse the governing body of a county for all usual and
reasonable costs incurred to provide notice required under
subsection (6) of this section.
SECTION 1025. ORS 215.740 is amended to read:
215.740. (1) If a dwelling is not allowed under ORS 215.720
(1), a dwelling may be allowed on land zoned for forest use under
a goal protecting forestland if it complies with other provisions
of law and is sited on a tract:
(a) In eastern Oregon of at least 240 contiguous acres except
as provided in subsection (3) of this section; or
(b) In western Oregon of at least 160 contiguous acres except
as provided in subsection (3) of this section.
(2) For purposes of subsection (1) of this section, a tract
shall not be considered to consist of less than 240 acres or 160
acres because it is crossed by a public road or a waterway.
(3)(a) An owner of tracts that are not contiguous but are in
the same county or adjacent counties and zoned for forest use may
add together the acreage of two or more tracts to total 320 acres
or more in eastern Oregon or 200 acres or more in western Oregon
to qualify for a dwelling under subsection (1) of this section.
(b) If an owner totals 320 or 200 acres, as appropriate, under
paragraph (a) of this subsection, the owner shall submit proof of
nonrevocable deed restrictions recorded in the deed records for
the tracts in the 320 or 200 acres, as appropriate. The deed
restrictions shall preclude all future rights to construct a
dwelling on the tracts or to use the tracts to total acreage for
future siting of dwellings for present and any future owners
unless the tract is no longer subject to protection under goals
for agricultural lands or forestlands.
(c) The { - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + } shall adopt rules
that prescribe the language of the deed restriction, the
procedures for recording, the procedures under which counties
shall keep records of lots or parcels used to create the total,
the mechanisms for providing notice to subsequent purchasers of
the limitations under paragraph (b) of this subsection and other
rules to implement this section.
SECTION 1026. ORS 215.780 is amended to read:
215.780. (1) Except as provided in subsection (2) of this
section, the following minimum lot or parcel sizes apply to all
counties:
(a) For land zoned for exclusive farm use and not designated
rangeland, at least 80 acres;
(b) For land zoned for exclusive farm use and designated
rangeland, at least 160 acres; and
(c) For land designated forestland, at least 80 acres.
(2) A county may adopt a lower minimum lot or parcel size than
that described in subsection (1) of this section in any of the
following circumstances:
(a) By demonstrating to the { - Land Conservation and
Development Commission - } { + Oregon Natural Resources
Commission + } that it can do so while continuing to meet the
requirements of ORS 215.243 and 527.630 and the land use planning
goals adopted under ORS 197.230.
(b) To allow the establishment of a parcel for a dwelling on
land zoned for forest use or mixed farm and forest use, subject
to the following requirements:
(A) The parcel established shall not be larger than five acres,
except as necessary to recognize physical factors such as roads
or streams, in which case the parcel shall be no larger than 10
acres;
(B) The dwelling existed prior to June 1, 1995;
(C)(i) The remaining parcel, not containing the dwelling, meets
the minimum land division standards of the zone; or
(ii) The remaining parcel, not containing the dwelling, is
consolidated with another parcel, and together the parcels meet
the minimum land division standards of the zone; and
(D) The remaining parcel, not containing the dwelling, is not
entitled to a dwelling unless subsequently authorized by law or
goal.
(c) In addition to the requirements of paragraph (b) of this
subsection, if the land is zoned for mixed farm and forest use
the following requirements apply:
(A) The minimum tract eligible under paragraph (b) of this
subsection is 40 acres.
(B) The tract shall be predominantly in forest use and that
portion in forest use qualified for special assessment under a
program under ORS chapter 321.
(C) The remainder of the tract shall not qualify for any uses
allowed under ORS 215.213 and 215.283 that are not allowed on
forestland.
(d) To allow a division of forestland to facilitate a forest
practice as defined in ORS 527.620 that results in a parcel that
does not meet the minimum area requirements of subsection (1)(c)
of this section or paragraph (a) of this subsection. Parcels
created pursuant to this subsection:
(A) Shall not be eligible for siting of a new dwelling;
(B) Shall not serve as the justification for the siting of a
future dwelling on other lots or parcels;
(C) Shall not, as a result of the land division, be used to
justify redesignation or rezoning of resource lands;
(D) Shall not result in a parcel of less than 35 acres, except:
(i) Where the purpose of the land division is to facilitate an
exchange of lands involving a governmental agency; or
(ii) Where the purpose of the land division is to allow
transactions in which at least one participant is a person with a
cumulative ownership of at least 2,000 acres of forestland; and
(E) If associated with the creation of a parcel where a
dwelling is involved, shall not result in a parcel less than the
minimum lot or parcel size of the zone.
(e) To allow a division of a lot or parcel zoned for forest use
or mixed farm and forest use under a statewide planning goal
protecting forestland if:
(A) At least two dwellings lawfully existed on the lot or
parcel prior to November 4, 1993;
(B) Each dwelling complies with the criteria for a replacement
dwelling under ORS 215.213 (1)(q) or 215.283 (1)(p);
(C) Except for one lot or parcel, each lot or parcel created
under this paragraph is between two and five acres in size;
(D) At least one dwelling is located on each lot or parcel
created under this paragraph; and
(E) The landowner of a lot or parcel created under this
paragraph provides evidence that a restriction prohibiting the
landowner and the landowner's successors in interest from further
dividing the lot or parcel has been recorded with the county
clerk of the county in which the lot or parcel is located. A
restriction imposed under this paragraph shall be irrevocable
unless a statement of release is signed by the county planning
director of the county in which the lot or parcel is located
indicating that the comprehensive plan or land use regulations
applicable to the lot or parcel have been changed so that the lot
or parcel is no longer subject to statewide planning goals
protecting forestland or unless the land division is subsequently
authorized by law or by a change in a statewide planning goal for
land zoned for forest use or mixed farm and forest use.
(f) To allow a proposed division of land in a forest zone or a
mixed farm and forest zone as provided in ORS 215.783.
(3) A county planning director shall maintain a record of lots
and parcels that do not qualify for division under the
restrictions imposed under subsections (2)(e) and (4) of this
section. The record shall be readily available to the public.
(4) A lot or parcel may not be divided under subsection (2)(e)
of this section if an existing dwelling on the lot or parcel was
approved under:
(a) A statute, an administrative rule or a land use regulation
as defined in ORS 197.015 that required removal of the dwelling
or that prohibited subsequent division of the lot or parcel; or
(b) A farm use zone provision that allowed both farm and forest
uses in a mixed farm and forest use zone under a statewide
planning goal protecting forestland.
(5) A county with a minimum lot or parcel size acknowledged by
the commission pursuant to ORS 197.251 after January 1, 1987, or
acknowledged pursuant to periodic review requirements under ORS
197.628 to 197.650 that is smaller than those prescribed in
subsection (1) of this section need not comply with subsection
(2) of this section.
(6)(a) An applicant for the creation of a parcel pursuant to
subsection (2)(b) of this section shall provide evidence that a
restriction on the remaining parcel, not containing the dwelling,
has been recorded with the county clerk of the county where the
property is located. An applicant for the creation of a parcel
pursuant to subsection (2)(d) of this section shall provide
evidence that a restriction on the newly created parcel has been
recorded with the county clerk of the county where the property
is located. The restriction shall allow no dwellings unless
authorized by law or goal on land zoned for forest use except as
permitted under subsection (2) of this section.
(b) A restriction imposed under this subsection shall be
irrevocable unless a statement of release is signed by the county
planning director of the county where the property is located
indicating that the comprehensive plan or land use regulations
applicable to the property have been changed in such a manner
that the parcel is no longer subject to statewide planning goals
pertaining to agricultural land or forestland.
(c) The county planning director shall maintain a record of
parcels that do not qualify for the siting of a new dwelling
under restrictions imposed by this subsection. The record shall
be readily available to the public.
(7) A landowner allowed a land division under subsection (2) of
this section shall sign a statement that shall be recorded with
the county clerk of the county in which the property is located,
declaring that the landowner and the landowner's successors in
interest will not in the future complain about accepted farming
or forest practices on nearby lands devoted to farm or forest
use.
SECTION 1027. ORS 215.788 is amended to read:
215.788. (1) For the purposes of correcting mapping errors made
in the acknowledgment process and updating the designation of
farmlands and forestlands for land use planning, a county may
conduct a legislative review of lands in the county to determine
whether the lands planned and zoned for farm use, forest use or
mixed farm and forest use are consistent with the definitions of
' agricultural lands' or 'forest lands' in goals relating to
agricultural lands or forestlands.
(2) A county may undertake the reacknowledgment process
authorized by this section only if the { - Department of Land
Conservation and Development - } { + Oregon Department of
Natural Resources + } approves a work plan, from the county,
describing the expected scope of reacknowledgment. The department
may condition approval of a work plan for reacknowledgment under
this section to reflect the resources needed to complete the
review required by ORS 197.659 and 215.794. The work plan of the
county and the approval of the department are not final orders
for purposes of review.
(3) A county that undertakes the reacknowledgment process
authorized by this section shall provide an opportunity for all
lands planned for farm use, forest use or mixed farm and forest
use and all lands subject to an exception under ORS 197.732 to a
goal relating to agricultural lands or forestlands to be included
in the review.
(4) A county must plan and zone land reviewed under this
section:
(a) For farm use if the land meets the definition of '
agricultural land' in a goal relating to agricultural lands;
(b) For forest use if the land meets the definition of ' forest
land' used for comprehensive plan amendments in the goal relating
to forestlands;
(c) For mixed farm and forest use if the land meets both
definitions;
(d) For nonresource use, consistent with ORS 215.794, if the
land does not meet either definition; or
(e) For a use other than farm use or forest use as provided in
a goal relating to land use planning process and policy framework
and subject to an exception to the appropriate goals under ORS
197.732 (2).
(5) A county may consider the current land use pattern on
adjacent and nearby lands in determining whether land meets the
appropriate definition.
SECTION 1028. ORS 215.794 is amended to read:
215.794. (1) A county shall submit decisions on planning and
rezoning designations under ORS 215.788 to 215.794 to the
{ - Department of Land Conservation and Development - }
{ + Oregon Department of Natural Resources + } for review
pursuant to the procedures set forth in this section and ORS
197.659. { + The department shall coordinate with the State
Department of Agriculture in reviewing decisions on planning and
rezoning designations for lands planned for farm use or mixed
farm and forest use. + }
{ - (2) The department shall coordinate with: - }
{ - (a) The State Department of Agriculture in reviewing
decisions on planning and rezoning designations for lands planned
for farm use or mixed farm and forest use. - }
{ - (b) The State Forestry Department in reviewing decisions
on planning and rezoning designations for lands planned for
forest use or mixed farm and forest use. - }
{ - (3) - } { + (2) + } The { - Land Conservation and
Development Commission - } { + Oregon Natural Resources
Commission + } has exclusive jurisdiction for review of a
county's decision made under ORS 215.788 to 215.794.
{ - (4) - } { + (3) + } A person who participated in the
proceedings leading to the county's decisions under ORS 215.788
to 215.794 may not raise an issue on review before the commission
that was not raised in the local proceedings.
{ - (5) - } { + (4) + } The commission may adopt rules
implementing ORS 215.788 to 215.794.
SECTION 1029. ORS 223.317 is amended to read:
223.317. (1) Notwithstanding any other law, a local government
may apportion a final assessment levied by it against a single
tract or parcel of real property among all the parcels formed
from a subsequent partition or other division of that tract or
parcel, if the subsequent partition or division is in accordance
with ORS 92.010 to 92.192 and is consistent with all applicable
comprehensive plans as acknowledged by the { - Land
Conservation and Development Commission - } { + Oregon Natural
Resources Commission + } under ORS 197.251. The proportionate
distribution of a final assessment authorized under this
subsection may be made whenever the final assessment remains
wholly or partially unpaid, and full payment or an installment
payment is not due.
(2) A local government shall apportion a final assessment under
this section when requested to do so by any owner, mortgagee or
lienholder of a parcel of real property that was formed from the
partition or other division of the larger tract of real property
against which the final assessment was originally levied. When
the deed, mortgage or other instrument evidencing the applicant's
ownership or other interest in the parcel has not been recorded
by the county clerk of the county in which the parcel is
situated, the local government shall not apportion the final
assessment unless the applicant files a true copy of that deed,
mortgage or instrument with the local government.
(3) Apportionment of a final assessment under this section
shall be done in accordance with an order or resolution of the
governing body of the local government. The order or resolution
shall describe each parcel of real property affected by the
apportionment, the amount of the final assessment levied against
each parcel, the owner of each parcel and such additional
information as is required to keep a permanent and complete
record of the final assessments and the payments thereon. A copy
of the order or resolution shall be filed with the recorder
required to maintain the lien docket for the local government,
who shall make any necessary changes or entries in the lien
docket for the local government.
SECTION 1030. ORS 227.175 is amended to read:
227.175. (1) When required or authorized by a city, an owner of
land may apply in writing to the hearings officer, or such other
person as the city council designates, for a permit or zone
change, upon such forms and in such a manner as the city council
prescribes. The governing body shall establish fees charged for
processing permits at an amount no more than the actual or
average cost of providing that service.
(2) The governing body of the city shall establish a
consolidated procedure by which an applicant may apply at one
time for all permits or zone changes needed for a development
project. The consolidated procedure shall be subject to the time
limitations set out in ORS 227.178. The consolidated procedure
shall be available for use at the option of the applicant no
later than the time of the first periodic review of the
comprehensive plan and land use regulations.
(3) Except as provided in subsection (10) of this section, the
hearings officer shall hold at least one public hearing on the
application.
(4) The application shall not be approved unless the proposed
development of land would be in compliance with the comprehensive
plan for the city and other applicable land use regulation or
ordinance provisions. The approval may include such conditions as
are authorized by ORS 227.215 or any city legislation.
(5) Hearings under this section may be held only after notice
to the applicant and other interested persons and shall otherwise
be conducted in conformance with the provisions of ORS 197.763.
(6) Notice of a public hearing on a zone use application shall
be provided to the owner of an airport, defined by the Oregon
Department of Aviation as a 'public use airport' if:
(a) The name and address of the airport owner has been provided
by the Oregon Department of Aviation to the city planning
authority; and
(b) The property subject to the zone use hearing is:
(A) Within 5,000 feet of the side or end of a runway of an
airport determined by the Oregon Department of Aviation to be a '
visual airport'; or
(B) Within 10,000 feet of the side or end of the runway of an
airport determined by the Oregon Department of Aviation to be an
' instrument airport. '
(7) Notwithstanding the provisions of subsection (6) of this
section, notice of a zone use hearing need only be provided as
set forth in subsection (6) of this section if the permit or zone
change would only allow a structure less than 35 feet in height
and the property is located outside of the runway 'approach
surface' as defined by the Oregon Department of Aviation.
(8) If an application would change the zone of property that
includes all or part of a mobile home or manufactured dwelling
park as defined in ORS 446.003, the governing body shall give
written notice by first class mail to each existing mailing
address for tenants of the mobile home or manufactured dwelling
park at least 20 days but not more than 40 days before the date
of the first hearing on the application. The governing body may
require an applicant for such a zone change to pay the costs of
such notice.
(9) The failure of a tenant or an airport owner to receive a
notice which was mailed shall not invalidate any zone change.
(10)(a)(A) The hearings officer or such other person as the
governing body designates may approve or deny an application for
a permit without a hearing if the hearings officer or other
designated person gives notice of the decision and provides an
opportunity for any person who is adversely affected or
aggrieved, or who is entitled to notice under paragraph (c) of
this subsection, to file an appeal.
(B) Written notice of the decision shall be mailed to those
persons described in paragraph (c) of this subsection.
(C) Notice under this subsection shall comply with ORS 197.763
(3)(a), (c), (g) and (h) and shall describe the nature of the
decision. In addition, the notice shall state that any person who
is adversely affected or aggrieved or who is entitled to written
notice under paragraph (c) of this subsection may appeal the
decision by filing a written appeal in the manner and within the
time period provided in the city's land use regulations. A city
may not establish an appeal period that is less than 12 days from
the date the written notice of decision required by this
subsection was mailed. The notice shall state that the decision
will not become final until the period for filing a local appeal
has expired. The notice also shall state that a person who is
mailed written notice of the decision cannot appeal the decision
directly to the { - Land Use Board of Appeals - } { + Oregon
Department of Natural Resources + } under ORS 197.830.
(D) An appeal from a hearings officer's decision made without
hearing under this subsection shall be to the planning commission
or governing body of the city. An appeal from such other person
as the governing body designates shall be to a hearings officer,
the planning commission or the governing body. In either case,
the appeal shall be to a de novo hearing.
(E) The de novo hearing required by subparagraph (D) of this
paragraph shall be the initial evidentiary hearing required under
ORS 197.763 as the basis for an appeal to the { - Land Use
Board of Appeals - } { + Oregon Department of Natural
Resources + }. At the de novo hearing:
(i) The applicant and other parties shall have the same
opportunity to present testimony, arguments and evidence as they
would have had in a hearing under subsection (3) of this section
before the decision;
(ii) The presentation of testimony, arguments and evidence
shall not be limited to issues raised in a notice of appeal; and
(iii) The decision maker shall consider all relevant testimony,
arguments and evidence that are accepted at the hearing.
(b) If a local government provides only a notice of the
opportunity to request a hearing, the local government may charge
a fee for the initial hearing. The maximum fee for an initial
hearing shall be the cost to the local government of preparing
for and conducting the appeal, or $250, whichever is less. If an
appellant prevails at the hearing or upon subsequent appeal, the
fee for the initial hearing shall be refunded. The fee allowed in
this paragraph shall not apply to appeals made by neighborhood or
community organizations recognized by the governing body and
whose boundaries include the site.
(c)(A) Notice of a decision under paragraph (a) of this
subsection shall be provided to the applicant and to the owners
of record of property on the most recent property tax assessment
roll where such property is located:
(i) Within 100 feet of the property that is the subject of the
notice when the subject property is wholly or in part within an
urban growth boundary;
(ii) Within 250 feet of the property that is the subject of the
notice when the subject property is outside an urban growth
boundary and not within a farm or forest zone; or
(iii) Within 750 feet of the property that is the subject of
the notice when the subject property is within a farm or forest
zone.
(B) Notice shall also be provided to any neighborhood or
community organization recognized by the governing body and whose
boundaries include the site.
(C) At the discretion of the applicant, the local government
also shall provide notice to the { - Department of Land
Conservation and Development - } { + Oregon Department of
Natural Resources + }.
(11) A decision described in ORS 227.160 (2)(b) shall:
(a) Be entered in a registry available to the public setting
forth:
(A) The street address or other easily understood geographic
reference to the subject property;
(B) The date of the decision; and
(C) A description of the decision made.
(b) Be subject to the jurisdiction of the { - Land Use Board
of Appeals - } { + Oregon Department of Natural Resources under
ORS 197.830 to 197.845 + } in the same manner as a limited land
use decision.
(c) Be subject to the appeal period described in ORS 197.830
(5)(b).
(12) At the option of the applicant, the local government shall
provide notice of the decision described in ORS 227.160 (2)(b) in
the manner required by ORS 197.763 (2), in which case an appeal
to the { - board - } { + Oregon Department of Natural
Resources + } shall be filed within 21 days of the decision. The
notice shall include an explanation of appeal rights.
(13) Notwithstanding other requirements of this section,
limited land use decisions shall be subject to the requirements
set forth in ORS 197.195 and 197.828.
SECTION 1031. ORS 227.178 is amended to read:
227.178. (1) Except as provided in subsections (3), (5) and
(11) of this section, the governing body of a city or its
designee shall take final action on an application for a permit,
limited land use decision or zone change, including resolution of
all appeals under ORS 227.180, within 120 days after the
application is deemed complete.
(2) If an application for a permit, limited land use decision
or zone change is incomplete, the governing body or its designee
shall notify the applicant in writing of exactly what information
is missing within 30 days of receipt of the application and allow
the applicant to submit the missing information. The application
shall be deemed complete for the purpose of subsection (1) of
this section upon receipt by the governing body or its designee
of:
(a) All of the missing information;
(b) Some of the missing information and written notice from the
applicant that no other information will be provided; or
(c) Written notice from the applicant that none of the missing
information will be provided.
(3)(a) If the application was complete when first submitted or
the applicant submits the requested additional information within
180 days of the date the application was first submitted and the
city has a comprehensive plan and land use regulations
acknowledged under ORS 197.251, approval or denial of the
application shall be based upon the standards and criteria that
were applicable at the time the application was first submitted.
(b) If the application is for industrial or traded sector
development of a site identified under section 12, chapter 800,
Oregon Laws 2003, and proposes an amendment to the comprehensive
plan, approval or denial of the application must be based upon
the standards and criteria that were applicable at the time the
application was first submitted, provided the application
complies with paragraph (a) of this subsection.
(4) On the 181st day after first being submitted, the
application is void if the applicant has been notified of the
missing information as required under subsection (2) of this
section and has not submitted:
(a) All of the missing information;
(b) Some of the missing information and written notice that no
other information will be provided; or
(c) Written notice that none of the missing information will be
provided.
(5) The 120-day period set in subsection (1) of this section
may be extended for a specified period of time at the written
request of the applicant. The total of all extensions, except as
provided in subsection (11) of this section for mediation, may
not exceed 245 days.
(6) The 120-day period set in subsection (1) of this section
applies:
(a) Only to decisions wholly within the authority and control
of the governing body of the city; and
(b) Unless the parties have agreed to mediation as described in
subsection (11) of this section or ORS 197.319 (2)(b).
(7) Notwithstanding subsection (6) of this section, the 120-day
period set in subsection (1) of this section does not apply to an
amendment to an acknowledged comprehensive plan or land use
regulation or adoption of a new land use regulation that was
forwarded to the Director of the { - Department of Land
Conservation and Development - } { + Oregon Department of
Natural Resources + } under ORS 197.610 (1).
(8) Except when an applicant requests an extension under
subsection (5) of this section, if the governing body of the city
or its designee does not take final action on an application for
a permit, limited land use decision or zone change within 120
days after the application is deemed complete, the city shall
refund to the applicant, subject to the provisions of subsection
(9) of this section, either the unexpended portion of any
application fees or deposits previously paid or 50 percent of the
total amount of such fees or deposits, whichever is greater. The
applicant is not liable for additional governmental fees incurred
subsequent to the payment of such fees or deposits. However, the
applicant is responsible for the costs of providing sufficient
additional information to address relevant issues identified in
the consideration of the application.
(9)(a) To obtain a refund under subsection (8) of this section,
the applicant may either:
(A) Submit a written request for payment, either by mail or in
person, to the city or its designee; or
(B) Include the amount claimed in a mandamus petition filed
under ORS 227.179. The court shall award an amount owed under
this section in its final order on the petition.
(b) Within seven calendar days of receiving a request for a
refund, the city or its designee shall determine the amount of
any refund owed. Payment, or notice that no payment is due, shall
be made to the applicant within 30 calendar days of receiving the
request. Any amount due and not paid within 30 calendar days of
receipt of the request shall be subject to interest charges at
the rate of one percent per month, or a portion thereof.
(c) If payment due under paragraph (b) of this subsection is
not paid within 120 days after the city or its designee receives
the refund request, the applicant may file an action for recovery
of the unpaid refund. In an action brought by a person under this
paragraph, the court shall award to a prevailing applicant, in
addition to the relief provided in this section, reasonable
attorney fees and costs at trial and on appeal. If the city or
its designee prevails, the court shall award reasonable attorney
fees and costs at trial and on appeal if the court finds the
petition to be frivolous.
(10) A city may not compel an applicant to waive the 120-day
period set in subsection (1) of this section or to waive the
provisions of subsection (8) of this section or ORS 227.179 as a
condition for taking any action on an application for a permit,
limited land use decision or zone change except when such
applications are filed concurrently and considered jointly with a
plan amendment.
(11) The period set forth in subsection (1) of this section and
the period set forth in subsection (5) of this section may be
extended by up to 90 additional days, if the applicant and the
city agree that a dispute concerning the application will be
mediated.
SECTION 1032. ORS 227.181 is amended to read:
227.181. (1) Pursuant to a final order of the { - Land Use
Board of Appeals - } { + Oregon Department of Natural
Resources + } under ORS 197.830 remanding a decision to a city,
the governing body of the city or its designee shall take final
action on an application for a permit, limited land use decision
or zone change within 90 days of the effective date of the final
order issued by the { - board - } { + department + }. For
purposes of this subsection, the effective date of the final
order is the last day for filing a petition for judicial review
of a final order of the { - board - } { + department + }
under ORS 197.850 (3). If judicial review of a final order of the
{ - board - } { + department + } is sought under ORS 197.830,
the 90-day period established under this subsection shall not
begin until final resolution of the judicial review.
(2)(a) In addition to the requirements of subsection (1) of
this section, the 90-day period established under subsection (1)
of this section shall not begin until the applicant requests in
writing that the city proceed with the application on remand.
(b) The 90-day period may be extended for a reasonable period
of time at the request of the applicant.
(3) The 90-day period established under subsection (1) of this
section applies only to decisions wholly within the authority and
control of the governing body of the city.
(4) Subsection (1) of this section does not apply to a remand
proceeding concerning an amendment to an acknowledged
comprehensive plan or land use regulation or the adoption of a
new land use regulation that was forwarded to the Director of the
{ - Department of Land Conservation and Development - }
{ + Oregon Department of Natural Resources + } under ORS
197.610.
SECTION 1033. ORS 227.186 is amended to read:
227.186. (1) As used in this section, 'owner' means the owner
of the title to real property or the contract purchaser of real
property, of record as shown on the last available complete tax
assessment roll.
(2) All legislative acts relating to comprehensive plans, land
use planning or zoning adopted by a city shall be by ordinance.
(3) Except as provided in subsection (6) of this section, at
least 20 days but not more than 40 days before the date of the
first hearing on an ordinance that proposes to amend an existing
comprehensive plan or any element thereof, or to adopt a new
comprehensive plan, a city shall cause a written individual
notice of a land use change to be mailed to each owner whose
property would have to be rezoned in order to comply with the
amended or new comprehensive plan if the ordinance becomes
effective.
(4) At least 20 days but not more than 40 days before the date
of the first hearing on an ordinance that proposes to rezone
property, a city shall cause a written individual notice of a
land use change to be mailed to the owner of each lot or parcel
of property that the ordinance proposes to rezone.
(5) An additional individual notice of land use change required
by subsection (3) or (4) of this section shall be approved by the
city and shall describe in detail how the proposed ordinance
would affect the use of the property. The notice shall:
(a) Contain substantially the following language in boldfaced
type across the top of the face page extending from the left
margin to the right margin:
_________________________________________________________________
This is to notify you that (city) has proposed a land use
regulation that may affect the permissible uses of your property
and other properties.
_________________________________________________________________
(b) Contain substantially the following language in the body of
the notice:
_________________________________________________________________
On (date of public hearing), (city) will hold a public hearing
regarding the adoption of Ordinance Number ___. The (city) has
determined that adoption of this ordinance may affect the
permissible uses of your property, and other properties in the
affected zone, and may change the value of your property.
Ordinance Number ___ is available for inspection at the ____
City Hall located at _____. A copy of Ordinance Number ___ also
is available for purchase at a cost of ___.
For additional information concerning Ordinance Number ___, you
may call the (city) Planning Department at __-__.
_________________________________________________________________
(6) At least 30 days prior to the adoption or amendment of a
comprehensive plan or land use regulation by a city pursuant to a
requirement of periodic review of the comprehensive plan under
ORS 197.628, 197.633 and 197.636, the city shall cause a written
individual notice of the land use change to be mailed to the
owner of each lot or parcel that will be rezoned as a result of
the adoption or enactment. The notice shall describe in detail
how the ordinance or plan amendment may affect the use of the
property. The notice also shall:
(a) Contain substantially the following language in boldfaced
type across the top of the face page extending from the left
margin to the right margin:
_________________________________________________________________
This is to notify you that (city) has proposed a land use
regulation that may affect the permissible uses of your property
and other properties.
_________________________________________________________________
(b) Contain substantially the following language in the body of
the notice:
_________________________________________________________________
As a result of an order of the { - Land Conservation and
Development Commission - } { + Oregon Natural Resources
Commission + }, (city) has proposed Ordinance Number ___. (City)
has determined that the adoption of this ordinance may affect the
permissible uses of your property, and other properties in the
affected zone, and may change the value of your property.
Ordinance Number ___ will become effective on (date).
Ordinance Number ___ is available for inspection at the ___
City Hall located at ___. A copy of Ordinance Number ___ also is
available for purchase at a cost of ___.
For additional information concerning Ordinance Number ___, you
may call the (city) Planning Department at __-__.
_________________________________________________________________
(7) Notice provided under this section may be included with the
tax statement required under ORS 311.250.
(8) Notwithstanding subsection (7) of this section, a city may
provide notice of a hearing at any time provided notice is mailed
by first class mail or bulk mail to all persons for whom notice
is required under subsections (3) and (4) of this section.
(9) For purposes of this section, property is rezoned when the
city:
(a) Changes the base zoning classification of the property; or
(b) Adopts or amends an ordinance in a manner that limits or
prohibits land uses previously allowed in the affected zone.
(10) The provisions of this section do not apply to legislative
acts of the governing body of the city resulting from action of
the Legislative Assembly or the { - Land Conservation and
Development Commission - } { + Oregon Natural Resources
Commission + } for which notice is provided under ORS 197.047 or
resulting from an order of a court of competent jurisdiction.
(11) The governing body of the city is not required to provide
more than one notice under this section to a person who owns more
than one lot or parcel affected by a change to the local
comprehensive plan or land use regulation.
(12) The { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + }
shall reimburse a city for all usual and reasonable costs
incurred to provide notice required under subsection (6) of this
section.
SECTION 1034. ORS 284.577 is amended to read:
284.577. In furtherance of the state economic development
strategy developed under ORS 284.570, the { - Land Conservation
and Development Commission - } { + Oregon Natural Resources
Commission + } shall:
(1) Provide local governments with basic and advanced methods
for identifying, analyzing and providing for industrial,
commercial and retail development sites.
(2) Develop and provide guidebooks and other appropriate
materials to assist local governments in identifying and
analyzing potential industrial, commercial and retail development
sites.
(3) Provide local governments with technical assistance to
assist in completing the identification and analysis and in
amending comprehensive plans and land use regulations based on
the identification and analysis.
(4) Provide grants to local governments in a manner that
furthers the implementation of the state economic development
strategy.
(5) Adopt, amend or repeal administrative rules and procedures
as necessary to ensure that the following actions can be
accomplished in a timely manner:
(a) Expansion of urban growth boundaries where necessary to
accommodate industrial or traded sector development;
(b) Review of amendments to comprehensive plans and land use
regulations and periodic review of comprehensive plans and land
use regulations; and
(c) Focus the resources of the { - Department of Land
Conservation and Development - } { + Oregon Department of
Natural Resources + } on issues related to land supply within
urban growth boundaries and transportation and public facilities
necessary to stimulate economic growth.
SECTION 1035. ORS 285C.500, as amended by section 1, chapter
595, Oregon Laws 2005, is amended to read:
285C.500. As used in ORS 285C.500 to 285C.506:
(1) 'Business firm' has the meaning given that term in ORS
285C.050.
(2) 'County per capita personal income' means the per capita
personal income level published by the Bureau of Economic
Analysis of the United States Department of Commerce for a
county.
(3) 'County unemployment rate' means the most recently
available unemployment rate for the county, as determined by the
Employment Department.
(4) 'Facility' means the land, real property improvements and
personal property that are used by a business firm to conduct
business operations, and that are the subject of an application
for preliminary certification under ORS 285C.503 or annual
certification under ORS 285C.506.
(5) 'Qualified location' means any area that is:
(a) Zoned for industrial use or is within the urban growth
boundary of a city that has 15,000 or fewer residents; and
(b) Located in a county that, during either of the two years
preceding the date an application for preliminary certification
is filed under ORS 285C.503, had both:
(A) A county unemployment rate that was in the top half of
county unemployment rates in this state; and
(B) A county per capita personal income that was in the bottom
half of county per capita personal incomes in this state.
(6) 'Urban growth boundary' means an urban growth boundary
contained in a city or county comprehensive plan that has been
acknowledged by the { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + }
pursuant to ORS 197.251 or an urban growth boundary that has been
adopted by a metropolitan service district under ORS 268.390 (3).
SECTION 1036. ORS 308A.065 is amended to read:
308A.065. (1) Upon written request of the county assessor or
county governing body, the county counsel shall review the zoning
ordinances of the county that purport to establish exclusive farm
use zones to determine if any zone mentioned in the ordinance is
not an exclusive farm use zone. If the county counsel is in doubt
as to whether a zone is an exclusive farm use zone, the county
counsel shall request the assistance of the Department of Revenue
under ORS 305.110. The county counsel shall promptly notify the
county assessor and county governing body by letter of the
findings of the county counsel.
(2) If the assessor discovers any land that has been granted
farm use special assessment under ORS 308A.062 that is not
qualified for such assessment because the zone is not an
exclusive farm use zone, the assessor shall immediately notify
the county governing body of this fact.
(3) Within six months from the date the county governing body
receives notice from the assessor or from the { - Land
Conservation and Development Commission - } { + Oregon Natural
Resources Commission + } that a farm use zone is not an exclusive
farm use zone, the county governing body shall qualify the zone
as an exclusive farm use zone within the meaning of ORS 308A.062.
The assessor shall continue to assess the land at the special
assessment provided in ORS 308A.107 until the county governing
body qualifies the zone or the land is disqualified under ORS
308A.113.
(4) Subsections (1) to (3) of this section shall provide the
exclusive procedure for correcting the erroneous granting of farm
use special assessment as exclusive farm use zone farmland when
the zone does not meet the definition of an exclusive farm use
zone under ORS 308A.053.
SECTION 1037. ORS 308A.700 is amended to read:
308A.700. As used in ORS 308A.700 to 308A.733:
(1) 'Disqualification' includes the removal of forestland
designation under ORS 321.359, 321.712, 321.716 or 321.842.
(2) 'Urban growth boundary' means an urban growth boundary
contained in a city or county comprehensive plan that has been
acknowledged by the { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + }
pursuant to ORS 197.251 or an urban growth boundary that has been
adopted by a metropolitan service district under ORS 268.390 (3).
SECTION 1038. ORS 358.575 is amended to read:
358.575. (1) The voting members of the Oregon Heritage
Commission shall be composed of representatives of heritage
interests, including Indian tribes with federal recognition, that
reflect the cultural and geographic diversity of this state as
well as the heritage interests reflected in community
institutions, libraries, museums, architecture, archaeology and
historic preservation.
(2) The ex officio members of the commission shall be designees
of the following:
{ - (a) The Department of Land Conservation and
Development; - }
{ + (a) Oregon Department of Natural Resources; + }
(b) The Trustees of the State Library;
(c) The State Board of Higher Education;
(d) The Oregon Business Development Department;
(e) The Department of Education;
(f) The Executive Director of the Oregon Historical Society;
(g) The State Archivist; and
(h) The State Historic Preservation Officer.
SECTION 1039. ORS 367.850 is amended to read:
367.850. (1) Subject to the limitations in subsection (2) of
this section, if a local government is unable to meet the funding
requirements of the transportation planning rule adopted by the
{ - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + }, the local
government may:
(a) Apply for an extension of time to meet the requirements;
(b) Submit a plan to the Oregon Transportation Commission and
the Department of Transportation proposing alternative methods of
funding that will meet the standards adopted by the Oregon
Transportation Commission; or
(c) Apply to the Department of Transportation:
(A) To adjust various traffic performance measures during an
interim period prior to completion of construction of the
development in question for a period of no more than 20 years; or
(B) To allow various types of traffic performance measures
other than a volume to capacity ratio.
(2) The Oregon Transportation Commission may not approve more
than four applications for extension or alternative plans in each
Department of Transportation region in a calendar year. For
purposes of this subsection, the regions are as follows:
(a) Region one consists of Clackamas, Columbia, Hood River,
Multnomah and Washington Counties.
(b) Region two consists of Benton, Clatsop, Lane, Lincoln,
Linn, Marion, Polk, Tillamook and Yamhill Counties.
(c) Region three consists of Coos, Curry, Douglas, Jackson and
Josephine Counties.
(d) Region four consists of Crook, Deschutes, Gilliam,
Jefferson, Klamath, Lake, Sherman, Wasco and Wheeler Counties.
(e) Region five consists of Baker, Grant, Harney, Malheur,
Morrow, Umatilla, Union and Wallowa Counties.
(3) The Oregon Transportation Commission shall adopt rules for
the administration of this section. In adopting rules, the { +
Oregon Transportation + } Commission may not define under what
circumstances a local government is considered to be able to meet
the funding requirements of the transportation planning rule
adopted by the { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + }.
SECTION 1040. ORS 383.017 is amended to read:
383.017. (1) The Department of Transportation may award any
contract, franchise, license or agreement related to a tollway
project, other than a concession for the provision of goods or
services at a rest area, under a competitive process or by
private negotiation with one or more entities, or by any
combination of competition and negotiation without regard to any
other laws concerning the procurement of goods or services for
projects of the state.
(2) When using a competitive process for the award of a tollway
project contract, the department shall consider the following
factors in addition to the proposer's estimate of cost:
(a) The quality of the design, if applicable, submitted by a
proposer. In considering the quality of the design of a tollway
project, the department shall take into consideration:
(A) The structural integrity of the design, including the
probable effect of the design on the future costs of maintenance
of the tollway;
(B) The aesthetic qualities of the design, including such
factors as the width of lane separators, landscaping and sound
walls;
(C) The traffic capacity of the design;
(D) The aspects of the design that affect safety, such as the
lane width, the quality of lane markers and separators, the shape
and positioning of ramps and curves and the changes in elevation;
and
(E) The ease with which traffic will be able to pass through
the toll collection facilities.
(b) The extent to which small businesses will be involved in
the tollway project. The department shall encourage participation
by small businesses to the maximum extent the department
determines is practicable. As used in this paragraph, 'small
business' means an independent business with fewer than 20
employees and with average annual gross receipts over the last
three years not exceeding $1 million for construction firms and
$300,000 for nonconstruction firms. 'Small business' does not
include a subsidiary or parent company belonging to a group of
firms that are owned and controlled by the same individuals and
that have average aggregate annual gross receipts in excess of $1
million for construction firms or $300,000 for nonconstruction
firms over the last three years.
(c) The financial stability of the proposer and the ability of
the proposer to provide funding for the tollway project and
surety for its performance and financial obligations with respect
to the tollway project.
(d) The experience of the proposer and its subcontractors in
building and operating projects such as the tollway project.
(e) The terms of the financial arrangement proposed or accepted
by the proposer with respect to franchise fees, license fees,
lease payments or operating expenses and the proposer's required
rate of return from its operation or maintenance of the tollway.
(3)(a) The department may adopt rules and procedures for the
award of franchises, licenses, leases or other concessions for
rest areas without regard to any other laws concerning the
procurement of goods or services for projects of the state. All
such franchises, licenses, leases or other concessions shall
require the franchisee, licensee, lessee or concessionaire, as
applicable, to maintain the subject premises in accordance with
all applicable state and federal health and safety standards, to
maintain one or more policies of casualty and property insurance
and adequate workers' compensation insurance, and to pay and
discharge all taxes, utilities, fees and other charges or claims
that are levied, assessed or charged against the premises or
concession or that may become a lien upon the premises. The rules
shall encourage participation by small businesses to the maximum
extent the department determines is practicable. The department
may grant any small business a 10 percent or greater bid
advantage in any bidding process for a concession.
(b) As used in this subsection, 'small business' means an
independent business with fewer than 20 employees and with
average annual gross receipts over the last three years not
exceeding $300,000. 'Small business' does not include a
subsidiary or parent company belonging to a group of firms that
are owned and controlled by the same individuals and that have
average aggregate annual gross receipts in excess of $300,000
over the last three years. 'Small business' also does not include
a franchise of any business that has average aggregate annual
gross receipts in excess of $300,000 over the last three years.
(4) Notwithstanding any other provision of this section, the
department may use any method for the award of any contract,
franchise, license or agreement that is necessary to comply with
the requirements of any grant or other funding source.
(5) If public funds are involved in the project, construction
of a tollway project shall be subject to the prevailing wage
requirements of ORS 279C.800 to 279C.870.
(6) For purposes of complying with applicable state and local
land use laws, including statewide planning goals, comprehensive
plans, land use regulations, ORS chapters 195, 196, 197, 198,
199, 215, 221, 222 and 227, and any requirement imposed by the
{ - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + }, a tollway project
shall be treated as a project of the department and not as a
project of any other person or entity.
(7) Tollways, and any related facilities that would normally be
purchased, constructed or installed by the department if the
tollway were a conventional highway that was constructed and
operated by the department, shall be exempt from ad valorem
property taxation.
(8) Tollways are considered state highways for purposes of law
enforcement and application of the Oregon Vehicle Code.
SECTION 1041. ORS 456.571 is amended to read:
456.571. (1) The State Housing Council shall, with the advice
of the Director of the Housing and Community Services Department,
develop policies to aid in stimulating and increasing the supply
of housing for persons and families of lower income.
(2) The council shall make special effort to respond to both
private and public actions that may raise the cost of the housing
supply in the open market, as the open market is the source of
housing for the preponderance of lower income households.
(3) The council is responsible for studying and commenting
upon, and advising, the department, Governor, Legislative
Assembly, other state agencies and local governments concerning
local, state and federal legislation or rules that affect the
cost and supply of housing, both before and after the legislation
and rules are enacted. For purposes of this subsection,
'legislation or rules that affect the cost and supply of housing'
includes but is not limited to legislation or rules that would:
(a) Provide financing for the construction or rehabilitation of
housing;
(b) Subsidize new or existing housing costs for lower income
households by income support, tax credit, or support service
methods;
(c) Regulate the division of land;
(d) Regulate the use of land;
(e) Regulate building construction standards;
(f) Regulate fees and charges for inspection services, permits,
or professional services related to housing;
(g) Encourage alternatives that increase housing choices;
(h) Create or avert overlapping jurisdictional functions and
the concomitant increased costs that are reflected in housing
prices;
(i) Create or avoid conflicting state and federal regulations
that deprive lower income households of assistance; and
(j) Help or hinder compliance with the housing goals
established by the { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + }
under ORS 197.240.
(4) The council, with the approval of the Governor, may
initiate legal proceedings in the name of the council to further
the council's purposes under this section.
(5) The council shall exercise the responsibilities and powers
of the council in a manner that expedites the acquisition,
construction, improvement or rehabilitation of housing.
SECTION 1042. ORS 456.585 is amended to read:
456.585. The Housing and Community Services Department shall
serve as the primary state agency for farmworker housing
information. The department shall perform the following duties
related to farmworker housing information:
(1) Develop an information center for farmworker housing
financing information. The department shall consult with private
organizations and the Farmworker Housing Facilitation Team
established pursuant to subsection (3) of this section in
developing and operating the information center. The information
center shall include provision for access by the Internet.
(2) To the extent practicable, simplify the application process
for funding farmworker housing projects.
(3) Establish a Farmworker Housing Facilitation Team to provide
an ongoing discussion forum for state and local government
agencies that are involved with farmworker housing. Team members
shall include the Housing and Community Services Department, the
Occupational Safety and Health Division, the State Department of
Agriculture, the { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + },
the Employment Department and the Oregon State University
Extension Service. The Housing and Community Services Department
shall also invite Rural Development and the Farm Service Agency
of the United States Department of Agriculture, the United States
Department of Labor, local planning agencies and other interested
persons to be members of the team.
(4) Ensure that homeowner assistance programs engage in
outreach efforts to contact farmworkers.
(5) Promote the establishment and use of individual development
accounts by farmworkers and others.
(6) Use a statewide map of crop diversity to determine housing
needs, and facilitate the development of farmworker housing in
appropriate locations.
(7) Look at creative ways to provide housing, including but not
limited to time-share housing, cooperative housing, mobile and
portable housing and modular housing.
(8) Work with private businesses, state agencies and nonprofit
organizations to maximize the development of farmworker housing.
(9) To the extent practicable, refer housing-based conflicts to
dispute resolution processes.
SECTION 1043. ORS 458.710 is amended to read:
458.710. (1) There is created a Community Development Incentive
Advisory Board consisting of the following members:
(a) The Director of the Oregon Business Development Department;
(b) The Director of the Department of Environmental Quality;
(c) The Director of the Housing and Community Services
Department;
(d) The Director of the { - Department of Land Conservation
and Development - } { + Oregon Department of Natural
Resources + };
(e) The Director of Transportation;
(f) One representative from each of the following industries:
(A) Commercial real estate development;
(B) Residential real estate development; and
(C) Banking;
(g) One representative from each of the following:
(A) Community development organizations;
(B) Economic development organizations;
(C) Downtown development organizations;
(D) The Association of Oregon Counties; and
(E) The League of Oregon Cities; and
(h) One person not otherwise qualified under this subsection
who possesses a demonstrated interest in community development.
(2) Advisory board members described in subsection (1)(a) to
(e) of this section shall serve as ex officio members. An ex
officio member may delegate board membership duties to an
employee of the member's department.
(3) The Governor shall appoint the members described under
subsection (1)(f), (g) and (h) of this section. The appointments
shall be for a four-year term. Appointed members serve at the
pleasure of the Governor.
(4) All members of the advisory board are entitled to
compensation as provided under ORS 292.495 for actual and
necessary travel expenses incurred in the performance of board
duties. In addition, the members of the board representing
industries or organizations are entitled to compensation as
provided under ORS 292.495.
SECTION 1044. ORS 466.385 is amended to read:
466.385. (1) By the first periodic review after development of
model language under subsection (2) of this section, the
governing body of a city or county shall amend its comprehensive
plan and land use regulations as provided in ORS 197.610 to
197.650 to establish and implement policies regarding potentially
hazardous environmental conditions on sites listed under ORS
466.365. The land use regulations shall provide that:
(a) The city or county shall not approve any proposed use of a
disposal site for which the city or county has received notice
under ORS 466.370 until the Department of Environmental Quality
has been notified and provided the city or county with comments
on the proposed use; and
(b) Within 120 days of receipt of an environmental hazard
notice from the Department of Environmental Quality, the city or
county shall amend its zoning maps to identify the disposal site.
(2) The Department of Environmental Quality and the
{ - Department of Land Conservation and Development - }
{ + Oregon Department of Natural Resources + } shall:
(a) Develop model language for comprehensive plans and land use
regulations for use by cities and counties in complying with this
section; and
(b) Provide technical assistance to cities and counties in
complying with ORS 466.360 to 466.385.
(3) The Department of Environmental Quality may appeal to the
{ - Land Use Board of Appeals - } { + Oregon Department of
Natural Resources in the manner prescribed by ORS 197.830 to
197.845 + } any final land use decision or limited land use
decision made by a city or county regarding any proposed use of a
disposal site that has been identified under its comprehensive
plan and land use regulations pursuant to this section.
SECTION 1045. ORS 468A.363 is amended to read:
468A.363. The Legislative Assembly declares the purpose of ORS
468A.363, 468A.365, 468A.400 and 815.300 is to:
(1) Insure that the health of { - citizens - }
{ + residents + } in the Portland area is not threatened by
recurring air pollution conditions.
(2) Provide necessary authority to the Environmental Quality
Commission to implement one of the critical elements of the air
quality maintenance strategy for the Portland area related to
improvements in the motor vehicle inspection program.
(3) Insure that the Department of Environmental Quality is able
to submit an approvable air quality maintenance plan for the
Portland area through the year 2006 to the Environmental
Protection Agency as soon as possible so that area can again be
designated as an attainment area and impediments to industrial
growth imposed in the Clean Air Act can be removed.
(4) Direct the Environmental Quality Commission to use existing
authority to incorporate the following programs for emission
reduction credits into the air quality maintenance plan for the
Portland area:
(a) California or United States Environmental Protection Agency
emission standards for new lawn and garden equipment sold in the
Portland area.
(b) Transportation-efficient land use requirements of the
transportation planning rule adopted by the { - Land
Conservation and Development Commission - } { + Oregon Natural
Resources Commission + }.
(c) Improvements in the vehicle inspection program as
authorized in ORS 468A.350 to 468A.400, including emission
reduction from on-road vehicles resulting from enhanced testing,
elimination of exemptions for 1974 and later model year vehicles,
and expansion of inspection program boundaries.
(d) An employer trip reduction program that provides an
emission reduction from on-road vehicles.
(e) A parking ratio program that limits the construction of new
parking spaces for employment, retail and commercial locations.
(f) Emission reductions resulting from any new federal motor
vehicle fuel tax.
(g) State and federal alternative fuel vehicles fleet programs
that result in emission reductions.
(h) Installation of maximum achievable control technology by
major sources of hazardous air pollutants as required by the
federal Clean Air Act, as amended, resulting in emission
reductions.
(i) As a safety margin, or as a substitute in whole or in part
for other elements of the plan, emission reductions resulting
from any new state gasoline tax or for any new vehicle
registration fee that allows use of revenue for air quality
improvement purposes.
SECTION 1046. ORS 469.320 is amended to read:
469.320. (1) Except as provided in subsections (2) and (5) of
this section, no facility shall be constructed or expanded unless
a site certificate has been issued for the site thereof in the
manner provided in ORS 469.300 to 469.563, 469.590 to 469.619,
469.930 and 469.992. No facility shall be constructed or operated
except in conformity with the requirements of ORS 469.300 to
469.563, 469.590 to 469.619, 469.930 and 469.992.
(2) A site certificate is not required for:
(a) An energy facility for which no site certificate has been
issued that, on August 2, 1993, had operable electric generating
equipment for a modification that uses the same fuel type and
increases electric generating capacity, if:
(A) The site is not enlarged; and
(B) The ability of the energy facility to use fuel for
electricity production under peak steady state operating
conditions is not more than 200 million Btu per hour greater than
it was on August 2, 1993, or the energy facility expansion is
called for in the short-term plan of action of an energy resource
plan that has been acknowledged by the Public Utility Commission
of Oregon.
(b) Construction or expansion of any interstate natural gas
pipeline or associated underground natural gas storage facility
authorized by and subject to the continuing regulation of the
Federal Energy Regulatory Commission or successor agency.
(c) An energy facility, except coal and nuclear power plants,
if the energy facility:
(A) Sequentially produces electrical energy and useful thermal
energy from the same fuel source; and
(B) Under average annual operating conditions, has a nominal
electric generating capacity:
(i) Of less than 50 megawatts and the fuel chargeable to power
heat rate value is not greater than 6,000 Btu per kilowatt hour;
(ii) Of 50 megawatts or more and the fuel chargeable to power
heat rate value is not greater than 5,500 Btu per kilowatt hour;
or
(iii) Specified by the Energy Facility Siting Council by rule
based on the council's determination relating to emissions of the
energy facility.
(d) Temporary storage, at the site of a nuclear-fueled thermal
power plant for which a site certificate has been issued by the
State of Oregon, of radioactive waste from the plant.
(e) An energy facility as defined in ORS 469.300 (11)(a)(G), if
the plant also produces a secondary fuel used on site for the
production of heat or electricity, if the output of the primary
fuel is less than six billion Btu of heat a day.
(f) An energy facility as defined in ORS 469.300 (11)(a)(G), if
the facility:
(A) Exclusively uses biomass, including but not limited to
grain, whey, potatoes, oil seeds, waste vegetable oil or
cellulosic biomass, as the source of material for conversion to a
liquid fuel;
(B) Has received local land use approval under the applicable
acknowledged comprehensive plan and land use regulations of the
affected local government and the facility complies with any
statewide planning goals or rules of the { - Land Conservation
and Development Commission - } { + Oregon Natural Resources
Commission + } that are directly applicable to the facility;
(C) Requires no new electric transmission lines or gas or
petroleum product pipelines that would require a site certificate
under subsection (1) of this section;
(D) Produces synthetic fuel, at least 90 percent of which is
used in an industrial or refueling facility located within one
mile of the facility or is transported from the facility by rail
or barge; and
(E) Emits less than 118 pounds of carbon dioxide per million
Btu from fossil fuel used for conversion energy.
(g) A standby generation facility, if the facility complies
with all of the following:
(A) The facility has received local land use approval under the
applicable acknowledged comprehensive plan and land use
regulations of the affected local government and the facility
complies with all statewide planning goals and applicable rules
of the { - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + };
(B) The standby generators have been approved by the Department
of Environmental Quality as having complied with all applicable
air and water quality requirements. For an applicant that
proposes to provide the physical facilities for the installation
of standby generators, the requirement of this subparagraph may
be met by agreeing to require such a term in the lease contract
for the facility; and
(C) The standby generators are electrically incapable of being
interconnected to the transmission grid. For an applicant that
proposes to provide the physical facilities for the installation
of standby generators, the requirement of this subparagraph may
be met by agreeing to require such a term in the lease contract
for the facility.
(3) The Energy Facility Siting Council may review and, if
necessary, revise the fuel chargeable to power heat rate value
set forth in subsection (2)(c)(B) of this section. In making its
determination, the council shall ensure that the fuel chargeable
to power heat rate value for facilities set forth in subsection
(2)(c)(B) of this section remains significantly lower than the
fuel chargeable to power heat rate value for the best available,
commercially viable thermal power plant technology at the time of
the revision.
(4) Any person who proposes to construct or enlarge an energy
facility and who claims an exemption under subsection (2)(a),
(c), (f) or (g) of this section from the requirement to obtain a
site certificate shall request the Energy Facility Siting Council
to determine whether the proposed facility qualifies for the
claimed exemption. The council shall make its determination
within 60 days after the request for exemption is filed. An
appeal from the council's determination on a request for
exemption shall be made under ORS 469.403, except that the scope
of review by the Supreme Court shall be the same as a review by a
circuit court under ORS 183.484. The record on review by the
Supreme Court shall be the record established in the council
proceeding on the exemption.
(5) Notwithstanding subsection (1) of this section, a separate
site certificate shall not be required for:
(a) Transmission lines, storage facilities, pipelines or
similar related or supporting facilities, if such related or
supporting facilities are addressed in and are subject to a site
certificate for another energy facility;
(b) Expansion within the site or within the energy generation
area of a facility for which a site certificate has been issued,
if the existing site certificate has been amended to authorize
expansion; or
(c) Expansion, either within the site or outside the site, of
an existing council certified surface facility related to an
underground gas storage reservoir, if the existing site
certificate is amended to authorize expansion.
(6) If the substantial loss of the steam host causes a facility
exempt under subsection (2)(c) of this section to substantially
fail to meet the exemption requirements under subsection (2)(c)
of this section, the electric generating facility shall cease to
operate one year after the substantial loss of the steam host
unless an application for a site certificate has been filed in
accordance with the provisions of ORS 469.300 to 469.563.
(7) As used in this section:
(a) 'Standby generation facility' means an electric power
generating facility, including standby generators and the
physical structures necessary to install and connect standby
generators, that provides temporary electric power in the event
of a power outage and that is electrically incapable of being
interconnected with the transmission grid.
(b) 'Total energy output' means the sum of useful thermal
energy output and useful electrical energy output.
(c) 'Useful thermal energy' means the verifiable thermal energy
used in any viable industrial or commercial process, heating or
cooling application.
(8) Notwithstanding the definition of 'energy facility' in ORS
469.300 (11)(a)(J), an electric power generating plant with an
average electric generating capacity of less than 35 megawatts
produced from wind energy at a single energy facility or within a
single energy generation area may elect to obtain a site
certificate in the manner provided in ORS 469.300 to 469.563,
469.590 to 469.619, 469.930 and 469.992. An election to obtain a
site certificate under this subsection shall be final upon
submission of an application for a site certificate.
{ + NOTE: + } Section 1047 was deleted. Subsequent sections
were not renumbered.
SECTION 1048. ORS 469.501 is amended to read:
469.501. (1) The Energy Facility Siting Council shall adopt
standards for the siting, construction, operation and retirement
of facilities. The standards may address but need not be limited
to the following subjects:
(a) The organizational, managerial and technical expertise of
the applicant to construct and operate the proposed facility.
(b) Seismic hazards.
(c) Areas designated for protection by the state or federal
government, including but not limited to monuments, wilderness
areas, wildlife refuges, scenic waterways and similar areas.
(d) The financial ability and qualifications of the applicant.
(e) Effects of the facility, taking into account mitigation, on
fish and wildlife, including threatened and endangered fish,
wildlife or plant species.
(f) Impacts of the facility on historic, cultural or
archaeological resources listed on, or determined by the State
Historic Preservation Officer to be eligible for listing on, the
National Register of Historic Places or the Oregon State Register
of Historic Properties.
(g) Protection of public health and safety, including necessary
safety devices and procedures.
(h) The accumulation, storage, disposal and transportation of
nuclear waste.
(i) Impacts of the facility on recreation, scenic and aesthetic
values.
(j) Reduction of solid waste and wastewater generation to the
extent reasonably practicable.
(k) Ability of the communities in the affected area to provide
sewers and sewage treatment, water, storm water drainage, solid
waste management, housing, traffic safety, police and fire
protection, health care and schools.
(L) The need for proposed nongenerating facilities as defined
in ORS 469.503, consistent with the state energy policy set forth
in ORS 469.010 and 469.310. The council may consider least-cost
plans when adopting a need standard or in determining whether an
applicable need standard has been met. The council shall not
adopt a standard requiring a showing of need or
cost-effectiveness for generating facilities as defined in ORS
469.503.
(m) Compliance with the statewide planning goals adopted by the
{ - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + } as specified by ORS
469.503.
(n) Soil protection.
(o) For energy facilities that emit carbon dioxide, the impacts
of those emissions on climate change. For fossil-fueled power
plants, as defined in ORS 469.503, the council shall apply a
standard as provided for by ORS 469.503 (2).
(2) The council may adopt exemptions from any need standard
adopted under subsection (1)(L) of this section if the exemption
is consistent with the state's energy policy set forth in ORS
469.010 and 469.310.
(3) The council may issue a site certificate for a facility
that does not meet one or more of the standards adopted under
subsection (1) of this section if the council determines that the
overall public benefits of the facility outweigh the damage to
the resources protected by the standards the facility does not
meet.
(4) Notwithstanding subsection (1) of this section, the council
may not impose any standard developed under subsection (1)(b),
(f), (j) or (k) of this section to approve or deny an application
for an energy facility producing power from wind, solar or
geothermal energy. However, the council may, to the extent it
determines appropriate, apply any standards adopted under
subsection (1)(b), (f), (j) or (k) of this section to impose
conditions on any site certificate issued for any energy
facility.
SECTION 1049. ORS 469.503 is amended to read:
469.503. In order to issue a site certificate, the Energy
Facility Siting Council shall determine that the preponderance of
the evidence on the record supports the following conclusions:
(1) The facility complies with the standards adopted by the
council pursuant to ORS 469.501 or the overall public benefits of
the facility outweigh the damage to the resources protected by
the standards the facility does not meet.
(2) If the energy facility is a fossil-fueled power plant, the
energy facility complies with any applicable carbon dioxide
emissions standard adopted by the council or enacted by statute.
Base load gas plants shall comply with the standard set forth in
subsection (2)(a) of this section. Other fossil-fueled power
plants shall comply with any applicable standard adopted by the
council by rule pursuant to subsection (2)(b) of this section.
Subsections (2)(c) and (d) of this section prescribe the means by
which an applicant may comply with the applicable standard.
(a) The net carbon dioxide emissions rate of the proposed base
load gas plant shall not exceed 0.70 pounds of carbon dioxide
emissions per kilowatt hour of net electric power output, with
carbon dioxide emissions and net electric power output measured
on a new and clean basis. Notwithstanding the foregoing, the
council may by rule modify the carbon dioxide emissions standard
for base load gas plants if the council finds that the most
efficient stand-alone combined cycle, combustion turbine, natural
gas-fired energy facility that is commercially demonstrated and
operating in the United States has a net heat rate of less than
7,200 Btu per kilowatt hour higher heating value adjusted to ISO
conditions. In modifying the carbon dioxide emission standard,
the council shall determine the rate of carbon dioxide emissions
per kilowatt hour of net electric output of such energy facility,
adjusted to ISO conditions, and reset the carbon dioxide
emissions standard at 17 percent below this rate.
(b) The council shall adopt carbon dioxide emissions standards
for other types of fossil-fueled power plants. Such carbon
dioxide emissions standards shall be promulgated by rule. In
adopting or amending such carbon dioxide emissions standards, the
council shall consider and balance at least the following
principles, the findings on which shall be contained in the
rulemaking record:
(A) Promote facility fuel efficiency;
(B) Promote efficiency in the resource mix;
(C) Reduce net carbon dioxide emissions;
(D) Promote cogeneration that reduces net carbon dioxide
emissions;
(E) Promote innovative technologies and creative approaches to
mitigating, reducing or avoiding carbon dioxide emissions;
(F) Minimize transaction costs;
(G) Include an alternative process that separates decisions on
the form and implementation of offsets from the final decision on
granting a site certificate;
(H) Allow either the applicant or third parties to implement
offsets;
(I) Be attainable and economically achievable for various types
of power plants;
(J) Promote public participation in the selection and review of
offsets;
(K) Promote prompt implementation of offset projects;
(L) Provide for monitoring and evaluation of the performance of
offsets; and
(M) Promote reliability of the regional electric system.
(c) The council shall determine whether the applicable carbon
dioxide emissions standard is met by first determining the gross
carbon dioxide emissions that are reasonably likely to result
from the operation of the proposed energy facility. Such
determination shall be based on the proposed design of the energy
facility. The council shall adopt site certificate conditions to
ensure that the predicted carbon dioxide emissions are not
exceeded on a new and clean basis. For any remaining emissions
reduction necessary to meet the applicable standard, the
applicant may elect to use any of subparagraphs (A) to (D) of
this paragraph, or any combination thereof. The council shall
determine the amount of carbon dioxide emissions reduction that
is reasonably likely to result from the applicant's offsets and
whether the resulting net carbon dioxide emissions meet the
applicable carbon dioxide emissions standard. If the council or
a court on judicial review concludes that the applicant has not
demonstrated compliance with the applicable carbon dioxide
emissions standard under subparagraphs (A), (B) or (D) of this
paragraph, or any combination thereof, and the applicant has
agreed to meet the requirements of subparagraph (C) of this
paragraph for any deficiency, the council or a court shall find
compliance based on such agreement.
(A) The facility will sequentially produce electrical and
thermal energy from the same fuel source, and the thermal energy
will be used to displace another source of carbon dioxide
emissions that would have otherwise continued to occur, in which
case the council shall adopt site certificate conditions ensuring
that the carbon dioxide emissions reduction will be achieved.
(B) The applicant or a third party will implement particular
offsets, in which case the council may adopt site certificate
conditions ensuring that the proposed offsets are implemented but
shall not require that predicted levels of avoidance,
displacement or sequestration of carbon dioxide emissions be
achieved. The council shall determine the quantity of carbon
dioxide emissions reduction that is reasonably likely to result
from each of the proposed offsets based on the criteria in
sub-subparagraphs (i) to (iii) of this subparagraph. In making
this determination, the council shall not allow credit for
offsets that have already been allocated or awarded credit for
carbon dioxide emissions reduction in another regulatory setting.
In addition, the fact that an applicant or other parties involved
with an offset may derive benefits from the offset other than the
reduction of carbon dioxide emissions is not, by itself, a basis
for withholding credit for an offset.
(i) The degree of certainty that the predicted quantity of
carbon dioxide emissions reduction will be achieved by the
offset;
(ii) The ability of the council to determine the actual
quantity of carbon dioxide emissions reduction resulting from the
offset, taking into consideration any proposed measurement,
monitoring and evaluation of mitigation measure performance; and
(iii) The extent to which the reduction of carbon dioxide
emissions would occur in the absence of the offsets.
(C) The applicant or a third party agrees to provide funds in
an amount deemed sufficient to produce the reduction in carbon
dioxide emissions necessary to meet the applicable carbon dioxide
emissions standard, in which case the funds shall be used as
specified in paragraph (d) of this subsection. Unless modified by
the council as provided below, the payment of 57 cents shall be
deemed to result in a reduction of one ton of carbon dioxide
emissions. The council shall determine the offset funds using the
monetary offset rate and the level of emissions reduction
required to meet the applicable standard. If a site certificate
is approved based on this subparagraph, the council may not
adjust the amount of such offset funds based on the actual
performance of offsets. After three years from June 26, 1997,
the council may by rule increase or decrease the monetary offset
rate of 57 cents per ton of carbon dioxide emissions. Any change
to the monetary offset rate shall be based on empirical evidence
of the cost of carbon dioxide offsets and the council's finding
that the standard will be economically achievable with the
modified rate for natural gas-fired power plants. Following the
initial three-year period, the council may increase or decrease
the monetary offset rate no more than 50 percent in any two-year
period.
(D) Any other means that the council adopts by rule for
demonstrating compliance with any applicable carbon dioxide
emissions standard.
(d) If the applicant elects to meet the applicable carbon
dioxide emissions standard in whole or in part under paragraph
(c)(C) of this subsection the applicant shall identify the
qualified organization. The applicant may identify an
organization that has applied for, but has not received, an
exemption from federal income taxation, but the council may not
find that the organization is a qualified organization unless the
organization is exempt from federal taxation under section
501(c)(3) of the Internal Revenue Code as amended and in effect
on December 31, 1996. The site certificate holder shall provide a
bond or comparable security in a form reasonably acceptable to
the council to ensure the payment of the offset funds and the
amount required under subparagraph (A)(ii) of this paragraph.
Such security shall be provided by the date specified in the site
certificate, which shall be no later than the commencement of
construction of the facility. The site certificate shall require
that the offset funds be disbursed as specified in subparagraph
(A) of this paragraph, unless the council finds that no qualified
organization exists, in which case the site certificate shall
require that the offset funds be disbursed as specified in
subparagraph (B) of this paragraph.
(A) The site certificate holder shall disburse the offset funds
and any other funds required by sub-subparagraph (ii) of this
subparagraph to the qualified organization as follows:
(i) When the site certificate holder receives written notice
from the qualified organization certifying that the qualified
organization is contractually obligated to pay any funds to
implement offsets using the offset funds, the site certificate
holder shall make the requested amount available to the qualified
organization unless the total of the amount requested and any
amounts previously requested exceeds the offset funds, in which
case only the remaining amount of the offset funds shall be made
available. The qualified organization shall use at least 80
percent of the offset funds for contracts to implement offsets.
The qualified organization may use up to 20 percent of the offset
funds for monitoring, evaluation, administration and enforcement
of contracts to implement offsets.
(ii) At the request of the qualified organization and in
addition to the offset funds, the site certificate holder shall
pay the qualified organization an amount equal to 10 percent of
the first $500,000 of the offset funds and 4.286 percent of any
offset funds in excess of $500,000. This amount shall not be less
than $50,000 unless a lesser amount is specified in the site
certificate. This amount compensates the qualified organization
for its costs of selecting offsets and contracting for the
implementation of offsets.
(iii) Notwithstanding any provision to the contrary, a site
certificate holder subject to this subparagraph shall have no
obligation with regard to offsets, the offset funds or the funds
required by sub-subparagraph (ii) of this subparagraph other than
to make available to the qualified organization the total amount
required under paragraph (c) of this subsection and
sub-subparagraph (ii) of this subparagraph, nor shall any
nonperformance, negligence or misconduct on the part of the
qualified organization be a basis for revocation of the site
certificate or any other enforcement action by the council with
respect to the site certificate holder.
(B) If the council finds there is no qualified organization,
the site certificate holder shall select one or more offsets to
be implemented pursuant to criteria established by the council.
The site certificate holder shall give written notice of its
selections to the council and to any person requesting notice. On
petition by the State Department of Energy, or by any person
adversely affected or aggrieved by the site certificate holder's
selection of offsets, or on the council's own motion, the council
may review such selection. The petition must be received by the
council within 30 days of the date the notice of selection is
placed in the United States mail, with first-class postage
prepaid. The council shall approve the site certificate holder's
selection unless it finds that the selection is not consistent
with criteria established by the council. The site certificate
holder shall contract to implement the selected offsets within 18
months after commencing construction of the facility unless good
cause is shown requiring additional time. The contracts shall
obligate the expenditure of at least 85 percent of the offset
funds for the implementation of offsets. No more than 15 percent
of the offset funds may be spent on monitoring, evaluation and
enforcement of the contract to implement the selected offsets.
The council's criteria for selection of offsets shall be based on
the criteria set forth in paragraphs (b)(C) and (c)(B) of this
subsection and may also consider the costs of particular types of
offsets in relation to the expected benefits of such offsets. The
council's criteria shall not require the site certificate holder
to select particular offsets, and shall allow the site
certificate holder a reasonable range of choices in selecting
offsets. In addition, notwithstanding any other provision of this
section, the site certificate holder's financial liability for
implementation, monitoring, evaluation and enforcement of offsets
pursuant to this subsection shall be limited to the amount of any
offset funds not already contractually obligated. Nonperformance,
negligence or misconduct by the entity or entities implementing,
monitoring or evaluating the selected offset shall not be a basis
for revocation of the site certificate or any other enforcement
action by the council with respect to the site certificate
holder.
(C) Every qualified organization that has received funds under
this paragraph shall, at five-year intervals beginning on the
date of receipt of such funds, provide the council with the
information the council requests about the qualified
organization's performance. The council shall evaluate the
information requested and, based on such information, shall make
any recommendations to the Legislative Assembly that the council
deems appropriate.
(e) As used in this subsection:
(A) 'Adjusted to ISO conditions' means carbon dioxide emissions
and net electric power output as determined at 59 degrees
Fahrenheit, 14.7 pounds per square inch atmospheric pressure and
60 percent humidity.
(B) 'Base load gas plant' means a generating facility that is
fueled by natural gas, except for periods during which an
alternative fuel may be used and when such alternative fuel use
shall not exceed 10 percent of expected fuel use in Btu, higher
heating value, on an average annual basis, and where the
applicant requests and the council adopts no condition in the
site certificate for the generating facility that would limit
hours of operation other than restrictions on the use of
alternative fuel. The council shall assume a 100 percent
capacity factor for such plants and a 30-year life for the plants
for purposes of determining gross carbon dioxide emissions.
(C) 'Fossil-fueled power plant' means a generating facility
that produces electric power from natural gas, petroleum, coal or
any form of solid, liquid or gaseous fuel derived from such
material.
(D) 'Generating facility' means those energy facilities that
are defined in ORS 469.300 (11)(a)(A), (B) and (D).
(E) 'Gross carbon dioxide emissions' means the predicted carbon
dioxide emissions of the proposed energy facility measured on a
new and clean basis.
(F) 'Net carbon dioxide emissions' means gross carbon dioxide
emissions of the proposed energy facility, less carbon dioxide
emissions avoided, displaced or sequestered by any combination of
cogeneration or offsets.
(G) 'New and clean basis' means the average carbon dioxide
emissions rate per hour and net electric power output of the
energy facility, without degradation, as determined by a 100-hour
test at full power completed during the first 12 months of
commercial operation of the energy facility, with the results
adjusted for the average annual site condition for temperature,
barometric pressure and relative humidity and use of alternative
fuels, and using a rate of 117 pounds of carbon dioxide per
million Btu of natural gas fuel and a rate of 161 pounds of
carbon dioxide per million Btu of distillate fuel, if such fuel
use is proposed by the applicant. The council may by rule adjust
the rate of pounds of carbon dioxide per million Btu for natural
gas or distillate fuel. The council may by rule set carbon
dioxide emissions rates for other fuels.
(H) 'Nongenerating facility' means those energy facilities that
are defined in ORS 469.300 (11)(a)(C) and (E) to (I).
(I) 'Offset' means an action that will be implemented by the
applicant, a third party or through the qualified organization to
avoid, sequester or displace emissions of carbon dioxide.
(J) 'Offset funds' means the amount of funds determined by the
council to satisfy the applicable carbon dioxide emissions
standard pursuant to paragraph (c)(C) of this subsection.
(K) 'Qualified organization' means an entity that:
(i) Is exempt from federal taxation under section 501(c)(3) of
the Internal Revenue Code as amended and in effect on December
31, 1996;
(ii) Either is incorporated in the State of Oregon or is a
foreign corporation authorized to do business in the State of
Oregon;
(iii) Has in effect articles of incorporation that require that
offset funds received pursuant to this section are used for
offsets that will result in the direct reduction, elimination,
sequestration or avoidance of carbon dioxide emissions, that
require that decisions on the use of such funds are made by a
body composed of seven voting members of which three are
appointed by the council, three are Oregon residents appointed by
the Bullitt Foundation or an alternative environmental nonprofit
organization named by the body, and one is appointed by the
applicants for site certificates that are subject to paragraph
(d) of this subsection and the holders of such site certificates,
and that require nonvoting membership on the decision-making body
for holders of site certificates that have provided funds not yet
disbursed under paragraph (d)(A) of this subsection;
(iv) Has made available on an annual basis, beginning after the
first year of operation, a signed opinion of an independent
certified public accountant stating that the qualified
organization's use of funds pursuant to this statute conforms
with generally accepted accounting procedures except that the
qualified organization shall have one year to conform with
generally accepted accounting principles in the event of a
nonconforming audit;
(v) Has to the extent applicable, except for good cause,
entered into contracts obligating at least 60 percent of the
offset funds to implement offsets within two years after the
commencement of construction of the facility; and
(vi) Has to the extent applicable, except for good cause,
complied with paragraph (d)(A)(i) of this subsection.
(3) Except as provided in ORS 469.504 for land use compliance
and except for those statutes and rules for which the decision on
compliance has been delegated by the federal government to a
state agency other than the council, the facility complies with
all other Oregon statutes and administrative rules identified in
the project order, as amended, as applicable to the issuance of a
site certificate for the proposed facility. If compliance with
applicable Oregon statutes and administrative rules, other than
those involving federally delegated programs, would result in
conflicting conditions in the site certificate, the council may
resolve the conflict consistent with the public interest. A
resolution may not result in the waiver of any applicable state
statute.
(4) The facility complies with the statewide planning goals
adopted by the { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission pursuant
to ORS 197.230 + }.
SECTION 1050. ORS 469.504 is amended to read:
469.504. (1) A proposed facility shall be found in compliance
with the statewide planning goals under ORS 469.503 (4) if:
(a) The facility has received local land use approval under the
acknowledged comprehensive plan and land use regulations of the
affected local government; or
(b) The Energy Facility Siting Council determines that:
(A) The facility complies with { + :
(i) + } Applicable substantive criteria from the affected local
government's acknowledged comprehensive plan and land use
regulations that are required by { - the - } statewide
planning goals { + adopted by the Oregon Natural Resources
Commission pursuant to ORS 197.230 + } and { + that are + } in
effect on the date the application is submitted { - , and with
any Land Conservation and Development Commission administrative
rules and goals and any land use statutes that apply directly to
the facility under ORS 197.646 - } ; { + and + }
{ + (ii) Any rules or goals adopted by the commission or land
use laws that apply directly to the facility under ORS
197.646; + }
(B) For an energy facility or a related or supporting facility
that must be evaluated against the applicable substantive
criteria pursuant to subsection (5) of this section, that the
proposed facility does not comply with one or more of the
applicable substantive criteria but does otherwise comply with
the applicable statewide planning goals, or that an exception to
any applicable statewide planning goal is justified under
subsection (2) of this section; or
(C) For a facility that the council elects to evaluate against
the statewide planning goals pursuant to subsection (5) of this
section, that the proposed facility complies with the applicable
statewide planning goals or that an exception to any applicable
statewide planning goal is justified under subsection (2) of this
section.
(2) The council may find goal compliance for a facility that
does not otherwise comply with one or more statewide planning
goals by taking an exception to the applicable goal.
Notwithstanding the requirements of ORS 197.732, the statewide
planning goal pertaining to the exception process or any rules of
the { - Land Conservation and Development - } commission
pertaining to an exception process goal, the council may take an
exception to a goal if the council finds:
(a) The land subject to the exception is physically developed
to the extent that the land is no longer available for uses
allowed by the applicable goal;
(b) The land subject to the exception is irrevocably committed
as described by the rules of the { - Land Conservation and
Development - } commission to uses not allowed by the applicable
goal because existing adjacent uses and other relevant factors
make uses allowed by the applicable goal impracticable; or
(c) The following standards are met:
(A) Reasons justify why the state policy embodied in the
applicable goal should not apply;
(B) The significant environmental, economic, social and energy
consequences anticipated as a result of the proposed facility
have been identified and adverse impacts will be mitigated in
accordance with rules of the council applicable to the siting of
the proposed facility; and
(C) The proposed facility is compatible with other adjacent
uses or will be made compatible through measures designed to
reduce adverse impacts.
(3) If compliance with applicable substantive local criteria
and applicable statutes and state administrative rules would
result in conflicting conditions in the site certificate or
amended site certificate, the council shall resolve the conflict
consistent with the public interest. A resolution may not result
in a waiver of any applicable state statute.
(4) An applicant for a site certificate shall elect whether to
demonstrate compliance with the statewide planning goals under
subsection (1)(a) or (b) of this section. The applicant shall
make the election on or before the date specified by the council
by rule.
(5) Upon request by the State Department of Energy, the special
advisory group established under ORS 469.480 shall recommend to
the council, within the time stated in the request, the
applicable substantive criteria under subsection (1)(b)(A) of
this section. If the special advisory group does not recommend
applicable substantive criteria within the time established in
the department's request, the council may either determine and
apply the applicable substantive criteria under subsection (1)(b)
of this section or determine compliance with the statewide
planning goals under subsection (1)(b)(B) or (C) of this section.
If the special advisory group recommends applicable substantive
criteria for an energy facility described in ORS 469.300 or a
related or supporting facility that does not pass through more
than one local government jurisdiction or more than three zones
in any one jurisdiction, the council shall apply the criteria
recommended by the special advisory group. If the special
advisory group recommends applicable substantive criteria for an
energy facility as defined in ORS 469.300 (11)(a)(C) to (E) or a
related or supporting facility that passes through more than one
jurisdiction or more than three zones in any one jurisdiction,
the council shall review the recommended criteria and determine
whether to evaluate the proposed facility against the applicable
substantive criteria recommended by the special advisory group,
against the statewide planning goals or against a combination of
the applicable substantive criteria and statewide planning goals.
In making its determination, the council shall consult with the
special advisory group and shall consider:
(a) The number of jurisdictions and zones in question;
(b) The degree to which the applicable substantive criteria
reflect local government consideration of energy facilities in
the planning process; and
(c) The level of consistency of the applicable substantive
criteria from the various zones and jurisdictions.
(6) The council is not subject to ORS 197.180 and a state
agency may not require an applicant for a site certificate to
comply with any rules or programs adopted under ORS 197.180.
(7) On or before its next periodic review, each affected local
government shall amend its comprehensive plan and land use
regulations as necessary to reflect the decision of the council
pertaining to a site certificate or amended site certificate.
(8) Notwithstanding ORS 34.020 or 197.825 or any other
provision of law, the affected local government's land use
approval of a proposed facility under subsection (1)(a) of this
section and the special advisory group's recommendation of
applicable substantive criteria under subsection (5) of this
section shall be subject to judicial review only as provided in
ORS 469.403. If the applicant elects to comply with subsection
(1)(a) of this section, the provisions of this subsection shall
apply only to proposed projects for which the land use approval
of the local government occurs after the date a notice of intent
or an application for expedited processing is submitted to the
State Department of Energy.
(9) The State Department of Energy, in cooperation with other
state agencies, shall provide, to the extent possible, technical
assistance and information about the siting process to local
governments that request such assistance or that anticipate
having a facility proposed in their jurisdiction.
SECTION 1051. ORS 835.114 is amended to read:
835.114. Except as required under ORS 197.180, the Oregon
Department of Aviation may not adopt any rules intended primarily
to implement ORS chapter 197, 215 or 227. The department shall
comply with the land use planning goals and guidelines adopted
under ORS 197.225 and rules adopted under ORS 197.040. The
department may make recommendations to the { - Department of
Land Conservation and Development - } { + Oregon Department of
Natural Resources + } regarding land use issues.
SECTION 1052. ORS 836.608 is amended to read:
836.608. (1) The continued operation and vitality of airports
registered, licensed or otherwise recognized by the Department of
Transportation on December 31, 1994, is a matter of state
concern.
(2) A local government shall recognize in its planning
documents the location of private-use airports and privately
owned public-use airports not listed under ORS 836.610 (3) if the
airport was the base for three or more aircraft, as shown in the
records of the Department of Transportation, on December 31,
1994. Local planning documents shall establish a boundary
showing areas in airport ownership, or subject to long-term
lease, that are developed or committed to airport uses described
in ORS 836.616 (2). Areas committed to airport uses shall include
those areas identified by the airport owner that the local
government determines can be reasonably expected to be devoted to
airport uses allowed under ORS 836.616 (2).
(3)(a) A local government shall not impose limitations on the
continued operation of uses described in ORS 836.616 (2) that
existed at any time during 1996 at an airport described in
subsection (2) of this section. A local government shall allow
for the growth of uses described in ORS 836.616 (2) that existed
at any time during 1996 at an airport described in subsection (2)
of this section. A local government shall not impose additional
limitations on a use approved by the local government prior to
January 1, 1997, for an airport described in subsection (2) of
this section. Notwithstanding subsection (4) of this section, the
construction of additional hangars or tie-downs by the owner of
an airport described in subsection (2) of this section, basing
additional aircraft and increases in flight activity shall be
permitted at an airport described in subsection (2) of this
section.
(b) A local government may authorize the establishment of a new
use described in ORS 836.616 (2) at an airport described in
subsection (2) of this section following a public hearing on the
use. The hearing shall be for the purpose of establishing
compliance with adopted clear and objective standards relating to
the compatibility and adequacy of public facilities and services
as provided under subsection (5) of this section. Standards and
requirements as adopted by the local government shall further the
policy of ORS 836.600 to the maximum extent practicable.
(4) Growth of an existing use on an airport as described in
subsection (3)(a) of this section that requires a building permit
shall be allowed as an administrative decision without public
hearing unless the growth:
(a) Cannot be supported by existing public facilities and
services and transportation systems authorized by applicable
statewide land use planning goals;
(b) Forces a significant change or significantly increases the
costs of conducting existing uses on surrounding lands; or
(c) Exceeds the standards of ORS 215.296 (1) if the airport is
adjacent to land zoned for exclusive farm use.
(5) A local government shall authorize a new use described in
subsection (3)(b) of this section provided the use:
(a) Is or will be supported by adequate types and levels of
public facilities and services and transportation systems
authorized by applicable statewide land use planning goals;
(b) Does not seriously interfere with existing land uses in
areas surrounding the airport; and
(c) The local government reviews the use under the standards
described in ORS 215.296 if the airport is adjacent to land zoned
for exclusive farm use.
(6) An applicant for a new use under subsection (5) of this
section may demonstrate that the standards for approval will be
satisfied through the imposition of conditions. Any conditions
imposed shall be clear and objective.
(7) A local government may adopt standards and requirements for
the establishment of new airports, the expansion of existing
airports and the regulation of uses and activities at airports
serving as the base for two or fewer aircraft on December 31,
1994, as shown in the records of the Department of
Transportation. The standards and requirements shall comply with
applicable statewide land use planning laws.
(8) The { - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + } shall adopt rules
regulating the height of structures to protect approach corridors
at airports described in subsection (2) of this section and at
publicly owned airports that are the base for two or fewer
aircraft.
SECTION 1053. ORS 836.610 is amended to read:
836.610. (1) Local governments shall amend their comprehensive
plan and land use regulations consistent with the rules for
airports adopted by the { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + }
under ORS 836.616 and 836.619. Airports subject to the rules
shall include:
(a) Publicly owned airports registered, licensed or otherwise
recognized by the Department of Transportation on or before
December 31, 1994, that in 1994 were the base for three or more
aircraft; and
(b) Privately owned public-use airports specifically identified
in administrative rules of the Oregon Department of Aviation
that:
(A) Provide important links in air traffic in this state;
(B) Provide essential safety or emergency services; or
(C) Are of economic importance to the county where the airport
is located.
(2)(a) Local governments shall amend their comprehensive plan
and land use regulations as required under subsection (1) of this
section not later than the first periodic review, as described in
ORS 197.628 to 197.650, conducted after the date of the adoption
of a list of airports by the Oregon Department of Aviation under
subsection (3) of this section.
(b) A state agency or other person may provide funding to a
local government to accomplish the planning requirements of this
section earlier than otherwise required under this subsection.
(3) The Oregon Department of Aviation by rule shall adopt a
list of airports described in subsection (1) of this section. The
rules shall be reviewed and updated periodically to add or remove
airports from the list. An airport may be removed from the list
only upon request of the airport owner or upon closure of the
airport for a period of more than three years.
SECTION 1054. ORS 836.616 is amended to read:
836.616. (1) Following consultation with the Oregon Department
of Aviation, the { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + }
shall adopt rules for uses and activities allowed within the
boundaries of airports identified in ORS 836.610 (1) and airports
described in ORS 836.608 (2).
(2) Within airport boundaries established pursuant to
commission rules, local government land use regulations shall
authorize the following uses and activities:
(a) Customary and usual aviation-related activities including
but not limited to takeoffs, landings, aircraft hangars,
tie-downs, construction and maintenance of airport facilities,
fixed-base operator facilities and other activities incidental to
the normal operation of an airport;
(b) Emergency medical flight services;
(c) Law enforcement and firefighting activities;
(d) Flight instruction;
(e) Aircraft service, maintenance and training;
(f) Crop dusting and other agricultural activities;
(g) Air passenger and air freight services at levels consistent
with the classification and needs identified in the State
Aviation System Plan;
(h) Aircraft rental;
(i) Aircraft sales and sale of aviation equipment and supplies;
and
(j) Aviation recreational and sporting activities.
(3) All land uses and activities permitted within airport
boundaries, other than the uses and activities established under
subsection (2) of this section, shall comply with applicable land
use laws and regulations. A local government may authorize
commercial, industrial and other uses in addition to those listed
in subsection (2) of this section within an airport boundary
where such uses are consistent with applicable provisions of the
acknowledged comprehensive plan, statewide land use planning
goals and commission rules and where the uses do not create a
safety hazard or limit approved airport uses.
(4) The provisions of this section do not apply to airports
with an existing or approved control tower on June 5, 1995.
SECTION 1055. ORS 836.619 is amended to read:
836.619. Following consultation with the Oregon Department of
Aviation, the { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + }
shall adopt rules establishing compatibility and safety standards
for uses of land near airports identified in ORS 836.610 (1).
SECTION 1056. ORS 836.623 is amended to read:
836.623. (1) A local government may adopt land use
compatibility and safety requirements that are more stringent
than the minimum required by { - Land Conservation and
Development Commission - } { + Oregon Natural Resources
Commission + } rules for issues other than water impoundments
where such regulations are within its authority. Local government
action regarding new water impoundments shall comply with
subsection (2) of this section. If a local government receives
information in a hearing on a land use application alleging that
public safety requires a higher level of protection than the
minimum established in commission rules and if the information is
supported by evidence, the governing body shall consider the
information and adopt findings explaining the bases for any
decision regarding the need for more stringent requirements. Land
use requirements regarding safety and compatibility shall
consider the effects of mitigation measures or conditions that
could reduce safety risks and incompatibility.
(2) The following requirements and conditions shall apply to
safety risks associated with potential bird strike hazards
resulting from new water impoundments proposed in close proximity
to an airport identified under ORS 836.610 (1):
(a) No new water impoundments of one-quarter acre or larger
shall be allowed:
(A) Within an approach corridor and within 5,000 feet from the
end of a runway; or
(B) On land owned by the airport or airport sponsor where the
land is necessary for airport operations;
(b) A local government may adopt regulations that limit the
establishment of new water impoundments of one-quarter acre or
larger for areas outside an approach corridor and within 5,000
feet of a runway only where the local government adopts findings
of fact, supported by substantial evidence in the whole record,
that the impoundments are likely to result in a significant
increase in hazardous movements of birds feeding, watering or
roosting in areas across the runways or approach corridors. The
local government shall consider the effects of mitigation
measures or conditions that could reduce safety risks and
incompatibility;
(c) A local government may adopt regulations that limit the
establishment of new water impoundments of one-quarter acre or
larger between 5,000 feet and 10,000 feet of a runway outside an
approach corridor and between 5,000 feet and 40,000 feet within
an approach corridor for an airport with an instrument approach
only where the local government adopts findings of fact,
supported by substantial evidence in the whole record, that the
impoundments are likely to result in a significant increase in
hazardous movements of birds feeding, watering or roosting in
areas across the runways or approach corridors. The local
government shall consider the effects of mitigation measures or
conditions that could reduce safety risks and incompatibility;
(d) If a local government receives information and supporting
evidence in the hearing process that alleges a significant
increase in hazardous movements of birds feeding, watering or
roosting in areas across the runways or approach corridors, the
local government shall consider the information and evidence and
adopt findings as required by paragraphs (b) and (c) of this
subsection explaining the bases for any decision regarding the
need to limit the establishment of new water impoundments of
one-quarter acre or larger; and
(e) Notwithstanding the requirements of paragraphs (a) to (c)
of this subsection, wetlands mitigation required for projects
located within the areas identified in paragraphs (a) to (c) of
this subsection shall be authorized where it is not practicable
to provide off-site mitigation.
(3) A local government that receives information under
subsection (2)(d) of this section shall forward the information
to the Federal Aviation Administration for review and comment
prior to any final action by the local government to impose a
compatibility or safety standard more stringent than required by
rule of the { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + }.
(4) Subsection (2) of this section does not apply to a storm
water management basin established by an airport identified under
ORS 836.610 (1) or agricultural water impoundments in which the
water is used directly for growing crops such as cranberries or
rice.
(5) Subsection (2)(a) to (c) of this section does not apply to
seaplane landing areas.
(6) As used in this section, 'significant' means a level of
increased flight activity by birds across approach corridors and
runways that is more than incidental or occasional, considering
the existing ambient levels of flight activity by birds in the
vicinity.
SECTION 1057. ORS 836.630 is amended to read:
836.630. (1) Nothing in ORS 836.600 to 836.625 shall be
interpreted to allow the siting of a new airport except as
provided in ORS chapters 197 and 215 and in conformance with all
applicable land use regulations and ordinances.
(2) The Oregon Department of Aviation shall propose and the
{ - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + } shall adopt rules
under ORS 836.616 and 836.619 that are no more restrictive than
the commission determines necessary to effect the policy
established in ORS 836.600.
(3) The provisions of ORS 836.600 to 836.630 and any rules
established hereunder shall be liberally construed to further the
policy established in ORS 836.600.
SECTION 1058. ORS 836.642 is amended to read:
836.642. (1) The Oregon Department of Aviation shall establish
a pilot program at up to six rural airports to encourage
development of through the fence operations designed to promote
economic development by creating family wage jobs, by increasing
local tax bases and by increasing financial support for rural
airports. To the extent practicable, the airport sponsor of a
pilot site shall use public-private partnerships that
incorporate:
(a) Innovative and creative technologies for increasing airport
usability and safety;
(b) Innovative and creative performance of aviation services to
make the services more competitive and useful for the public;
(c) Development of the pilot site as a setting for customary
and usual aviation-related activities to develop and thrive, in
concert with the goals of the Oregon Business Development
Department; and
(d) Shared responsibility for:
(A) Establishing and meeting the fiscal needs of the pilot
site;
(B) Maintaining safety of operations; and
(C) Maintaining positive community relations and compatibility
with existing uses.
(2) The pilot program shall operate at:
(a) The Aurora State Airport; and
(b) Not more than five additional rural airports that volunteer
to participate and are selected by the Oregon Department of
Aviation with the concurrence of the county in which each rural
airport is located.
(3) The Oregon Department of Aviation, by rule, shall provide
standards and guidelines for through the fence operations that:
(a) Ensure that the operations provide financial support to the
pilot sites in compliance with Federal Aviation Administration
regulations;
(b) Require submission, review, approval and, as appropriate,
revision of a facility site plan for each through the fence
operation so that the real property covered by the site plan can
be incorporated into the airport boundary and coordinated with
the other aspects of the airport master plan;
(c) Ensure that the operations are conducted according to a
written contract between the commercial or industrial user of
property within the airport boundary and the airport sponsor;
(d) Ensure that pilot sites continue to operate in a safe
manner and to fulfill their roles in Oregon's emergency response
system;
(e) Preserve investments in pilot sites and the level of
service provided by pilot sites;
(f) Facilitate orderly management of pilot sites;
(g) Provide equitable and uniform treatment of airport tenants
and users at pilot sites;
(h) Advance economic development through qualified customary
and usual aviation-related activities within the airport
boundaries of pilot sites;
(i) Encourage well-ordered economic development within the
airport boundaries of the pilot sites;
(j) Facilitate and foster good relations with the communities
surrounding the pilot sites;
(k) Enable conformity with approved airport master plans;
(L) Make pilot sites available for public use on reasonable
terms; and
(m) Assist pilot sites in developing financial self-sufficiency
through the use of innovative funding and economic development
programs.
(4) The { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + },
the county and a city, if any, within whose jurisdiction a pilot
site is located shall coordinate with the Oregon Department of
Aviation to ensure that the applicable comprehensive plans and
land use regulations, including airport zoning classifications
pursuant to ORS 836.600 to 836.630, facilitate through the fence
operations and support the development or expansion of the pilot
site consistent with applicable statewide land use planning
requirements.
(5) The Oregon Business Development Department shall assist the
pilot sites to:
(a) Identify, qualify for and apply for funding from
appropriate grant and loan programs; and
(b) Develop innovative short-term and long-term funding
opportunities.
(6) To the extent practicable, the airport sponsors shall
utilize innovative airport infrastructure and operations funding
to support the pilot sites including, but not limited to:
(a) Airport districts as provided in ORS chapter 838;
(b) Economic development programs administered by the Oregon
Business Development Department;
(c) Tax increment financing to provide funding for
airport-related infrastructure;
(d) United States Department of Agriculture Rural Development
grants or low-interest loans; and
(e) Programs, including funding for short line railroads under
ORS 367.067, designed to facilitate development of intermodal
transportation projects.
SECTION 1059. { + + } Section 6, chapter 424, Oregon Laws
2007, as amended by section 11, chapter 855, Oregon Laws 2009, is
amended to read:
{ + Sec. 6. + } (1)(a) A claimant that filed a claim under
ORS 195.305 on or before June 28, 2007, is eligible for three
home site approvals on the property if the requirements of this
section and:
(A) Sections 8 and 11, chapter 424, Oregon Laws 2007, are met;
(B) Section 2 { + , chapter 855, Oregon Laws 2009, + } { - of
this 2009 Act - } and section 11, chapter 424, Oregon Laws 2007,
are met;
(C) Section 3 { + , chapter 855, Oregon Laws 2009, + } { - of
this 2009 Act - } and section 11, chapter 424, Oregon Laws 2007,
are met;
(D) Section 4 { + , chapter 855, Oregon Laws 2009, + } { - of
this 2009 Act - } and section 11, chapter 424, Oregon Laws 2007,
are met;
(E) Section 5 { + , chapter 855, Oregon Laws 2009, + } { - of
this 2009 Act - } and section 11, chapter 424, Oregon Laws 2007,
are met; or
(F) Section 5a { + , chapter 855, Oregon Laws 2009, + }
{ - of this 2009 Act - } and section 11, chapter 424, Oregon
Laws 2007, are met.
(b) The procedure for obtaining home site approvals under this
section is set forth in section 8, chapter 424, Oregon Laws 2007,
or, for sections 2 to 5a { + , chapter 855, Oregon Laws 2009 + }
{ - of this 2009 Act - } , is established pursuant to section
6 { + , chapter 855, Oregon Laws 2009 + } { - of this 2009
Act - } .
(2) The number of lots, parcels or dwellings that may be
approved for property under this section may not exceed the
lesser of:
(a) The number of lots, parcels or dwellings described in a
waiver issued by the state before December 6, 2007, or, if a
waiver was not issued, the number of lots, parcels or dwellings
described in the claim filed with the state; or
(b) Three, except that if there are existing dwellings on the
property or the property contains more than one lot or parcel,
the number of lots, parcels or dwellings that may be established
is reduced so that the combined number of lots, parcels or
dwellings, including existing lots, parcels or dwellings located
on or contained within the property, does not exceed three.
(3) Notwithstanding subsection (2) of this section, a claimant
that otherwise qualifies for relief under this section may
establish at least one additional lot, parcel or dwelling on the
property. In addition, if the number of lots, parcels or
dwellings described in a waiver issued by the state before
December 6, 2007, or, if a waiver was not issued, the number of
lots, parcels or dwellings described in the claim filed with the
state is more than three, the claimant may amend the claim to
reduce the number to no more than three by filing notice of the
amendment with the form required by section 8, chapter 424,
Oregon Laws 2007, or, for sections 2 to 5a { + , chapter 855,
Oregon Laws 2009 + }
{ - of this 2009 Act - } , in the manner established pursuant
to section 6 { + , chapter 855, Oregon Laws 2009 + } { - of
this 2009 Act - } .
(4) If a claim was for a use other than a subdivision or
partition of property, or other than approval for establishing a
dwelling on the property, the claimant may amend the claim to
seek one or more home site approvals under this section. A person
amending a claim under this subsection may not make a claim under
section 7, chapter 424, Oregon Laws 2007.
(5) If multiple claims were filed for the same property, the
number of lots, parcels or dwellings that may be established for
purposes of subsection (2)(a) of this section is the number of
lots, parcels or dwellings in the most recent waiver issued by
the state before December 6, 2007, or, if a waiver was not
issued, the most recent claim filed with the state, but not more
than three in any case.
(6) To qualify for a home site approval under this section, the
claimant must have filed a claim for the property with both the
state and the county in which the property is located. In
addition, regardless of whether a waiver was issued by the state
or the county before December 6, 2007, to qualify for a home site
approval under this section the claimant must establish that:
(a) The claimant is an owner of the property;
(b) All owners of the property have consented in writing to the
claim;
(c) The property is located entirely outside any urban growth
boundary and entirely outside the boundaries of any city;
(d) One or more land use regulations prohibit establishing the
lot, parcel or dwelling;
(e) The establishment of the lot, parcel or dwelling is not
prohibited by a land use regulation described in ORS 195.305 (3);
and
(f) On the claimant's acquisition date, the claimant lawfully
was permitted to establish at least the number of lots, parcels
or dwellings on the property that are authorized under this
section.
(7) If the claim was filed after December 4, 2006, to issue a
home site approval under this section, the { - Department of
Land Conservation and Development - } { + Oregon Department of
Natural Resources + } must verify that the claim was filed in
compliance with the applicable rules of the { - Land
Conservation and Development Commission - } { + Oregon Natural
Resources Commission + } and the Oregon Department of
Administrative Services.
(8) Except as provided in section 11, chapter 424, Oregon Laws
2007, if the { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + }
has issued a final order with a specific number of home site
approvals for a property under this section, the claimant may
seek other governmental authorizations required by law for the
partition or subdivision of the property or for the development
of any dwelling authorized, and a land use regulation enacted by
the state or county that has the effect of prohibiting the
partition or subdivision, or the dwelling, does not apply to the
review of those authorizations.
SECTION 1060. { + + } Section 7, chapter 424, Oregon Laws
2007, as amended by section 12, chapter 855, Oregon Laws 2009, is
amended to read:
{ + Sec. 7. + } (1) A claimant that filed a claim under ORS
195.305 on or before June 28, 2007, for property that is not
high-value farmland or high-value forestland and that is not in a
ground water restricted area is eligible for four to 10 home site
approvals for the property if the requirements of this section
and sections 8 and 11, chapter 424, Oregon Laws 2007, are met.
The procedure for obtaining home site approvals under this
section is set forth in section 8, chapter 424, Oregon Laws 2007.
(2) The number of lots, parcels or dwellings that may be
established on the property under this section may not exceed the
lesser of:
(a) The number of lots, parcels or dwellings described in a
waiver issued by the state before December 6, 2007, or, if a
waiver was not issued, the number of lots, parcels or dwellings
described in the claim filed with the state;
(b) Ten, except that if there are existing dwellings on the
property or the property contains more than one lot or parcel,
the number of lots, parcels or dwellings that may be established
is reduced, so that the combined number of lots, parcels or
dwellings, including existing lots, parcels or dwellings located
on or contained within the property, does not exceed 10; or
(c) The number of home site approvals with a total value that
represents just compensation for the reduction in fair market
value caused by the enactment of one or more land use regulations
that were the basis for the claim, as set forth in subsection (6)
of this section.
(3) If the number of lots, parcels or dwellings described in a
waiver issued by the state before December 6, 2007, or, if a
waiver was not issued, the number of lots, parcels or dwellings
described in the claim filed with the state is more than 10, the
claimant may amend the claim to reduce the number to no more than
10 by filing notice of the amendment with the form required by
section 8, chapter 424, Oregon Laws 2007.
(4) If multiple claims were filed for the same property, the
number of lots, parcels or dwellings that may be established for
purposes of subsection (2)(a) of this section is the number of
lots, parcels or dwellings in the most recent waiver issued by
the state before December 6, 2007, or, if a waiver was not
issued, the most recent claim filed with the state, but not more
than 10 in any case.
(5) To qualify for a home site approval under this section, the
claimant must have filed a claim for the property with both the
state and the county in which the property is located. In
addition, regardless of whether a waiver was issued by the state
or the county before December 6, 2007, to qualify for a home site
approval under this section, the claimant must establish that:
(a) The claimant is an owner of the property;
(b) All owners of the property have consented in writing to the
claim;
(c) The property is located entirely outside any urban growth
boundary and entirely outside the boundaries of any city;
(d) One or more land use regulations prohibit establishing the
lot, parcel or dwelling;
(e) The establishment of the lot, parcel or dwelling is not
prohibited by a land use regulation described in ORS 195.305 (3);
(f) On the claimant's acquisition date, the claimant lawfully
was permitted to establish at least the number of lots, parcels
and dwellings on the property that are authorized under this
section; and
(g) The enactment of one or more land use regulations, other
than land use regulations described in ORS 195.305 (3), that are
the basis for the claim caused a reduction in the fair market
value of the property that is equal to or greater than the fair
market value of the home site approvals that may be established
on the property under subsection (2) of this section, with the
reduction in fair market value measured as set forth in
subsection (6) of this section.
(6) The reduction in the fair market value of the property
caused by the enactment of one or more land use regulations that
were the basis for the claim is equal to the decrease, if any, in
the fair market value of the property from the date that is one
year before the enactment of the land use regulation to the date
that is one year after the enactment, plus interest. If the claim
is based on the enactment of more than one land use regulation
enacted on different dates, the reduction in the fair market
value of the property caused by each regulation shall be
determined separately and the values added together to calculate
the total reduction in fair market value. The reduction in fair
market value shall be adjusted by any ad valorem property taxes
not paid as a result of any special assessment of the property
under ORS 308A.050 to 308A.128, 321.257 to 321.390, 321.700 to
321.754 or 321.805 to 321.855, plus interest, offset by any
severance taxes paid by the claimant and by any recapture of
potential additional tax liability that the claimant has paid or
will pay for the property if the property is disqualified from
special assessment under ORS 308A.703. Interest shall be computed
under this subsection using the average interest rate for a
one-year United States Government Treasury Bill on December 31 of
each year of the period between the date the land use regulation
was enacted and the date the claim was filed, compounded annually
on January 1 of each year of the period.
(7) For the purposes of subsection (6) of this section, a
claimant must provide an appraisal showing the fair market value
of the property one year before the enactment of the land use
regulation that was the basis for the claim and the fair market
value of the property one year after the enactment. The appraisal
also must show the fair market value of each home site approval
to which the claimant is entitled under subsection (2) of this
section, along with evidence of any ad valorem property taxes not
paid, any severance taxes paid and any recapture of additional
tax liability that the claimant has paid or will pay for the
property if the property is disqualified from special assessment
under ORS 308A.703. The actual and reasonable cost of preparing
the claim, including the cost of the appraisal, not to exceed
$5,000, may be added to the calculation of the reduction in fair
market value under subsection (6) of this section. The appraisal
must:
(a) Be prepared by a person certified under ORS chapter 674 or
a person registered under ORS chapter 308;
(b) Comply with the Uniform Standards of Professional Appraisal
Practice, as authorized by the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989; and
(c) Expressly determine the highest and best use of the
property at the time the land use regulation was enacted.
(8) Relief may not be granted under this section if the highest
and best use of the property was not residential use at the time
the land use regulation was enacted.
(9) If the claim was filed after December 4, 2006, to issue a
home site approval under this section, the { - Department of
Land Conservation and Development - } { + Oregon Department of
Natural Resources + } must verify that the claim was filed in
compliance with the applicable rules of the { - Land
Conservation and Development Commission - } { + Oregon Natural
Resources Commission + } and the Oregon Department of
Administrative Services.
(10) Except as provided in section 11, chapter 424, Oregon Laws
2007, if the { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + }
has issued a final order with a specific number of home site
approvals for the property under this section, the claimant may
seek other governmental authorizations required by law for the
subdivision or partition of the property or for the development
of any dwelling authorized, and a land use regulation enacted by
the state or county that has the effect of prohibiting the
subdivision or partition, or the dwelling, does not apply to the
review of those authorizations.
SECTION 1061. { + + } Section 8, chapter 424, Oregon Laws
2007, as amended by section 13, chapter 855, Oregon Laws 2009, is
amended to read:
{ + Sec. 8. + } (1) No later than 120 days after December 6,
2007, the { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + }
shall send notice to all the following claimants that filed a
claim for property outside an urban growth boundary:
(a) A claimant whose claim was denied by the state before
December 6, 2007, but who may become eligible for just
compensation because of ORS 195.328 (2) or any other provision of
ORS 195.305 to 195.336 and sections 5 to 11, chapter 424, Oregon
Laws 2007 { + , and sections 2 to 9 and 17, chapter 855, Oregon
Laws 2009 + };
(b) A claimant whose claim was approved by the state before
December 6, 2007; and
(c) A claimant whose claim has not been approved or denied by
the state before December 6, 2007.
(2) The notice required by subsection (1) of this section must:
(a) Explain the claimant's options if the claimant wishes to
subdivide, partition or establish a dwelling on the property
under ORS 195.305 to 195.336 and sections 5 to 11, chapter 424,
Oregon Laws 2007 { + , and sections 2 to 9 and 17, chapter 855,
Oregon Laws 2009 + };
(b) Identify any information that the claimant must file; and
(c) Provide a form for the claimant's use.
(3) A claimant must choose whether to proceed under section 6
or 7, chapter 424, Oregon Laws 2007, by filing the form provided
by the department within 120 days after the date the department
mails the notice and form required under subsection (1) of this
section. In addition, the claimant must file any information
required in the notice. If the claimant fails to file the form
within 120 days after the date the department mails the notice,
the claimant is not entitled to relief under section 6 or 7,
chapter 424, Oregon Laws 2007.
(4) The department shall review the claims in the order in
which the department receives the forms required under subsection
(3) of this section. In addition to reviewing the claim, the
department shall review the department's record on the claim, the
form required under subsection (3) of this section, any new
material from the claimant and any other information required by
ORS 195.305 to 195.336 and sections 5 to 11, chapter 424, Oregon
Laws 2007 { + , and sections 2 to 9 and 17, chapter 855, Oregon
Laws 2009 + }, to ensure that the requirements of this section
and section 6 or 7, chapter 424, Oregon Laws 2007, are met. The
department shall provide a copy of the material submitted by the
claimant to the county where the property is located and consider
written comments from the county that are timely filed with the
department. If the department determines that the only land use
regulations that restrict the claimant's use of the property are
regulations that were enacted by the county, the department shall
transfer the claim to the county where the property is located
and the claim shall be processed by the county in the same manner
as prescribed by this section for the processing of claims by the
department. The county must consider any written comments from
the department that are timely filed with the county.
(5) If the claimant elects to obtain relief under section 7,
chapter 424, Oregon Laws 2007, the claimant must file an
appraisal that establishes the reduction in the fair market value
of the property as required by section 7 (6), chapter 424, Oregon
Laws 2007. The actual and reasonable cost of preparing the claim,
including the cost of the appraisal, not to exceed $5,000, may be
added to the calculation of the reduction in fair market value
under section 7 (6), chapter 424, Oregon Laws 2007. The appraisal
must be filed with the department or, if the claim is being
processed by the county, with the county within 180 days after
the date the claimant files the election to obtain relief under
section 7, chapter 424, Oregon Laws 2007. A claimant that elects
to obtain relief under section 7, chapter 424, Oregon Laws 2007,
may change that election to obtain relief under section 6,
chapter 424, Oregon Laws 2007, but only if the claimant provides
written notice of the change on or before the date the appraisal
is filed. If a county is processing the claim, the county may
impose a fee for the review of a claim under section 7, chapter
424, Oregon Laws 2007, in an amount that does not exceed the
actual and reasonable cost of the review.
(6) The department or the county shall review claims as quickly
as possible, consistent with careful review of the claim. The
department shall report to the Joint Legislative Audit Committee
on or before March 31, 2008, concerning the department's progress
and the counties' progress in completing review of claims under
sections 6 and 7, chapter 424, Oregon Laws 2007.
(7) The department's final order and a county's final decision
on a claim under section 6 or 7, chapter 424, Oregon Laws 2007,
must either deny the claim or approve the claim. If the order or
decision approves the claim, the order or decision must state the
number of home site approvals issued for the property and may
contain other terms that are necessary to ensure that the use of
the property is lawful.
SECTION 1062. { + + } Section 10, chapter 424, Oregon Laws
2007, is amended to read:
{ + Sec. 10. + } (1) If Metro, a city or a county issued a
waiver before { - the effective date of this 2007 Act - }
{ + December 6, 2007, + } for property located, in whole or in
part, within an urban growth boundary, the public entity that
issued the waiver must review the claim, the record on the claim
and the waiver to determine whether the claimant is entitled to
relief under section 9 { + , chapter 424, Oregon Laws 2007 + }
{ - of this 2007 Act - } . If the public entity that issued the
waiver lacks information needed to determine whether the claimant
is entitled to relief, the public entity shall issue a written
request to the claimant for the required information. The
claimant must file the required information within 90 days after
receiving the request. If the claimant does not file the
information, the public entity shall review the claim based on
the information that is available. The public entity shall
complete a tentative review no later than 240 days after
{ - the effective date of this 2007 Act - } { + December 6,
2007 + }. The public entity shall provide written notice to the
claimant, the { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + }
and any other person entitled to notice of the tentative
determination as to whether the claimant qualifies for relief
under section 9 { + , chapter 424, Oregon Laws 2007, + } { - of
this 2007 Act - } and, if so, the specific number of
single-family dwellings that the public entity proposes to
authorize. The notice must state that the recipient has 15 days
to submit evidence or arguments in response to the tentative
determination, after which the public entity shall make a final
determination. A public entity shall make the final determination
under this subsection within 300 days after { - the effective
date of this 2007 Act - } { + December 6, 2007 + }.
(2) If Metro, a city or a county has not made a final decision
before { - the effective date of this 2007 Act - } { +
December 6, 2007, + } on a claim filed for property located, in
whole or in part, within an urban growth boundary, the public
entity with which the claim was filed shall send notice to the
claimant within 90 days after { - the effective date of this
2007 Act - } { + December 6, 2007 + }. The notice must:
(a) Explain that the claimant is entitled to seek relief under
section 9 { + , chapter 424, Oregon Laws 2007 + } { - of this
2007 Act - } ;
(b) Identify the information that the claimant must file; and
(c) Provide a form for the claimant's use.
(3) Within 120 days after the date the public entity mails
notice under subsection (2) of this section, a claimant must
notify the public entity if the claimant intends to continue the
claim and must file the information required in the notice. If
the claimant fails to file the notice and required information
with the public entity within 120 days after the date the public
entity mails the notice, the claimant is not entitled to relief
under section 9 { + , chapter 424, Oregon Laws 2007 + } { - of
this 2007 Act - } .
(4) A public entity that receives a notice from a claimant
under subsection (3) of this section shall review the claim, the
record on the claim, the notice received from the claimant and
the information required under subsection (3) of this section to
determine whether the claim demonstrates that the requirements of
section 9 { + , chapter 424, Oregon Laws 2007, + } { - of this
2007 Act - } are satisfied. The public entity shall complete a
tentative review no later than 120 days after receipt of the
notice from the claimant and shall provide written notice to the
claimant, the department and any other person entitled to notice
of the tentative determination as to whether the claimant
qualifies for relief under section 9 { + , chapter 424, Oregon
Laws 2007, + } { - of this 2007 Act - } and, if so, the
specific number of single-family dwellings that the public entity
proposes to authorize. The notice must state that the recipient
has 15 days to submit evidence or arguments in response to the
tentative determination, after which the public entity shall make
a final determination. A public entity shall make the final
determination under this subsection within 180 days after receipt
of the notice from the claimant.
(5) If a claimant filed a claim that is subject to this section
after December 4, 2006, the claim must have included a copy of a
final land use decision by the city or county with land use
jurisdiction over the property that denied an application by the
claimant for the residential use described in the claim. If the
claim was filed after December 4, 2006, and did not include a
final land use decision denying the residential use described in
the claim, the claimant is not entitled to relief under section
9 { + , chapter 424, Oregon Laws 2007 + } { - of this 2007
Act - } .
SECTION 1063. { + + } Section 2, chapter 855, Oregon Laws
2009, is amended to read:
{ + Sec. 2. + } (1) Subject to section 7 { + , chapter 855,
Oregon Laws 2009, + } { - of this 2009 Act - } and subsections
(2) and (3) of this section, a claimant that filed a timely
election under section 8, chapter 424, Oregon Laws 2007, to
pursue compensation as described in section 5 (3), chapter 424,
Oregon Laws 2007, is eligible to pursue relief under this section
and section 6, chapter 424, Oregon Laws 2007.
(2) A claimant is not eligible to pursue relief under this
section if the claimant has been determined to have a common law
vested right as described in section 5 (3), chapter 424, Oregon
Laws 2007, in a final judgment, or final order, that is not
subject to further appeal.
(3) A claimant must elect to pursue relief under this section
on or before December 31, 2009, in the manner prescribed pursuant
to section 6 { + , chapter 855, Oregon Laws 2009 + } { - of
this 2009 Act - } .
(4) The { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + }
shall review claims under this section using the procedures
established pursuant to section 6 { + , chapter 855, Oregon Laws
2009 + } { - of this 2009 Act - } .
SECTION 1064. { + + } Section 3, chapter 855, Oregon Laws
2009, is amended to read:
{ + Sec. 3. + } (1) Notwithstanding the requirement in
section 5, chapter 424, Oregon Laws 2007, that a claim under ORS
195.305 be filed before June 28, 2007, and notwithstanding the
requirement in sections 6 (7) and 7 (9), chapter 424, Oregon Laws
2007, that a claim comply with applicable rules of the { - Land
Conservation and Development Commission - } { + Oregon Natural
Resources Commission + }, a claimant is eligible to pursue relief
under this section and section 6, chapter 424, Oregon Laws 2007,
if the claimant satisfies the requirements of subsection (2) of
this section and either:
(a) Filed a valid claim for just compensation under ORS 195.305
with the appropriate county on or before December 4, 2006, and
with the state on or after December 4, 2006, and before December
6, 2007; or
(b) Submitted a land use application before June 28, 2007, that
was a prerequisite to filing a valid claim for just compensation
on or after December 4, 2006, and filed the claim with the state
before December 6, 2007.
(2) A claimant described in subsection (1) of this section is
eligible to pursue relief under this section and section 6,
chapter 424, Oregon Laws 2007, if the claimant:
(a) Did not receive notice and an opportunity to file an
election under section 8 (3), chapter 424, Oregon Laws 2007, and
the claimant makes an election to pursue relief under this
section on or before December 31, 2009, in the manner prescribed
pursuant to section 6 { + , chapter 855, Oregon Laws 2009 + }
{ - of this 2009 Act - } ;
(b) Received notice and made a timely election under section 8
(3), chapter 424, Oregon Laws 2007, to pursue relief under
section 7, chapter 424, Oregon Laws 2007, but received a
preliminary decision of denial from the { - Department of Land
Conservation and Development - } { + Oregon Department of
Natural Resources + } before the claimant could submit an
appraisal; or
(c) Received notice and made a timely election under section 8
(3), chapter 424, Oregon Laws 2007, to pursue relief under
section 6, chapter 424, Oregon Laws, 2007.
(3) The department { - of Land Conservation and
Development - } shall review claims under this section using the
procedures established pursuant to section 6 { + , chapter 855,
Oregon Laws 2009 + }
{ - of this 2009 Act - } .
SECTION 1065. Section 4, chapter 855, Oregon Laws 2009, is
amended to read:
{ + Sec. 4. + } (1) Notwithstanding the requirement in
sections 5 (1) and 6 (6), chapter 424, Oregon Laws 2007, that the
property be located entirely outside any urban growth boundary
and entirely outside the boundaries of any city, a claimant is
eligible to pursue relief under this section if:
(a) A majority, but not all, of the property described in the
claim is outside an urban growth boundary; and
(b) The claimant filed a valid claim with the state for just
compensation under ORS 195.305.
(2) A claimant described in subsection (1) of this section is
eligible to pursue relief under this section and section 6,
chapter 424, Oregon Laws 2007.
(3) The { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + }
shall review claims under this section using the procedures
established pursuant to section 6 { + , chapter 855, Oregon Laws
2009 + } { - of this 2009 Act - } .
SECTION 1066. { + + } Section 5, chapter 855, Oregon Laws
2009, is amended to read:
{ + Sec. 5. + } (1) Notwithstanding the requirement in
section 6 (6), chapter 424, Oregon Laws 2007, that the claimant
must have filed a claim for the property with the state and with
the county in which the property is located, a claimant is
eligible to pursue relief under this section if the claimant
filed a claim only with the state and the claimant made a timely
election under section 8 (3), chapter 424, Oregon Laws 2007, to
pursue relief under sections 5 to 11, chapter 424, Oregon Laws
2007 { + , and sections 2 to 9 and 17, chapter 855, Oregon Laws
2009 + }.
(2) A claimant described in subsection (1) of this section is
eligible to pursue relief under this section and section 6,
chapter 424, Oregon Laws 2007.
(3) The { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + }
shall review claims under this section using the procedures
established pursuant to section 6 { + , chapter 855, Oregon Laws
2009 + } { - of this 2009 Act - } .
SECTION 1067. Section 6, chapter 855, Oregon Laws 2009, is
amended to read:
{ + Sec. 6. + } (1) The { - Land Conservation and
Development Commission - } { + Oregon Natural Resources
Commission + } shall adopt rules establishing the procedures for
processing eligible claims under sections 2 to 5a { + , chapter
855, Oregon Laws 2009 + } { - of this 2009 Act - } .
(2) The { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + }
shall issue a final order on or before December 31, 2010, for
claims reviewed under sections 2 to 5a { + , chapter 855, Oregon
Laws 2009 + } { - of this 2009 Act - } .
SECTION 1068. { + + } Section 8, chapter 855, Oregon Laws
2009, is amended to read:
{ + Sec. 8. + } The { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + }
shall issue a final order on or before June 30, 2010, for claims
reviewed under section 6 or 7, chapter 424, Oregon Laws 2007, as
those sections were in effect on January 1, 2009.
SECTION 1069. { + + } Section 9, chapter 855, Oregon Laws
2009, is amended to read:
{ + Sec. 9. + } Notwithstanding the requirement of section 8
(4), chapter 424, Oregon Laws 2007, that the { - Department of
Land Conservation and Development - } { + Oregon Department of
Natural Resources + } review claims in the order received, upon a
recommendation of the Compensation and Conservation Ombudsman
appointed under ORS 195.320 that a hardship exists, made in the
discretion of the ombudsman, the Director of the { - Department
of Land Conservation and Development - } { + Oregon Department
of Natural Resources + } may, in the discretion of the director,
advance up to 100 claims for priority processing in cases of
demonstrated hardship.
SECTION 1070. { + + } Section 17, chapter 855, Oregon Laws
2009, is amended to read:
{ + Sec. 17. + } (1) The { - Department of Land
Conservation and Development - } { + Oregon Department of
Natural Resources + } shall investigate:
(a) The number of claimants that filed claims only with a
county under ORS 195.305, as in effect immediately before
December 6, 2007; and
(b) Why the claimants described in paragraph (a) of this
subsection filed claims only with the county.
(2) If requested to do so by the department, a county shall
provide the department with a list of the claims described in
subsection (1) of this section and copies of the claims.
(3) The department shall investigate:
(a) The number of claims that were filed under section 7,
chapter 424, Oregon Laws 2007, in which the claimant failed to
file an appraisal or to make an election to seek relief under
section 6, chapter 424, Oregon Laws 2007; and
(b) Why the claimants described in paragraph (a) of this
subsection failed to file an appraisal or to make an election to
seek relief under section 6, chapter 424, Oregon Laws 2007.
(4) The department shall report its findings to an appropriate
interim committee of the Legislative Assembly on or before
December 31, 2009.
SECTION 1071. { + + } Section 18, chapter 855, Oregon Laws
2009, is amended to read:
{ + Sec. 18. + } (1) The { - Department of Land
Conservation and Development - } { + Oregon Department of
Natural Resources + } shall charge a fee of $175 for each claim
that:
(a) Becomes eligible for relief under sections 2 to 5a { + ,
chapter 855, Oregon Laws 2009, + } { - of this 2009 Act - } or
section 8, chapter 424, Oregon Laws 2007; and
(b) The department processes.
(2) Moneys collected from fees charged under subsection (1) of
this section shall be deposited in the Compensation and
Conservation Fund.
(3) If a claimant fails to pay the fee charged under subsection
(1) of this section, the department may withhold issuance of a
final order approving relief that would otherwise be due the
claimant.
(4) If the department fails to issue a final order on a claim
by the date specified in section 6 { + , chapter 855, Oregon Laws
2009 + }
{ - of this 2009 Act - } , the department shall refund the fee
paid under subsection (1) of this section.
SECTION 1072. { + + } Section 20, chapter 855, Oregon Laws
2009, is amended to read:
{ + Sec. 20. + } (1) Notwithstanding the requirement of
section 8 (4), chapter 424, Oregon Laws 2007, that the
{ - Department of Land Conservation and Development - }
{ + Oregon Department of Natural Resources + } review claims in
the order received, upon a recommendation of the Compensation and
Conservation Ombudsman appointed under ORS 195.320 that a
hardship exists, made in the discretion of the ombudsman, the
Director of the { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + }
may, in the discretion of the director, advance up to 100 claims
for priority processing in cases of demonstrated hardship.
(2) For purposes of this section, demonstrated hardship
includes, but is not limited to:
(a) Threatened loss of ownership of the property;
(b) A contractual obligation to sell the property, entered into
before November 6, 2007;
(c) Prolonged illness or medical expenses that threaten the
financial status of the property owner;
(d) Threatened expiration of permits granted to carry out
development on the property; and
(e) A situation in which a claimant cannot continue to occupy
an existing dwelling on the property and wants to occupy a new
dwelling on the property.
SECTION 1073. Section 21, chapter 855, Oregon Laws 2009, is
amended to read:
{ + Sec. 21. + } (1) For claims under section 6 or 7, chapter
424, Oregon Laws 2007, the { - Department of Land Conservation
and Development - } { + Oregon Department of Natural
Resources + } shall confer with the county in which the claim was
filed and utilize the county's record on the claim.
(2) The department may rely on a decision by a county under
Ballot Measure 37 (2004), or on one or more prior land use
decisions by a county, in determining whether to authorize a land
division or dwelling under the standards of section 6 or 7,
chapter 424, Oregon Laws 2007.
SECTION 1073a. Section 4, chapter 504, Oregon Laws 2009, is
amended to read:
{ + Sec. 4. + } The { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + }
shall make a report, in the manner described in ORS 192.245, to
the Seventy-seventh Legislative Assembly:
(1) Evaluating the transferable development credit systems that
have been established under { - sections 2 and 3 of this 2009
Act - } { + ORS 94.536 and 94.538 + }; and
(2) Recommending whether the program should be continued,
modified, expanded or terminated.
SECTION 1074. Section 37, chapter 865, Oregon Laws 2009, is
amended to read:
{ + Sec. 37. + } (1) As used in this section:
(a) 'Comprehensive plan' has the meaning given that term in ORS
197.015.
(b) 'Land use regulation' has the meaning given that term in
ORS 197.015.
(c) 'Metropolitan service district' means a metropolitan
service district established under ORS chapter 268.
(2)(a) Except as provided in subsection (5) of this section, on
or before January 1, 2012, a metropolitan service district, in
accordance with rules adopted under subsection (6) of this
section, shall develop two or more alternative land use and
transportation scenarios that accommodate planned population and
employment growth while achieving a reduction in greenhouse gas
emissions from motor vehicles with a gross vehicle weight rating
of 10,000 pounds or less.
(b) A metropolitan service district, in accordance with rules
adopted under subsection (8) of this section, shall select, after
public review and comment on the scenarios and in consultation
with local governments within the jurisdiction of the
metropolitan service district, one scenario described in
paragraph (a) of this subsection as a part of its planning
responsibilities under ORS 268.390.
(3) Except as provided in subsection (5) of this section, a
local government within the jurisdiction of the metropolitan
service district shall amend its comprehensive plan and land use
regulations implementing the plan to be consistent with the
scenario adopted by a metropolitan service district in a manner
provided by rules adopted under subsection (8) of this section.
(4)(a) The Department of Transportation and the
{ - Department of Land Conservation and Development - }
{ + Oregon Department of Natural Resources + } shall provide
technical assistance and guidance for the land use and
transportation scenarios and local planning described in
subsections (2) and (3) of this section.
(b) The Department of Transportation and the { - Department
of Land Conservation and Development - } { + Oregon Department
of Natural Resources + } shall provide grant support to each
government entity required to carry out the provisions of
subsections (2) and (3) of this section in amounts sufficient to
fully reimburse the entities for any costs incurred in carrying
out the provisions of subsections (2) and (3) of this section.
(c) The Department of Transportation and the { - Department
of Land Conservation and Development - } { + Oregon Department
of Natural Resources + } shall provide funds for rulemaking,
technical assistance and grants under this section from available
funds.
(5) A metropolitan service district and local governments
within the jurisdiction of the district are not required to
comply with subsections (2) and (3) of this section unless the
district and local governments receive sufficient funds for
reimbursement of costs in carrying out the provisions of
subsections (2) and (3) of this section.
(6) On or before June 1, 2011, the { - Land Conservation and
Development Commission - } { + Oregon Natural Resources
Commission + }, in consultation with the Oregon Transportation
Commission, shall adopt rules for metropolitan service districts.
The rules must identify each district's needed reduction by 2035
in those greenhouse gas emissions caused by motor vehicles with a
gross vehicle weight rating of 10,000 pounds or less, based upon
the goals stated in ORS 468A.205 and taking into consideration
the reductions in vehicle emissions that are likely to result by
2035 from the use of improved vehicle technologies and fuels. On
or before March 1, 2011, the Department of Transportation, the
Department of Environmental Quality and the State Department of
Energy shall provide the { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + } with
the information or projections necessary to determine the
proposed greenhouse gas emissions reduction goals for 2035.
(7) In order to carry out the responsibilities described in
subsection (6) of this section:
(a) The Department of Transportation shall provide the
Department of Environmental Quality and the State Department of
Energy with an estimate of the vehicle miles traveled in the
metropolitan service district in 1990 by motor vehicles with a
gross vehicle weight rating of 10,000 pounds or less, based on
available records;
(b) The Department of Transportation shall provide the
Department of Environmental Quality and the State Department of
Energy with an estimate of the rate at which new vehicles will
replace existing vehicles among the vehicles described in
paragraph (a) of this subsection;
(c) The Department of Environmental Quality and the State
Department of Energy shall estimate the greenhouse gas emissions
for 1990 for each metropolitan service district resulting from
the travel by motor vehicles described in paragraph (a) of this
subsection, using available records of the average emissions per
mile emitted by motor vehicles in 1990 and the estimates provided
by the Department of Transportation under paragraph (a) of this
subsection;
(d) The Department of Environmental Quality and the State
Department of Energy shall estimate the predicted average
greenhouse gas emissions by motor vehicles described in paragraph
(a) of this subsection predicted to comprise the motor vehicles
on the highways in 2035 based on the predicted rate of
replacement of the vehicles as described in paragraph (b) of this
subsection and based on available reasonable estimates provided
by public or private entities of the improvements in vehicle
technologies that will be available for use by 2035;
(e) The Department of Environmental Quality and the State
Department of Energy shall recommend to the { - Land
Conservation and Development Commission - } { + Oregon Natural
Resources Commission + } a percentage by which the emissions from
motor vehicles described in paragraph (a) of this subsection
should be reduced below their estimated 1990 emission levels by
2035 in order to achieve a reduction in emissions from the
vehicles as part of the overall achievement of total carbon
reduction set for 2050 by ORS 468A.205 and shall explain their
reasons for any recommendations other than the midpoint between
the 2020 and the 2050 emission reduction targets established by
ORS 468A.205;
(f) The Department of Environmental Quality and the State
Department of Energy shall calculate the estimated miles of
travel by motor vehicles described by paragraph (a) of this
subsection predicted to be traveled and that may be accommodated
in 2035 in each metropolitan service district based on the
estimates performed under paragraphs (a) to (d) of this
subsection and the recommendation required by paragraph (e) of
this subsection;
(g) The Department of Transportation, the Department of
Environmental Quality and the State Department of Energy shall
recommend to the { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + }
modeling tools or other methods by which a metropolitan service
district may adjust the district's recommended target number of
miles of travel described in paragraph (f) of this subsection to
account for additional greenhouse gas emissions resulting from
increased traffic congestion or reductions in such emissions
resulting from measures that reduce traffic congestion; and
(h) On or before March 1, 2011, the Department of
Transportation, the Department of Environmental Quality and the
State Department of Energy shall submit the information required
by paragraphs (a) to (g) of this subsection to the { - Land
Conservation and Development Commission - } { + Oregon Natural
Resources Commission + }, including but not limited to citations
to sources relied on and calculations made.
(8) On or before January 1, 2013, the { - Land Conservation
and Development Commission - } { + Oregon Natural Resources
Commission + }, in consultation with the Oregon Transportation
Commission, shall adopt rules that establish a process for
cooperatively selecting a land use and transportation scenario
for each metropolitan service district to achieve the greenhouse
gas emissions reductions identified in the rules adopted pursuant
to subsection (6) of this section and a process for the adoption
of regional or local plans to implement the scenario. The rules
shall:
(a) Identify minimum planning standards for achieving
reductions in greenhouse gas emissions through comprehensive
plans and transportation system plans;
(b) Identify planning assumptions and approaches to meet
minimum planning standards identified in paragraph (a) of this
subsection that ensure the { - Department of Land Conservation
and Development - } { + Oregon Department of Natural
Resources + } can approve the changes to the regional framework
plan, comprehensive plans and land use regulations implementing
the comprehensive plans;
(c) Establish a cycle for initial adoption and updating of the
transportation and land use scenario required by this section,
including planning periods beyond 2035, relating the cycle to
periodic review under ORS 197.628 to 197.650 and to urban growth
boundary planning under ORS 197.296 or 197.298; and
(d) Ensure that local standards and criteria for land uses and
for land development and transportation plans that implement the
scenarios selected under subsection (2)(b) of this section:
(A) Are contained in the amendments to regional framework
plans, functional plans, comprehensive plans and land use
regulations required by subsections (3) of this section; and
(B) Do not have the effect of preventing, discouraging or
delaying the implementation of the scenarios, except as necessary
to protect the public health and safety.
(9) The { - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + } may extend the
deadline for adoption of the rules required under subsection (6)
of this section for up to 90 days if the commission determines
that the extension will not delay a metropolitan service
district's completion of land use and transportation scenarios as
described in subsection (2) of this section.
SECTION 1075. Section 38, chapter 865, Oregon Laws 2009, is
amended to read:
{ + Sec. 38. + } (1) As used in this section, 'metropolitan
service district' means a metropolitan service district
established under ORS chapter 268.
(2) On or before February 1, 2012, the { - Department of Land
Conservation and Development - } { + Oregon Department of
Natural Resources + } and the Department of Transportation shall
report to the House and Senate interim committees related to
transportation on progress toward implementing the land use and
transportation scenario described in section 37 { + , chapter
865, Oregon Laws 2009 + }
{ - of this 2009 Act - } . The report must include:
(a) The scenarios of a metropolitan service district that are
described in section 37 (2) { + , chapter 865, Oregon Laws
2009 + } { - of this 2009 Act - } ; and
(b) The rules adopted pursuant to section 37 (6) { + , chapter
865, Oregon Laws 2009 + } { - of this 2009 Act - } .
(3) On or before February 1, 2014, the { - Land Conservation
and Development Commission - } { + Oregon Natural Resources
Commission + } and the Department of Transportation shall report
to the House and Senate interim committees related to
transportation on progress toward implementing the land use and
transportation scenario described in section 37 { + , chapter
865, Oregon Laws 2009 + } { - of this 2009 Act - } . The report
must include:
(a) The rules adopted pursuant to section 37 (8) { + , chapter
865, Oregon Laws 2009 + } { - of this 2009 Act - } ;
(b) A description of the completed planning and work remaining
to be completed; and
(c) Recommendations as to how the planning requirements of
section 37 { + , chapter 865, Oregon Laws 2009, + } { - of this
2009 Act - } should be extended to metropolitan planning
organizations serving areas with populations of more than 200,000
or to cities located outside the boundaries of metropolitan
planning organizations that have significant levels of commuting
trips to destinations within the boundaries of a metropolitan
planning organization.
SECTION 1076. Section 38a, chapter 865, Oregon Laws 2009, is
amended to read:
{ + Sec. 38a. + } (1) As used in this section, 'metropolitan
planning organization' has the meaning given that term in ORS
197.629.
(2) Except as provided in subsection (6) of this section, on or
before July 1, 2013, with the assistance of the Department of
Transportation and a metropolitan service district, a
metropolitan planning organization that serves Eugene and
Springfield shall develop modeling and other capabilities needed
to perform the planning functions described in subsections (3)
and (4) of this section.
(3)(a) Except as provided in subsection (6) of this section, on
or after January 1, 2013, a metropolitan planning organization
that serves Eugene and Springfield, shall develop two or more
alternative land use and transportation scenarios that
accommodate planned population and employment growth while
achieving a reduction in greenhouse gas emissions from motor
vehicles with a gross vehicle weight rating of 10,000 pounds or
less.
(b) When developing the land use and transportation scenarios
described in subsection (a) of this section, the metropolitan
planning organization shall take into account the amount of
greenhouse emissions, caused by motor vehicles with a gross
vehicle weight rating of 10,000 pounds or less, that need to be
reduced in 2035 in order to meet the goals stated in ORS
468A.205. The metropolitan planning organization shall take into
consideration the reductions in vehicle emissions that are likely
to result by 2035 from the use of improved vehicle technologies
and fuels.
(4) The local governments within the boundaries of a
metropolitan planning organization that serves Eugene and
Springfield shall cooperatively select, after public review and
comment on the scenarios within the boundaries of the
metropolitan planning organization, one scenario described in
subsection (3) of this section.
(5)(a) The Department of Transportation and the
{ - Department of Land Conservation and Development - }
{ + Oregon Department of Natural Resources + } shall provide
technical assistance, grant support and guidance for the land use
and transportation scenarios and local planning described in
subsections (3) and (4) of this section.
(b) Metro, with grant assistance provided by the Department of
Transportation, shall make its land use modeling capabilities
available to metropolitan planning organizations that lack
similar capabilities.
(c) The Department of Transportation shall provide funds for
rulemaking, technical assistance and grants under this section
from available funds.
(6) A metropolitan planning organization that serves Eugene and
Springfield, and local governments within the jurisdiction of the
organization, are not required to comply with subsections (2) and
(3) of this section unless the organization and local governments
receive sufficient funds for reimbursement of costs in carrying
out the provisions of subsections (2) and (3) of this section.
(7) A metropolitan planning organization that serves Eugene and
Springfield shall report:
(a) On or before February 1, 2014, to the House and Senate
interim committees related to transportation. The report shall
include recommendations for a cooperative process of rulemaking
and enforcement of the rules.
(b) To the Seventy-eighth Legislative Assembly, the manner
provided in ORS 192.245, on the implications of implementing the
land use and transportation scenario selected under paragraph (a)
of this subsection by amendments to the local government's
comprehensive plan and land use regulations.
SECTION 1077. Section 2, chapter 8, Oregon Laws 2010, is
amended to read:
{ + Sec. 2. + } For purposes of section 6 (6)(f), chapter
424, Oregon Laws 2007, if a claimant acquired property on or
after January 25, 1975, and before the date the comprehensive
plan for the county in which the property is located was first
acknowledged by the { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + } to
comply with the statewide land use planning goals, the claimant
is deemed to have been lawfully permitted to establish one or
more home sites, as follows:
(1) For property that was subsequently designated in the first
acknowledged comprehensive plan as land subject to a goal related
to agricultural lands or a goal related to forestlands and that
was not zoned, was subject to a zone without a fixed minimum
acreage standard or was subject to a zone with a fixed minimum
acreage standard that would have allowed at least the number of
home sites that would result under the application of this
subsection:
(a) If the property contains less than 20 acres, the claimant
is deemed to have been lawfully permitted to establish one home
site on the property.
(b) If the property contains at least 20 acres and less than 40
acres, the claimant is deemed to have been lawfully permitted to
establish up to two home sites on the property.
(c) If the property contains 40 acres or more, the claimant is
deemed to have been lawfully permitted to establish up to three
home sites on the property.
(2) For property that was subsequently designated in the first
acknowledged comprehensive plan as land subject to a goal related
to agricultural lands or a goal related to forestlands and that
was subject to a zone with a fixed minimum acreage standard that
would not have allowed at least the number of home sites that
would result under the application of subsection (1) of this
section, the claimant is deemed to have been lawfully permitted
to establish up to three home sites on the property, consistent
with the fixed minimum acreage standard in the zone on the date
the claimant acquired the property.
(3) For property that was subsequently designated in the first
acknowledged comprehensive plan as land for rural residential
development:
(a) If the property was not zoned or was zoned to allow
residential development at a density equal to or greater than one
dwelling per two acres, the claimant is deemed to have been
lawfully permitted to establish up to three home sites with a
minimum acreage standard of two acres.
(b) If the property was zoned for residential development at a
density of less than one dwelling per two acres, the claimant is
deemed to have been lawfully permitted to establish up to three
home sites, consistent with the density of residential
development allowed in the zone on the date the claimant acquired
the property.
(4) Notwithstanding subsections (1) and (2) of this section, if
the record of the claim includes a county evaluation and
determination of the compliance or noncompliance of the requested
residential use with the applicable statewide land use planning
goals, the { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + }
may defer to that analysis.
SECTION 1078. Section 4, chapter 8, Oregon Laws 2010, is
amended to read:
{ + Sec. 4. + } For purposes of section 6 (6)(f), chapter
424, Oregon Laws 2007, if, on or after the date the comprehensive
plan for the county in which the property is located was first
acknowledged by the { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + } to
comply with the statewide land use planning goals, the property
was subject to a resource zone without a fixed minimum acreage
standard, the fixed minimum acreage standard is deemed to have
been 40 acres for purposes of determining the number of home
sites that a claimant would have been lawfully permitted to
establish unless the record of the claim establishes that the
claimant was lawfully permitted to establish a home site on a lot
or parcel of a different acreage.
SECTION 1079. Section 6, chapter 8, Oregon Laws 2010, is
amended to read:
{ + Sec. 6. + } (1) Notwithstanding the requirement in
section 6 (6), chapter 424, Oregon Laws 2007, that a claimant
must have filed a claim with both the state and the county in
which the property is located, the claimant is eligible for the
approval of a maximum of one dwelling under section 6, chapter
424, Oregon Laws 2007, and, unless the property includes a vacant
lot or parcel for the dwelling, the claimant also is eligible for
approval of a maximum of one lot or parcel on which the dwelling
must be established if the claimant:
(a) Filed, and did not withdraw, a valid claim with a county
under ORS 195.305 before December 6, 2007; and
(b) Did not file a claim with the state.
(2) Counties shall provide certified copies of the claims
described in this section on or before June 30, 2010, to the
{ - Department of Land Conservation and Development - }
{ + Oregon Department of Natural Resources + } for review.
(3) After receiving claims from counties as required under
subsection (2) of this section, the department shall notify the
claimants that may be eligible for relief under this section.
(4) Section 6 (1) to (3), chapter 424, Oregon Laws 2007, does
not apply to claims described in this section.
(5) For purposes of this section, if the claimant filed a claim
with a county on or after November 1, 2006, and died after filing
the claim, a person that acquired the property by devise or by
operation of law may prosecute the claim.
SECTION 1080. Section 7, chapter 8, Oregon Laws 2010, is
amended to read:
{ + Sec. 7. + } (1) The { - Department of Land Conservation
and Development - } { + Oregon Department of Natural
Resources + } shall issue a final order for each claim reviewed
under section 5 or 6 { + , chapter 8, Oregon Laws 2010, + }
{ - of this 2010 Act - } on or before June 30, 2011.
(2) The department shall charge a fee of $2,500 for processing
a claim that becomes eligible for review under section 5 or
6 { + , chapter 8, Oregon Laws 2010 + } { - of this 2010
Act - } .
(3) Moneys collected from the fee required by this section must
be deposited in the Compensation and Conservation Fund
established by ORS 195.336.
(4) If a claimant does not pay the fee required by this section
on or before a date established by rule of the department, the
department may close the claim without further review of or
action on the claim.
(5) If the department does not issue a final order on a claim
by the date specified in subsection (1) of this section, the
department shall refund the fee paid pursuant to this section.
(6) The department may adopt rules for the processing of claims
under section 5 or 6 { + , chapter 8, Oregon Laws 2010 + }
{ - of this 2010 Act - } .
SECTION 1081. Section 1, chapter 44, Oregon Laws 2010, is
amended to read:
{ + Sec. 1. + } (1) If a person concludes that more detailed
soils information than that contained in the Internet soil survey
of soil data and information produced by the National Cooperative
Soil Survey operated by the Natural Resources Conservation
Service of the United States Department of Agriculture would
assist a county to make a better determination of whether land
qualifies as agricultural land, the person must request that the
{ - Department of Land Conservation and Development - }
{ + Oregon Department of Natural Resources + } arrange for an
assessment of the capability of the land by a professional soil
classifier who is:
(a) Certified by and in good standing with the Soil Science
Society of America; and
(b) Chosen by the person.
(2) A soils assessment produced under this section is not a
public record, as defined in ORS 192.410, unless the person
requesting the assessment utilizes the assessment in a land use
proceeding. If the person decides to utilize a soils assessment
produced under this section in a land use proceeding, the person
shall inform the { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + }
and consent to the release by the department of certified copies
of all assessments produced under this section regarding the land
to the local government conducting the land use proceeding. The
department:
(a) Shall review soils assessments prepared under this section.
(b) May not disclose a soils assessment prior to its
utilization in a land use proceeding as described in this
subsection without written consent of the person paying the fee
for the assessment.
(c) Shall release to the local government conducting a land use
proceeding all soils assessments produced under this section
regarding land to which the land use proceeding applies.
(3) Before arranging for a soils assessment under this section,
the department shall charge and collect from the person
requesting the assessment a fee in an amount intended to meet the
costs of the department to assess the soils and administer this
section.
(4) The department shall deposit fees collected under this
section in the Soils Assessment Fund established under section
2 { + , chapter 44, Oregon Laws 2010 + } { - of this 2010
Act - } .
(5) This section authorizes a person to obtain additional
information for use in the determination of whether land
qualifies as agricultural land, but this section does not
otherwise affect the process by which a county determines whether
land qualifies as agricultural land.
SECTION 1082. Section 2, chapter 44, Oregon Laws 2010, is
amended to read:
{ + Sec. 2. + } The Soils Assessment Fund is established in
the State Treasury, separate and distinct from the General Fund.
Interest earned by the Soils Assessment Fund shall be credited to
the fund. Moneys in the fund are continuously appropriated to
the
{ - Department of Land Conservation and Development - }
{ + Oregon Department of Natural Resources + } to meet the costs
of the department to assess soils under and to administer section
1 { + , chapter 44, Oregon Laws 2010 + } { - of this 2010
Act - } .
SECTION 1083. Section 2, chapter 68, Oregon Laws 2010, is
amended to read:
{ + Sec. 2. + } (1) The { - Department of Land Conservation
and Development - } { + Oregon Department of Natural
Resources + } shall cause a study to be conducted on how to best
develop commercially viable marine renewable energy resources in
this state. The study may include, but is not limited to, the
following subjects:
(a) The overall needs, opportunities and constraints regarding
development of marine renewable energy resources.
(b) The potential economic impacts on other ocean industries
and coastal communities caused by development of marine renewable
energy resources.
(c) Environmental conditions and limitations affecting the
development of marine renewable energy resources.
(d) Relevant state and federal regulatory structures affecting
the development of marine renewable energy resources.
(e) Public and private financial and investment needs of marine
renewable energy resource production.
(f) Capacity of and constraints on local coastal utilities to
use marine renewable energy in their service areas.
(g) Trends and opportunities in energy conversion technologies.
(h) Operational considerations and opportunities for marine
renewable energy.
(i) Research needs and opportunities.
(j) Opportunities for funding, including state tax credits,
feed-in tariffs, incentives and other available sources of
research and development funds.
(2) The department shall invite participation by and
consultation with other state agencies, including Oregon State
University, other federal agencies and appropriate stakeholders,
in the development of the scope and content of the study.
(3) The department shall coordinate review of the study with a
committee organized by the department that has experience with
providing policy guidance and direction for marine renewable
energy resources in the territorial sea. The committee shall
review the recommendations and results of the study and forward
appropriate recommendations, with any recommended modifications
from the committee, to the Seventy-sixth Legislative Assembly.
SECTION 1084. Section 3, chapter 68, Oregon Laws 2010, is
amended to read:
{ + Sec. 3. + } The Marine Renewable Energy Resources Study
Fund is established in the State Treasury, separate and distinct
from the General Fund. The Marine Renewable Energy Resources
Study Fund shall consist of contributions of moneys from any
source, public or private. Interest earned by the Marine
Renewable Energy Resources Study Fund shall be credited to the
fund. Moneys in the fund are continuously appropriated to the
{ - Department of Land Conservation and Development - }
{ + Oregon Department of Natural Resources + } for the purposes
of section 2 { + , chapter 68, Oregon Laws 2010 + } { - of this
2010 Act - } . No moneys from the General Fund or from federal
funds appropriated or otherwise obligated to support other
department programs may be deposited into the Marine Renewable
Energy Resources Study Fund. The department may accept assistance
from any source, public or private, and may agree to conditions
placed on the moneys not inconsistent with the provisions of
section 2 { + , chapter 68, Oregon Laws 2010 + } { - of this
2010 Act - } .
SECTION 1085. Section 5, chapter 84, Oregon Laws 2010, is
amended to read:
{ + Sec. 5. + } A county shall amend its land use regulations
to conform to the requirements of sections 2, 3 and 4 { + ,
chapter 84, Oregon Laws 2010 + } { - of this 2010 Act - } .
Notwithstanding contrary provisions of state law or a county
charter relating to public hearings on amendments to an
ordinance, a county may adopt amendments to its land use
regulations required by this section without holding a public
hearing and without adopting findings if:
(1) The county has given notice to the { - Department of Land
Conservation and Development - } { + Oregon Department of
Natural Resources + } of the proposed amendments in the manner
provided by ORS 197.610; and
(2) The department has confirmed in writing that the only
effect of the proposed amendments is to conform the county's land
use regulations to the requirements of sections 2, 3 and 4 { + ,
chapter 84, Oregon Laws 2010 + } { - of this 2010 Act - } .
SECTION 1086. Section 3, chapter 85, Oregon Laws 2010, is
amended to read:
{ + Sec. 3. + } (1) The Department of Transportation and the
{ - Department of Land Conservation and Development - }
{ + Oregon Department of Natural Resources + }, after
consultation with and in cooperation with metropolitan planning
organizations, other state agencies, local governments and
stakeholders, shall establish guidelines for developing and
evaluating alternative land use and transportation scenarios that
may reduce greenhouse gas emissions. The guidelines must, at a
minimum:
(a) Establish a process for developing alternative land use and
transportation scenarios;
(b) Take into account the full range of actions local
governments may take concerning land use and transportation
planning;
(c) Allow sufficient flexibility for different local
governments to meet the needs of their individual communities;
(d) Provide for coordination between state agencies and local
governments;
(e) Encourage local innovation to reduce greenhouse gas
emissions; and
(f) Provide examples of alternative land use and transportation
scenarios.
(2) The Department of Transportation and the { - Department
of Land Conservation and Development - } { + Oregon Department
of Natural Resources + } shall actively solicit public review and
comment in the development of the guidelines.
SECTION 1087. Section 4, chapter 85, Oregon Laws 2010, is
amended to read:
{ + Sec. 4. + } (1) The Department of Transportation and the
{ - Department of Land Conservation and Development - }
{ + Oregon Department of Natural Resources + }, after
consultation with and in cooperation with metropolitan planning
organizations, local governments and other stakeholders, shall
establish a toolkit to assist local governments in developing and
executing actions and programs to reduce greenhouse gas emissions
from motor vehicles with a gross vehicle weight rating of 10,000
pounds or less.
(2) A toolkit shall include, but is not limited to, the
following material:
(a) Information about actions and programs local governments
can implement on the local and regional level to reduce
greenhouse gas emissions;
(b) Information about the potential effectiveness of the
actions and programs in reducing greenhouse gas emissions;
(c) Information about the cost-effectiveness of the actions and
programs;
(d) Estimates of the time required to implement the actions and
programs;
(e) Guidelines for best management practices for analyzing and
executing the actions and programs;
(f) Modeling and analysis tools that metropolitan planning
organizations and local governments may use to assess greenhouse
gas emissions reduction benefits from actions affecting land use
and transportation; and
(g) Educational tools that metropolitan planning organizations
and local governments may use to inform the public about
greenhouse gas emissions reduction targets and strategies.
(3) The Department of Transportation and the { - Department
of Land Conservation and Development - } { + Oregon Department
of Natural Resources + } shall actively solicit public review and
comment in the development of the toolkit.
SECTION 1088. Section 5, chapter 85, Oregon Laws 2010, is
amended to read:
{ + Sec. 5. + } (1) Except as provided in subsection (3) of
this section, on or before June 1, 2011, the { - Land
Conservation and Development Commission - } { + Oregon Natural
Resources Commission + }, after consultation with and in
cooperation with the Oregon Transportation Commission, local
governments and metropolitan planning organizations, shall adopt
rules identifying a reduction target for greenhouse gas emissions
caused by motor vehicles with a gross vehicle weight rating of
10,000 pounds or less to be met by each region served by a
metropolitan planning organization. The rules must reflect the
greenhouse gas emissions reduction goals set forth in ORS
468A.205 and must take into consideration the reductions in
vehicle emissions that are likely to result by 2035 from the use
of improved vehicle technologies and fuels. The rules must also
take into consideration methods of equitably allocating
reductions among the metropolitan areas given differences in
population growth rates. On or before March 1, 2011, the
Department of Transportation, the Department of Environmental
Quality and the State Department of Energy shall provide the
{ - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + } with the information
or projections necessary to determine the proposed greenhouse gas
emissions reduction target for 2035.
(2) In order for the { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + } to
adopt rules pursuant to subsection (1) of this section:
(a) The Department of Transportation shall provide the
Department of Environmental Quality and the State Department of
Energy with an estimate of the vehicle miles traveled within the
boundaries of each metropolitan planning organization in 1990 by
motor vehicles with a gross vehicle weight rating of 10,000
pounds or less, based on available records.
(b) The Department of Transportation shall provide the
Department of Environmental Quality and the State Department of
Energy with an estimate of the rate at which new vehicles will
replace existing vehicles among the vehicles described in
paragraph (a) of this subsection.
(c) The Department of Environmental Quality and the State
Department of Energy shall estimate the greenhouse gas emissions
for 1990 for each region served by a metropolitan planning
organization resulting from the travel by motor vehicles
described in paragraph (a) of this subsection, using available
records of the average emissions per mile emitted by the motor
vehicles in 1990 and the estimates provided by the Department of
Transportation under paragraph (a) of this subsection.
(d) The Department of Environmental Quality and the State
Department of Energy shall estimate the average greenhouse gas
emissions in 2035 emitted by motor vehicles described in
paragraph (a) of this subsection. The estimate must take into
account the motor vehicles that the Department of Transportation
predicts will have replaced existing vehicles as described in
paragraph (b) of this subsection. The estimate must be based on
available reasonable data provided by public or private entities
concerning the improvements in vehicle technologies that will be
available for use by 2035.
(e) The Department of Environmental Quality and the State
Department of Energy shall recommend to the { - Land
Conservation and Development Commission - } { + Oregon Natural
Resources Commission + } a percentage by which the emissions from
motor vehicles described in paragraph (a) of this subsection need
to be reduced below their 1990 emission levels by 2035 in order
to achieve the reduction in emissions from vehicles necessary to
achieve the total greenhouse gas emissions reduction goals set
for 2050 by ORS 468A.205.
(f) The Department of Environmental Quality and the State
Department of Energy shall calculate the estimated miles of
travel by motor vehicles described in paragraph (a) of this
subsection that may be accommodated in 2035 by each region served
by a metropolitan planning organization based on the estimates
performed under paragraphs (a) to (d) of this subsection and the
recommendation required by paragraph (e) of this subsection.
(g) The Department of Transportation, the Department of
Environmental Quality and the State Department of Energy shall
recommend to the { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + }
modeling tools or other methods that each region served by a
metropolitan planning organization may use to adjust its
recommended number of miles of travel as described in paragraph
(f) of this subsection, to account for additional greenhouse gas
emissions resulting from increased traffic congestion or
reductions in emissions resulting from measures that reduce
traffic congestion.
(h) On or before March 1, 2011, the Department of
Transportation, the Department of Environmental Quality and the
State Department of Energy shall submit the information required
by paragraphs (a) to (g) of this subsection to the { - Land
Conservation and Development Commission - } { + Oregon Natural
Resources Commission + }, including but not limited to citations
to sources relied on and calculations made.
(3) Subsection (1) of this section does not apply to the region
served by the metropolitan planning organization that serves
Portland.
SECTION 1089. Section 6, chapter 85, Oregon Laws 2010, is
amended to read:
{ + Sec. 6. + } The Department of Transportation and the
{ - Department of Land Conservation and Development - }
{ + Oregon Department of Natural Resources + }, after
consultation with and in cooperation with other state agencies
and the Oregon University System, shall:
(1) Educate the public about the need to reduce greenhouse gas
emissions from motor vehicles with a gross vehicle weight rating
of 10,000 pounds or less; and
(2) Educate the public about the costs and benefits of reducing
greenhouse gas emissions.
SECTION 1090. Section 9, chapter 85, Oregon Laws 2010, is
amended to read:
{ + Sec. 9. + } The Department of Transportation and the
{ - Department of Land Conservation and Development - }
{ + Oregon Department of Natural Resources + } shall make a
joint report to the Seventy-seventh Legislative Assembly, in the
manner provided in ORS 192.245, regarding:
(1) The progress made in developing:
(a) The statewide transportation strategy on greenhouse gas
emissions adopted by the Oregon Transportation Commission
pursuant to section 2 { + , chapter 85, Oregon Laws 2010 + }
{ - of this 2010 Act - } ;
(b) The guidelines established by the Department of
Transportation and the { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + }
pursuant to section 3 { + , chapter 85, Oregon Laws 2010 + }
{ - of this 2010 Act - } ; and
(c) The toolkit established by the Department of Transportation
and the { - Department of Land Conservation and Development - }
{ + Oregon Department of Natural Resources + } pursuant to
section 4 { + , chapter 85, Oregon Laws 2010 + } { - of this
2010 Act - } .
(2) Recommendations on how to meet the greenhouse gas emissions
reduction targets identified in section 5 { + , chapter 85,
Oregon Laws 2010 + } { - of this 2010 Act - } .
(3) Whether additional actions or a different framework is
necessary to carry out the greenhouse gas emissions reduction
goals set forth in ORS 468A.205.
{ +
LAND USE BOARD OF APPEALS + }
{ +
(Abolishment and Transfer of + }
{ +
Duties, Functions and Powers) + }
SECTION 1091. { + (1) The Land Use Board of Appeals is
abolished. On the operative date of this section, the tenure of
office of the members of the Land Use Board of Appeals ceases.
(2) All the duties, functions and powers of the Land Use Board
of Appeals are imposed upon, transferred to and vested in the
Oregon Department of Natural Resources. + }
{ +
(Transfer of Records, Property and Employees) + }
SECTION 1092. { + (1) The board chairperson of the Land Use
Board of Appeals shall:
(a) Deliver to the Oregon Department of Natural Resources all
records and property within the jurisdiction of the board
chairperson that relate to the duties, functions and powers
transferred by section 1091 of this 2011 Act; and
(b) Transfer to the Oregon Department of Natural Resources
those employees engaged primarily in the exercise of the duties,
functions and powers transferred by section 1091 of this 2011
Act.
(2) The Director of the Oregon Department of Natural Resources
shall take possession of the records and property, and shall take
charge of the employees and employ them in the exercise of the
duties, functions and powers transferred by section 1091 of this
2011 Act, without reduction of compensation but subject to change
or termination of employment or compensation as provided by law.
(3) The Governor shall resolve any dispute between the Land Use
Board of Appeals and the Oregon Department of Natural Resources
relating to transfers of records, property and employees under
this section, and the Governor's decision is final. + }
{ +
(Transfer of Unexpended Revenues) + }
SECTION 1093. { + (1) The unexpended balances of amounts
authorized to be expended by the Land Use Board of Appeals for
the biennium beginning July 1, 2011, from revenues dedicated,
continuously appropriated, appropriated or otherwise made
available for the purpose of administering and enforcing the
duties, functions and powers transferred by section 1091 of this
2011 Act are transferred to and are available for expenditure by
the Oregon Department of Natural Resources for the biennium
beginning July 1, 2011, for the purpose of administering and
enforcing the duties, functions and powers transferred by section
1091 of this 2011 Act.
(2) The expenditure classifications, if any, established by
Acts authorizing or limiting expenditures by the Land Use Board
of Appeals remain applicable to expenditures by the Oregon
Department of Natural Resources under this section. + }
{ +
(Action, Proceeding and Prosecution) + }
SECTION 1094. { + The transfer of duties, functions and powers
to the Oregon Department of Natural Resources by section 1091 of
this 2011 Act does not affect any action, proceeding or
prosecution involving or with respect to such duties, functions
and powers begun before and pending at the time of the transfer,
except that the Oregon Department of Natural Resources is
substituted for the Land Use Board of Appeals in the action,
proceeding or prosecution. + }
{ +
(Liability, Duty and Obligation) + }
SECTION 1095. { + (1) Nothing in sections 1091 to 1097 of this
2011 Act, the amendments to statutes by sections 28 to 411, 422
to 576, 585 to 901, 912 to 1090, 1099 to 1112, 1122 to 1257, 1269
to 1749k, 1758 to 1780, 1791 to 2081 and 2091 to 2160 of this
2011 Act or the repeal of ORS 197.810, 197.815 or 197.832 by
section 2161 of this 2011 Act relieves a person of a liability,
duty or obligation accruing under or with respect to the duties,
functions and powers transferred by section 1091 of this 2011
Act. The Oregon Department of Natural Resources may undertake the
collection or enforcement of any such liability, duty or
obligation.
(2) The rights and obligations of the Land Use Board of Appeals
legally incurred under contracts, leases and business
transactions executed, entered into or begun before the operative
date of section 1091 of this 2011 Act are transferred to the
Oregon Department of Natural Resources. For the purpose of
succession to these rights and obligations, the Oregon Department
of Natural Resources is a continuation of the Land Use Board of
Appeals and not a new authority. + }
{ +
(Rules) + }
SECTION 1096. { + Notwithstanding the transfer of duties,
functions and powers by section 1091 of this 2011 Act, the rules
of the Land Use Board of Appeals in effect on the operative date
of section 1091 of this 2011 Act continue in effect until
superseded or repealed by rules of the Oregon Department of
Natural Resources. References in rules of the Land Use Board of
Appeals to the Land Use Board of Appeals, or to an officer or
employee of the Land Use Board of Appeals, are considered to be
references to the Oregon Department of Natural Resources or to an
officer or employee of the Oregon Department of Natural
Resources. + }
{ +
(References) + }
SECTION 1097. { + Whenever, in any uncodified law or
resolution of the Legislative Assembly or in any rule, document,
record or proceeding authorized by the Legislative Assembly,
reference is made to the Land Use Board of Appeals, or to an
officer or employee of the Land Use Board of Appeals, the
reference is considered to be a reference to the Oregon
Department of Natural Resources or to an officer or employee of
the Oregon Department of Natural Resources. + }
{ +
(Agency Name Change) + }
SECTION 1098. { + For the purpose of harmonizing and
clarifying statutory law, the Legislative Counsel may substitute
for words designating the 'Land Use Board of Appeals' or its
officers, wherever they occur in statutory law, words designating
the ' Oregon Department of Natural Resources' or its
officers. + }
{ +
(Account Name Change) + }
SECTION 1098a. { + For the purpose of harmonizing and
clarifying statutory law, the Legislative Counsel may substitute
for words designating the 'Board Publications Account' wherever
they occur in statutory law, words designating the 'Oregon
Natural Resources Fund.' + }
{ +
(Conforming Amendments) + }
SECTION 1099. ORS 34.102 is amended to read:
34.102. (1) As used in this section, 'municipal corporation'
means a county, city, district or other municipal corporation or
public corporation organized for a public purpose, including a
cooperative body formed between municipal corporations.
(2) Except for a proceeding resulting in a land use decision or
limited land use decision as defined in ORS 197.015, for which
review is provided in ORS 197.830 to 197.845, or an expedited
land division as described in ORS 197.360, for which review is
provided in ORS 197.375 (8), the decisions of the governing body
of a municipal corporation acting in a judicial or quasi-judicial
capacity and made in the transaction of municipal corporation
business shall be reviewed only as provided in ORS 34.010 to
34.100, and not otherwise.
(3) A petition for writ of review filed in the circuit court
and requesting review of a land use decision or limited land use
decision as defined in ORS 197.015 of a municipal corporation
shall be transferred to the { - Land Use Board of Appeals - }
{ + Oregon Department of Natural Resources + } and treated as a
notice of intent to appeal { + the decision under ORS 197.830 to
197.845 + } if the petition was filed within the time allowed for
filing a notice of intent to appeal pursuant to ORS 197.830. If
the petition was not filed within the time allowed by ORS
197.830, the court shall dismiss the petition.
(4) A notice of intent to appeal filed with the { - Land Use
Board of Appeals - } { + department + } pursuant to ORS 197.830
and requesting review of a decision of a municipal corporation
made in the transaction of municipal corporation business that is
not reviewable as a land use decision or limited land use
decision as defined in ORS 197.015 shall be transferred to the
circuit court and treated as a petition for writ of review. If
the notice was not filed with the { - board - }
{ + department + } within the time allowed for filing a petition
for writ of review pursuant to ORS 34.010 to 34.100, the court
shall dismiss the petition.
(5) In any case in which the { - Land Use Board of
Appeals - } { + department + } or circuit court to which a
petition or notice is transferred under subsection (3) or (4) of
this section disputes whether it has authority to review the
decision with which the petition or notice is concerned, the
{ - board - } { + department + } or court before which the
matter is pending shall refer the question of whether the
{ - board - } { + department + } or court has authority to
review to the Court of Appeals, which shall decide the question
in a summary manner.
SECTION 1100. ORS 197.195 is amended to read:
197.195. (1) A 'limited land use decision' shall be consistent
with applicable provisions of city or county comprehensive plans
and land use regulations. Such a decision may include conditions
authorized by law. Within two years of September 29, 1991, cities
and counties shall incorporate all comprehensive plan standards
applicable to limited land use decisions into their land use
regulations. A decision to incorporate all, some, or none of the
applicable comprehensive plan standards into land use regulations
shall be undertaken as a post-acknowledgment amendment under ORS
197.610 to 197.625. If a city or county does not incorporate its
comprehensive plan provisions into its land use regulations, the
comprehensive plan provisions may not be used as a basis for a
decision by the city or county or on appeal from that decision.
(2) A limited land use decision is not subject to the
requirements of ORS 197.763.
(3) A limited land use decision is subject to the requirements
of paragraphs (a) to (c) of this subsection.
(a) In making a limited land use decision, the local government
shall follow the applicable procedures contained within its
acknowledged comprehensive plan and land use regulations and
other applicable legal requirements.
(b) For limited land use decisions, the local government shall
provide written notice to owners of property within 100 feet of
the entire contiguous site for which the application is made.
The list shall be compiled from the most recent property tax
assessment roll. For purposes of review, this requirement shall
be deemed met when the local government can provide an affidavit
or other certification that such notice was given. Notice shall
also be provided to any neighborhood or community organization
recognized by the governing body and whose boundaries include the
site.
(c) The notice and procedures used by local government shall:
(A) Provide a 14-day period for submission of written comments
prior to the decision;
(B) State that issues which may provide the basis for an appeal
to the { - Land Use Board of Appeals - } { + Oregon
Department of Natural Resources + } shall be raised in writing
prior to the expiration of the comment period. Issues shall be
raised with sufficient specificity to enable the decision maker
to respond to the issue;
(C) List, by commonly used citation, the applicable criteria
for the decision;
(D) Set forth the street address or other easily understood
geographical reference to the subject property;
(E) State the place, date and time that comments are due;
(F) State that copies of all evidence relied upon by the
applicant are available for review, and that copies can be
obtained at cost;
(G) Include the name and phone number of a local government
contact person;
(H) Provide notice of the decision to the applicant and any
person who submits comments under subparagraph (A) of this
paragraph. The notice of decision must include an explanation of
appeal rights; and
(I) Briefly summarize the local decision making process for the
limited land use decision being made.
(4) Approval or denial of a limited land use decision shall be
based upon and accompanied by a brief statement that explains the
criteria and standards considered relevant to the decision,
states the facts relied upon in rendering the decision and
explains the justification for the decision based on the
criteria, standards and facts set forth.
(5) A local government may provide for a hearing before the
local government on appeal of a limited land use decision under
this section. The hearing may be limited to the record developed
pursuant to the initial hearing under subsection (3) of this
section or may allow for the introduction of additional testimony
or evidence. A hearing on appeal that allows the introduction of
additional testimony or evidence shall comply with the
requirements of ORS 197.763. Written notice of the decision
rendered on appeal shall be given to all parties who appeared,
either orally or in writing, before the hearing. The notice of
decision shall include an explanation of the rights of each party
to appeal the decision.
SECTION 1101. ORS 197.375 is amended to read:
197.375. (1) An appeal of a decision made under ORS 197.360 and
197.365 shall be made as follows:
(a) An appeal must be filed with the local government within 14
days of mailing of the notice of the decision under ORS 197.365
(4), and shall be accompanied by a $300 deposit for costs.
(b) A decision may be appealed by:
(A) The applicant; or
(B) Any person or organization who files written comments in
the time period established under ORS 197.365.
(c) An appeal shall be based solely on allegations:
(A) Of violation of the substantive provisions of the
applicable land use regulations;
(B) Of unconstitutionality of the decision;
(C) That the application is not eligible for review under ORS
197.360 to 197.380 and should be reviewed as a land use decision
or limited land use decision; or
(D) That the parties' substantive rights have been
substantially prejudiced by an error in procedure by the local
government.
(2) The local government shall appoint a referee to decide the
appeal of a decision made under ORS 197.360 and 197.365. The
referee shall not be an employee or official of the local
government. However, a local government that has designated a
hearings officer under ORS 215.406 or 227.165 may designate the
hearings officer as the referee for appeals of a decision made
under ORS 197.360 and 197.365.
(3) Within seven days of being appointed to decide the appeal,
the referee shall notify the applicant, the local government, the
appellant if other than the applicant, any person or organization
entitled to notice under ORS 197.365 (2) that provided written
comments to the local government and all providers of public
facilities and services entitled to notice under ORS 197.365 (2)
and advise them of the manner in which they may participate in
the appeal. A person or organization that provided written
comments to the local government but did not file an appeal under
subsection (1) of this section may participate only with respect
to the issues raised in the written comments submitted by that
person or organization. The referee may use any procedure for
decision-making consistent with the interests of the parties to
ensure a fair opportunity to present information and argument.
The referee shall provide the local government an opportunity to
explain its decision, but is not limited to reviewing the local
government decision and may consider information not presented to
the local government.
(4)(a) The referee shall apply the substantive requirements of
the local government's land use regulations and ORS 197.360. If
the referee determines that the application does not qualify as
an expedited land division as described in ORS 197.360, the
referee shall remand the application for consideration as a land
use decision or limited land use decision. In all other cases,
the referee shall seek to identify means by which the application
can satisfy the applicable requirements.
(b) The referee may not reduce the density of the land division
application. The referee shall make a written decision approving
or denying the application or approving it with conditions
designed to ensure that the application satisfies the land use
regulations, within 42 days of the filing of an appeal. The
referee may not remand the application to the local government
for any reason other than as set forth in this subsection.
(5) Unless the governing body of the local government finds
exigent circumstances, a referee who fails to issue a written
decision within 42 days of the filing of an appeal shall receive
no compensation for service as referee in the appeal.
(6) Notwithstanding any other provision of law, the referee
shall order the local government to refund the deposit for costs
to an appellant who materially improves his or her position from
the decision of the local government. The referee shall assess
the cost of the appeal in excess of the deposit for costs, up to
a maximum of $500, including the deposit paid under subsection
(1) of this section, against an appellant who does not materially
improve his or her position from the decision of the local
government. The local government shall pay the portion of the
costs of the appeal not assessed against the appellant. The costs
of the appeal include the compensation paid the referee and costs
incurred by the local government, but not the costs of other
parties.
{ - (7) The Land Use Board of Appeals does not have
jurisdiction to consider any decisions, aspects of decisions or
actions made under ORS 197.360 to 197.380. - }
{ + (7) The procedures by which the Oregon Department of
Natural Resources appeals land use decisions and limited land use
decisions under ORS 197.830 to 197.845 do not apply to decisions
or to aspects of decisions or actions made under ORS 197.360 to
197.380. + }
(8) Any party to a proceeding before a referee under this
section may seek judicial review of the referee's decision in the
manner provided for review of final orders of the { - Land Use
Board of Appeals - } { + department + } under ORS 197.850 and
197.855. The Court of Appeals shall review decisions of the
referee in the same manner as provided for review of final orders
of the { - Land Use Board of Appeals - } { + department + }
in those statutes. However, notwithstanding ORS 197.850 (9) or
any other provision of law, the court shall reverse or remand the
decision only if the court finds:
(a) That the decision does not concern an expedited land
division as described in ORS 197.360 and the appellant raised
this issue in proceedings before the referee;
(b) That there is a basis to vacate the decision as described
in ORS 36.705 (1)(a) to (d), or a basis for modification or
correction of an award as described in ORS 36.710; or
(c) That the decision is unconstitutional.
SECTION 1102. ORS 197.540 is amended to read:
197.540. (1) In the manner provided in ORS 197.830 to 197.845,
the { - Land Use Board of Appeals - } { + Oregon Department
of Natural Resources + } shall review upon petition by a county,
city or special district governing body or state agency or a
person or group of persons whose interests are substantially
affected, any moratorium on construction or land development or a
corrective program alleged to have been adopted in violation of
the provisions of ORS 197.505 to 197.540.
(2) If the { - board - } { + department + } determines that
a moratorium or corrective program was not adopted in compliance
with the provisions of ORS 197.505 to 197.540, the
{ - board - } { + department + } shall issue an order
invalidating the moratorium.
(3) All review proceedings conducted by the { - Land Use
Board of Appeals - } { + department + } under subsection (1) of
this section shall be based on the administrative record, if any,
that is the subject of the review proceeding. The { - board - }
{ + department + } shall not substitute its judgment for a
finding solely of fact for which there is substantial evidence in
the whole record.
(4) Notwithstanding any provision of ORS chapters 195, 196 and
197 to the contrary, the sole standard of review of a moratorium
on construction or land development or a corrective program is
under the provisions of this section, and such a moratorium shall
not be reviewed for compliance with the statewide planning goals
adopted under ORS chapters 195, 196 and 197.
(5) The review of a moratorium on construction or land
development under subsection (1) of this section shall be the
sole authority for review of such a moratorium, and there shall
be no authority for review in the circuit courts of this state.
SECTION 1103. ORS 197.796 is amended to read:
197.796. (1) An applicant for a land use decision, limited land
use decision or expedited land division or for a permit under ORS
215.427 or 227.178 may accept a condition of approval imposed
under ORS 215.416 or 227.175 and file a challenge to the
condition under this section. Acceptance by an applicant for a
land use decision, limited land use decision, expedited land
division or permit under ORS 215.427 or 227.178 of a condition of
approval imposed under ORS 215.416 or 227.175 does not constitute
a waiver of the right to challenge the condition of approval.
Acceptance of a condition may include but is not limited to
paying a fee, performing an act or providing satisfactory
evidence of arrangements to pay the fee or to ensure compliance
with the condition.
(2) Any action for damages under this section shall be filed in
the circuit court of the county in which the application was
submitted within 180 days of the date of the decision.
(3)(a) A challenge filed pursuant to this section may not be
dismissed on the basis that the applicant did not request a
variance to the condition of approval or any other available form
of reconsideration of the challenged condition. However, an
applicant shall comply with ORS 197.763 (1) prior to appealing to
the { - Land Use Board of Appeals - } { + Oregon Department
of Natural Resources + } or bringing an action for damages in
circuit court and must exhaust all local appeals provided in the
local comprehensive plan and land use regulations before
proceeding under this section.
(b) In addition to the requirements of ORS 197.763 (5), at the
commencement of the initial public hearing, a statement shall be
made to the applicant that the failure of the applicant to raise
constitutional or other issues relating to proposed conditions of
approval with sufficient specificity to allow the local
government or its designee to respond to the issue precludes an
action for damages in circuit court.
(c) An applicant is not required to raise an issue under this
subsection unless the condition of approval is stated with
sufficient specificity to enable the applicant to respond to the
condition prior to the close of the final local hearing.
(4) In any challenge to a condition of approval that is subject
to the Takings Clause of the Fifth Amendment to the United States
Constitution, the local government shall have the burden of
demonstrating compliance with the constitutional requirements for
imposing the condition.
(5) In a proceeding in circuit court under this section, the
court shall award costs and reasonable attorney fees to a
prevailing party. Notwithstanding ORS 197.830 (15), in a
proceeding before the { - Land Use Board of Appeals - }
{ + department + } under this section, the { - board - }
{ + department + } shall award costs and reasonable attorney
fees to a prevailing party.
(6) This section applies to appeals by the applicant of a
condition of approval and claims filed in state court seeking
damages for the unlawful imposition of conditions of approval in
a land use decision, limited land use decision, expedited land
division or permit under ORS 215.427 or 227.178.
SECTION 1104. ORS 197.820 is amended to read:
197.820. (1) The { - Land Use Board of Appeals - }
{ + Oregon Department of Natural Resources + } shall conduct
review proceedings upon petitions filed in the manner prescribed
in ORS 197.830.
{ - (2) In conducting review proceedings the members of the
board may sit together or separately as the board chairperson
shall decide. - }
{ - (3) The board chairperson shall apportion the business of
the board among the members of the board. Each member shall have
the power to hear and issue orders on petitions filed with the
board and on all issues arising under those petitions. - }
{ - (4) The board shall adopt rules governing: - }
{ - (a) The conduct of review proceedings brought before it
under ORS 197.830 to 197.845. - }
{ - (b) The transfer of a matter to the board by the Director
of the Department of Land Conservation and Development under ORS
197.825 (2)(c). - }
{ + (2) The Director of the Oregon Department of Natural
Resources shall adopt rules governing the conduct of review
proceedings brought before the department under ORS 197.830 to
197.845.
(3) The director shall appoint no less than three officers to
review land use decisions and limited land use decisions under
ORS 197.830 to 197.845. The director may not participate in the
review of such decisions. + }
SECTION 1105. ORS 197.825 is amended to read:
197.825. (1) Except as provided in { - ORS 197.320 and - }
subsections (2) and (3) of this section, the { - Land Use Board
of Appeals - } { + Oregon Department of Natural Resources + }
shall have exclusive jurisdiction to review any land use decision
or limited land use decision of a local government, special
district or a state agency in the manner provided in ORS 197.830
to 197.845.
(2) The jurisdiction of the { - board - }
{ + department + }:
(a) Is limited to those cases in which the petitioner has
exhausted all remedies available by right before petitioning the
{ - board - } { + department + } for review;
(b) Is subject to the provisions of ORS 197.850 relating to
judicial review by the Court of Appeals;
(c) Does not include a local government decision that is:
(A) Submitted to the department { - of Land Conservation and
Development - } for acknowledgment under ORS 197.251, 197.626 or
197.628 to 197.650 or a matter arising out of a local government
decision submitted to the department for acknowledgment, unless
the Director of the { - Department of Land Conservation and
Development, in the director's sole discretion, transfers the
matter to the board - } { + Oregon Department of Natural
Resources determines that the procedures of ORS 197.830 to
197.845 are more appropriate for the acknowledgment + }; or
(B) Subject to the review authority of the department under ORS
197.430, 197.445, 197.450 or 197.455 or a matter related to a
local government decision subject to the review authority of the
department under ORS 197.430, 197.445, 197.450 or 197.455;
(d) Does not include those land use decisions of a state agency
over which the Court of Appeals has jurisdiction for initial
judicial review under ORS 183.400, 183.482 or other statutory
provisions;
(e) Does not include any rules, programs, decisions,
determinations or activities carried out under ORS 527.610 to
527.770, 527.990 (1) and 527.992;
(f) Is subject to ORS 196.115 for any county land use decision
that may be reviewed by the Columbia River Gorge Commission
pursuant to sections 10(c) or 15(a)(2) of the Columbia River
Gorge National Scenic Area Act, P.L. 99-663; and
(g) Does not include review of expedited land divisions under
ORS 197.360.
(3) Notwithstanding subsection (1) of this section, the circuit
courts of this state retain jurisdiction:
(a) To grant declaratory, injunctive or mandatory relief in
proceedings arising from decisions described in ORS 197.015
{ - (10)(b) - } { + (6)(b) + } or proceedings brought to
enforce the provisions of an adopted comprehensive plan or land
use regulations; and
(b) To enforce orders of the { - board - }
{ + department + } in appropriate proceedings brought by the
{ - board - } { + department + } or a party to the
{ - board - } { + department + } proceeding resulting in the
order.
SECTION 1106. ORS 197.828 is amended to read:
197.828. (1) The { - Land Use Board of Appeals - }
{ + Oregon Department of Natural Resources + } shall either
reverse, remand or affirm a limited land use decision on review.
(2) The { - board - } { + department + } shall reverse or
remand a limited land use decision if:
(a) The decision is not supported by substantial evidence in
the record. The existence of evidence in the record supporting a
different decision shall not be grounds for reversal or remand if
there is evidence in the record to support the final decision;
(b) The decision does not comply with applicable provisions of
the land use regulations;
(c) The decision is:
(A) Outside the scope of authority of the decision maker; or
(B) Unconstitutional; or
(d) The local government committed a procedural error which
prejudiced the substantial rights of the petitioner.
SECTION 1107. ORS 197.829 is amended to read:
197.829. (1) The { - Land Use Board of Appeals - }
{ + Oregon Department of Natural Resources + } shall affirm a
local government's interpretation of its comprehensive plan and
land use regulations, unless the { - board - }
{ + department + } determines that the local government's
interpretation:
(a) Is inconsistent with the express language of the
comprehensive plan or land use regulation;
(b) Is inconsistent with the purpose for the comprehensive plan
or land use regulation;
(c) Is inconsistent with the underlying policy that provides
the basis for the comprehensive plan or land use regulation; or
(d) Is contrary to a state statute, land use goal or rule that
the comprehensive plan provision or land use regulation
implements.
(2) If a local government fails to interpret a provision of its
comprehensive plan or land use regulations, or if such
interpretation is inadequate for review, the { - board - }
{ + department + } may make its own determination of whether the
local government decision is correct.
SECTION 1108. ORS 197.830 is amended to read:
197.830. (1) Review of land use decisions or limited land use
decisions under ORS 197.830 to 197.845 shall be commenced by
filing a notice of intent to appeal with the { - Land Use Board
of Appeals - } { + Oregon Department of Natural Resources + }.
(2) Except as provided in ORS 197.620 (1) and (2), a person may
petition the { - board - } { + department + } for review of a
land use decision or limited land use decision if the person:
(a) Filed a notice of intent to appeal the decision as provided
in subsection (1) of this section; and
(b) Appeared before the local government, special district or
state agency orally or in writing.
(3) If a local government makes a land use decision without
providing a hearing, except as provided under ORS 215.416 (11) or
227.175 (10), or the local government makes a land use decision
that is different from the proposal described in the notice of
hearing to such a degree that the notice of the proposed action
did not reasonably describe the local government's final actions,
a person adversely affected by the decision may appeal the
decision to the { - board - } { + department + } under this
section:
(a) Within 21 days of actual notice where notice is required;
or
(b) Within 21 days of the date a person knew or should have
known of the decision where no notice is required.
(4) If a local government makes a land use decision without a
hearing pursuant to ORS 215.416 (11) or 227.175 (10):
(a) A person who was not provided mailed notice of the decision
as required under ORS 215.416 (11)(c) or 227.175 (10)(c) may
appeal the decision to the { - board - } { + department + }
under this section within 21 days of receiving actual notice of
the decision.
(b) A person who is not entitled to notice under ORS 215.416
(11)(c) or 227.175 (10)(c) but who is adversely affected or
aggrieved by the decision may appeal the decision to the
{ - board - } { + department + } under this section within 21
days after the expiration of the period for filing a local appeal
of the decision established by the local government under ORS
215.416 (11)(a) or 227.175 (10)(a).
(c) A person who receives mailed notice of a decision made
without a hearing under ORS 215.416 (11) or 227.175 (10) may
appeal the decision to the { - board - } { + department + }
under this section within 21 days of receiving actual notice of
the nature of the decision, if the mailed notice of the decision
did not reasonably describe the nature of the decision.
(d) Except as provided in paragraph (c) of this subsection, a
person who receives mailed notice of a decision made without a
hearing under ORS 215.416 (11) or 227.175 (10) may not appeal the
decision to the { - board - } { + department + } under this
section.
(5) If a local government makes a limited land use decision
which is different from the proposal described in the notice to
such a degree that the notice of the proposed action did not
reasonably describe the local government's final actions, a
person adversely affected by the decision may appeal the decision
to the
{ - board - } { + department + } under this section:
(a) Within 21 days of actual notice where notice is required;
or
(b) Within 21 days of the date a person knew or should have
known of the decision where no notice is required.
(6)(a) Except as provided in paragraph (b) of this subsection,
the appeal periods described in subsections (3), (4) and (5) of
this section shall not exceed three years after the date of the
decision.
(b) If notice of a hearing or an administrative decision made
pursuant to ORS 197.195 or 197.763 is required but has not been
provided, the provisions of paragraph (a) of this subsection do
not apply.
(7)(a) Within 21 days after a notice of intent to appeal has
been filed with the { - board - } { + department + } under
subsection (1) of this section, any person described in paragraph
(b) of this subsection may intervene in and be made a party to
the review proceeding by filing a motion to intervene and by
paying a filing fee of $100.
(b) Persons who may intervene in and be made a party to the
review proceedings, as set forth in subsection (1) of this
section, are:
(A) The applicant who initiated the action before the local
government, special district or state agency; or
(B) Persons who appeared before the local government, special
district or state agency, orally or in writing.
(c) Failure to comply with the deadline or to pay the filing
fee set forth in paragraph (a) of this subsection shall result in
denial of a motion to intervene.
(8) If a state agency whose order, rule, ruling, policy or
other action is at issue is not a party to the proceeding, it may
file a brief with the { - board - } { + department + } as if
it were a party. The brief shall be due on the same date the
respondent's brief is due and shall be accompanied by a filing
fee of $100.
(9) A notice of intent to appeal a land use decision or limited
land use decision shall be filed not later than 21 days after the
date the decision sought to be reviewed becomes final. A notice
of intent to appeal plan and land use regulation amendments
processed pursuant to ORS 197.610 to 197.625 shall be filed not
later than 21 days after notice of the decision sought to be
reviewed is mailed or otherwise submitted to parties entitled to
notice under ORS 197.615. Failure to include a certificate of
mailing with the notice mailed under ORS 197.615 shall not render
the notice defective. Copies of the notice of intent to appeal
shall be served upon the local government, special district or
state agency and the applicant of record, if any, in the local
government, special district or state agency proceeding. The
notice shall be served and filed in the form and manner
prescribed by rule of the { - board - } { + department + }
and shall be accompanied by a filing fee of $200 and a deposit
for costs to be established by the { - board - }
{ + department + }. If a petition for review is not filed with
the { - board - } { + department + } as required in
subsections (10) and (11) of this section, the filing fee and
deposit shall be awarded to the local government, special
district or state agency as cost of preparation of the record.
(10)(a) Within 21 days after service of the notice of intent to
appeal, the local government, special district or state agency
shall transmit to the { - board - } { + department + } the
original or a certified copy of the entire record of the
proceeding under review. By stipulation of all parties to the
review proceeding the record may be shortened. The
{ - board - } { + department + } may require or permit
subsequent corrections to the record; however, the
{ - board - } { + department + } shall issue an order on a
motion objecting to the record within 60 days of receiving the
motion.
(b) Within 10 days after service of a notice of intent to
appeal, the { - board - } { + department + } shall provide
notice to the petitioner and the respondent of their option to
enter into mediation pursuant to ORS 197.860. Any person moving
to intervene shall be provided such notice within seven days
after a motion to intervene is filed. The notice required by this
paragraph shall be accompanied by a statement that mediation
information or assistance may be obtained from the department
{ - of Land Conservation and Development - } .
(11) A petition for review of the land use decision or limited
land use decision and supporting brief shall be filed with the
{ - board - } { + department + } as required by the
{ - board - } { + department + } under subsection (13) of this
section.
(12) The petition shall include a copy of the decision sought
to be reviewed and shall state:
(a) The facts that establish that the petitioner has standing.
(b) The date of the decision.
(c) The issues the petitioner seeks to have reviewed.
(13)(a) The { - board - } { + department + } shall adopt
rules establishing deadlines for filing petitions and briefs and
for oral argument.
(b) At any time subsequent to the filing of a notice of intent
and prior to the date set for filing the record, or, on appeal of
a decision under ORS 197.610 to 197.625, prior to the filing of
the respondent's brief, the local government or state agency may
withdraw its decision for purposes of reconsideration. If a
local government or state agency withdraws an order for purposes
of reconsideration, it shall, within such time as the
{ - board - } { + department + } may allow, affirm, modify or
reverse its decision. If the petitioner is dissatisfied with the
local government or agency action after withdrawal for purposes
of reconsideration, the petitioner may refile the notice of
intent and the review shall proceed upon the revised order. An
amended notice of intent shall not be required if the local
government or state agency, on reconsideration, affirms the order
or modifies the order with only minor changes.
(14) The { - board - } { + department + } shall issue a
final order within 77 days after the date of transmittal of the
record. If the order is not issued within 77 days the applicant
may apply in Marion County or the circuit court of the county
where the application was filed for a writ of mandamus to compel
the { - board - } { + department + } to issue a final order.
(15)(a) Upon entry of its final order the { - board - }
{ + department + } may, in its discretion, award costs to the
prevailing party including the cost of preparation of the record
if the prevailing party is the local government, special district
or state agency whose decision is under review. The deposit
required by subsection (9) of this section shall be applied to
any costs charged against the petitioner.
(b) The { - board - } { + department + } shall also award
reasonable attorney fees and expenses to the prevailing party
against any other party who the { - board - }
{ + department + } finds presented a position without probable
cause to believe the position was well-founded in law or on
factually supported information.
(16) Orders issued under this section may be enforced in
appropriate judicial proceedings.
(17)(a) The { - board - } { + department + } shall provide
for the publication of its orders that are of general public
interest in the form it deems best adapted for public
convenience. The publications shall constitute the official
reports of the { - board - } { + department + }.
(b) Any moneys collected or received from sales { - by the
board shall be paid into the Board Publications Account
established by ORS 197.832 - } { + of publications by the
department shall be deposited in the Oregon Natural Resources
Fund. Moneys deposited in the fund under this subsection are
continuously appropriated to the department for paying expenses
incurred by the department under this subsection + }.
(18) Except for any sums collected for publication of
{ - board - } { + department + } opinions, all fees collected
by the { - board - } { + department + } under this section
that are not awarded as costs shall be { - paid over to the
State Treasurer to be credited to the General Fund - }
{ + deposited in the Oregon Natural Resources Fund. Moneys
deposited in the fund under this subsection are continuously
appropriated to the department for the purpose of paying expenses
incurred under ORS 197.830 to 197.845 + }.
SECTION 1109. ORS 197.831 is amended to read:
197.831. In a proceeding before the { - Land Use Board of
Appeals - } { + Oregon Department of Natural Resources + } or
on judicial review from an order of the { - board - }
{ + department + } that involves an ordinance required to
contain clear and objective approval standards for a permit under
ORS 197.307 and 227.175, the local government imposing the
provisions of the ordinance shall demonstrate that the approval
standards are capable of being imposed only in a clear and
objective manner.
SECTION 1110. ORS 197.835 is amended to read:
197.835. (1) The { - Land Use Board of Appeals - }
{ + Oregon Department of Natural Resources + } shall review the
land use decision or limited land use decision and prepare a
final order affirming, reversing or remanding the land use
decision or limited land use decision. The { - board - }
{ + department + } shall adopt rules defining the circumstances
in which { - it - } { + the department + } will reverse
rather than remand a land use decision or limited land use
decision that is not affirmed.
(2)(a) Review of a decision under ORS 197.830 to 197.845 shall
be confined to the record.
(b) In the case of disputed allegations of standing,
unconstitutionality of the decision, ex parte contacts, actions
described in subsection (10)(a)(B) of this section or other
procedural irregularities not shown in the record that, if
proved, would warrant reversal or remand, the { - board - }
{ + department + } may take evidence and make findings of fact
on those allegations. The
{ - board - } { + department + } shall be bound by any
finding of fact of the local government, special district or
state agency for which there is substantial evidence in the whole
record.
(3) Issues shall be limited to those raised by any participant
before the local hearings body as provided by ORS 197.195 or
197.763, whichever is applicable.
(4) A petitioner may raise new issues to the { - board - }
{ + department + } if:
(a) The local government failed to list the applicable criteria
for a decision under ORS 197.195 (3)(c) or 197.763 (3)(b), in
which case a petitioner may raise new issues based upon
applicable criteria that were omitted from the notice. However,
the { - board - } { + department + } may refuse to allow new
issues to be raised if it finds that the issue could have been
raised before the local government; or
(b) The local government made a land use decision or limited
land use decision which is different from the proposal described
in the notice to such a degree that the notice of the proposed
action did not reasonably describe the local government's final
action.
(5) The { - board - } { + department + } shall reverse or
remand a land use decision not subject to an acknowledged
comprehensive plan and land use regulations if the decision does
not comply with the goals. The { - board - }
{ + department + } shall reverse or remand a land use decision
or limited land use decision subject to an acknowledged
comprehensive plan or land use regulation if the decision does
not comply with the goals and the { - Land Conservation and
Development Commission - } { + Oregon Natural Resources
Commission + } has issued an order under ORS 197.320 or adopted a
new or amended goal under ORS 197.245 requiring the local
government to apply the goals to the type of decision being
challenged.
(6) The { - board - } { + department + } shall reverse or
remand an amendment to a comprehensive plan if the amendment is
not in compliance with the goals.
(7) The { - board - } { + department + } shall reverse or
remand an amendment to a land use regulation or the adoption of a
new land use regulation if:
(a) The regulation is not in compliance with the comprehensive
plan; or
(b) The comprehensive plan does not contain specific policies
or other provisions which provide the basis for the regulation,
and the regulation is not in compliance with the statewide
planning goals.
(8) The { - board - } { + department + } shall reverse or
remand a decision involving the application of a plan or land use
regulation provision if the decision is not in compliance with
applicable provisions of the comprehensive plan or land use
regulations.
(9) In addition to the review under subsections (1) to (8) of
this section, the { - board - } { + department + } shall
reverse or remand the land use decision under review if the
{ - board - } { + department + } finds:
(a) The local government or special district:
(A) Exceeded its jurisdiction;
(B) Failed to follow the procedures applicable to the matter
before it in a manner that prejudiced the substantial rights of
the petitioner;
(C) Made a decision not supported by substantial evidence in
the whole record;
(D) Improperly construed the applicable law; or
(E) Made an unconstitutional decision; or
(b) The state agency made a decision that violated the goals.
(10)(a) The { - board - } { + department + } shall reverse
a local government decision and order the local government to
grant approval of an application for development denied by the
local government if the { - board - } { + department + }
finds:
(A) Based on the evidence in the record, that the local
government decision is outside the range of discretion allowed
the local government under its comprehensive plan and
implementing ordinances; or
(B) That the local government's action was for the purpose of
avoiding the requirements of ORS 215.427 or 227.178.
(b) If the { - board - } { + department + } does reverse
the decision and orders the local government to grant approval of
the application, the { - board - } { + department + } shall
award attorney fees to the applicant and against the local
government.
(11)(a) Whenever the findings, order and record are sufficient
to allow review, and to the extent possible consistent with the
time requirements of ORS 197.830 (14), the { - board - } { +
department + } shall decide all issues presented to it when
reversing or remanding a land use decision described in
subsections (2) to (9) of this section or limited land use
decision described in ORS 197.828 and 197.195.
(b) Whenever the findings are defective because of failure to
recite adequate facts or legal conclusions or failure to
adequately identify the standards or their relation to the facts,
but the parties identify relevant evidence in the record which
clearly supports the decision or a part of the decision, the
{ - board - } { + department + } shall affirm the decision or
the part of the decision supported by the record and remand the
remainder to the local government, with direction indicating
appropriate remedial action.
(12) The { - board - } { + department + } may reverse or
remand a land use decision under review due to ex parte contacts
or bias resulting from ex parte contacts with a member of the
decision-making body, only if the member of the decision-making
body did not comply with ORS 215.422 (3) or 227.180 (3),
whichever is applicable.
(13) Subsection (12) of this section does not apply to reverse
or remand of a land use decision due to ex parte contact or bias
resulting from ex parte contact with a hearings officer.
(14) The { - board - } { + department + } shall reverse or
remand a land use decision or limited land use decision which
violates a commission order issued under ORS 197.328.
(15) In cases in which a local government provides a
quasi-judicial land use hearing on a limited land use decision,
the requirements of subsections (12) and (13) of this section
apply.
(16) The { - board - } { + department + } may decide cases
before it by means of memorandum decisions and shall prepare full
opinions only in such cases as it deems proper.
SECTION 1110a. ORS 197.845 is amended to read:
197.845. (1) Upon application of the petitioner, the
{ - board - } { + Oregon Department of Natural Resources + }
may grant a stay of a land use decision or limited land use
decision under review if the petitioner demonstrates:
(a) A colorable claim of error in the land use decision or
limited land use decision under review; and
(b) That the petitioner will suffer irreparable injury if the
stay is not granted.
(2) If the { - board - } { + department + } grants a stay
of a quasi-judicial land use decision or limited land use
decision approving a specific development of land, it shall
require the petitioner requesting the stay to give an undertaking
in the amount of $5,000. The undertaking shall be in addition to
the filing fee and deposit for costs required under ORS 197.830
(9). The { - board - } { + department + } may impose other
reasonable conditions such as requiring the petitioner to file
all documents necessary to bring the matter to issue within
specified reasonable periods of time.
(3) If the { - board - } { + department + } affirms a
quasi-judicial land use decision or limited land use decision for
which a stay was granted under subsections (1) and (2) of this
section, the { - board - } { + department + } shall award
reasonable attorney fees and actual damages resulting from the
stay to the person who requested the land use decision or limited
land use decision from the local government, special district or
state agency, against the person requesting the stay in an amount
not to exceed the amount of the undertaking.
(4) The { - board - } { + department + } shall limit the
effect of a stay of a legislative land use decision to the
geographic area or to particular provisions of the legislative
decision for which the petitioner has demonstrated a colorable
claim of error and irreparable injury under subsection (1) of
this section. The
{ - board - } { + department + } may impose reasonable
conditions on a stay of a legislative decision, such as the
giving of a bond or other undertaking or a requirement that the
petitioner file all documents necessary to bring the matter to
issue within a specified reasonable time period.
SECTION 1111. ORS 197.850 is amended to read:
197.850. (1) Any party to a proceeding before the { - Land
Use Board of Appeals - } { + Oregon Department of Natural
Resources + } under ORS 197.830 to 197.845 may seek judicial
review of a final order issued in those proceedings.
(2) Notwithstanding the provisions of ORS 183.480 to 183.540,
judicial review of orders issued under ORS 197.830 to 197.845 is
solely as provided in this section.
(3)(a) Jurisdiction for judicial review of proceedings under
ORS 197.830 to 197.845 is conferred upon the Court of Appeals.
Proceedings for judicial review are instituted by filing a
petition in the Court of Appeals. The petition must be filed
within 21 days following the date the { - board - }
{ + department + } delivered or mailed the order upon which the
petition is based.
(b) Filing of the petition, as set forth in paragraph (a) of
this subsection, and service of a petition on all persons
identified in the petition as adverse parties of record in the
{ - board - } { + department + } proceeding is jurisdictional
and may not be waived or extended.
(4) The petition must state the nature of the order the
petitioner desires reviewed. Copies of the petition must be
served by first class, registered or certified mail on the
{ - board - } { + department + } and all other parties of
record in the { - board - } { + department + } proceeding.
(5) Within seven days after service of the petition, the
{ - board - } { + department + } shall transmit to the court
the original or a certified copy of the entire record of the
proceeding under review, but, by stipulation of all parties to
the review proceeding, the record may be shortened. The court may
tax a party that unreasonably refuses to stipulate to limit the
record for the additional costs. The court may require or permit
subsequent corrections or additions to the record when deemed
desirable. Except as specifically provided in this subsection,
the court may not tax the cost of the record to the petitioner or
any intervening party. However, the court may tax such costs and
the cost of transcription of record to a party filing a frivolous
petition for judicial review.
(6) Petitions and briefs must be filed within time periods and
in a manner established by the Court of Appeals by rule.
(7)(a) The court shall hear oral argument within 49 days of the
date of transmittal of the record.
(b) The court may hear oral argument more than 49 days from the
date of transmittal of the record provided the court determines
that the ends of justice served by holding oral argument on a
later day outweigh the best interests of the public and the
parties. The court shall not hold oral argument more than 49 days
from the date of transmittal of the record because of general
congestion of the court calendar or lack of diligent preparation
or attention to the case by any member of the court or any party.
(c) The court shall set forth in writing a determination to
hear oral argument more than 49 days from the date the record is
transmitted, together with the reasons for its determination, and
shall provide a copy to the parties. The court shall schedule
oral argument as soon as practicable thereafter.
(d) In making a determination under paragraph (b) of this
subsection, the court shall consider:
(A) Whether the case is so unusual or complex, due to the
number of parties or the existence of novel questions of law,
that 49 days is an unreasonable amount of time for the parties to
brief the case and for the court to prepare for oral argument;
and
(B) Whether the failure to hold oral argument at a later date
likely would result in a miscarriage of justice.
(8) Judicial review of an order issued under ORS 197.830 to
197.845 shall be confined to the record. The court shall not
substitute its judgment for that of the { - board - }
{ + department + } as to any issue of fact.
(9) The court may affirm, reverse or remand the order. The
court shall reverse or remand the order only if it finds:
(a) The order to be unlawful in substance or procedure, but
error in procedure is not cause for reversal or remand unless the
court finds that substantial rights of the petitioner were
prejudiced thereby;
(b) The order to be unconstitutional; or
(c) The order is not supported by substantial evidence in the
whole record as to facts found by the { - board - }
{ + department + } under ORS 197.835 (2).
(10) The Court of Appeals shall issue a final order on the
petition for judicial review with the greatest possible
expediency.
(11) If the order of the { - board - } { + department + }
is remanded by the Court of Appeals or the Supreme Court, the
{ - board - } { + department + } shall respond to the court's
appellate judgment within 30 days.
(12) A party must file with the { - board - }
{ + department + } an undertaking with one or more sureties
insuring that the party will pay all costs, disbursements and
attorney fees awarded against the party by the Court of Appeals
if:
(a) The party appealed a decision of the { - board - }
{ + department + } to the Court of Appeals; and
(b) In making the decision being appealed to the Court of
Appeals, the { - board - } { + department + } awarded
attorney fees and expenses against that party under ORS 197.830
(15)(b).
(13) Upon entry of its final order, the court shall award
attorney fees and expenses to a party who prevails on a claim
that an approval condition imposed by a local government on an
application for a permit pursuant to ORS 215.416 or 227.175 is
unconstitutional under section 18, Article I, Oregon
Constitution, or the Fifth Amendment to the United States
Constitution.
(14) The undertaking required in subsection (12) of this
section must be filed with the { - board - }
{ + department + } and served on the opposing parties within 10
days after the date the petition was filed with the Court of
Appeals.
SECTION 1111a. ORS 197.860 is amended to read:
197.860. All parties to an appeal may at any time prior to a
final decision by the Court of Appeals under ORS 197.855
stipulate that the appeal proceeding be stayed for any period of
time agreeable to the parties and the { - board - }
{ + Oregon Department of Natural Resources + } or court to allow
the parties to enter mediation. Following mediation, the
{ - board - } { + department + } or the court may, at the
request of the parties, dismiss the appeal or remand the decision
to the { - board - } { + department + } or the local
government with specific instructions for entry of a final
decision on remand. If the parties fail to agree to a stipulation
for remand or dismissal through mediation within the time the
appeal is stayed, the appeal shall proceed with such reasonable
extension of appeal deadlines as the { - board - }
{ + department + } or Court of Appeals considers appropriate.
SECTION 1112. ORS 221.034 is amended to read:
221.034. (1) As used in this section:
(a) 'Neighboring city' means a city that has any part of its
territory situated within three miles of the area proposed to be
incorporated.
(b) 'Rural unincorporated community' means a settlement with a
boundary identified in an acknowledged comprehensive plan of a
county and that:
(A) Is made up primarily of lands subject to an exception to
statewide planning goals related to agricultural lands or
forestlands;
(B) Either was identified in the acknowledged comprehensive
plan of a county as a 'rural community,' 'service center, ' '
rural center,' 'resort community' or similar term before October
28, 1994, or is listed in the Department of Land Conservation and
Development's 'Survey of Oregon Unincorporated Communities'
(January 30, 1997);
(C) Lies outside the urban growth boundary of a city or a
metropolitan service district; and
(D) Is not incorporated as a city.
(c) 'Urban reserve' has the meaning given that term in ORS
195.137.
(d) 'Urban services' has the meaning given that term in ORS
195.065.
(2) When any of the area proposed to be incorporated as a city
lies within an urbanized area, but outside the urban growth
boundary of a city or a metropolitan service district:
(a) The area proposed to be incorporated must also be located
entirely within a designated rural unincorporated community and
contiguous lands subject to an exception to statewide planning
goals related to agricultural lands or forestlands.
(b) The petition required by ORS 221.031 must be accompanied by
an affidavit, signed by a chief petitioner, stating that:
(A) Ten percent of the electors registered within the area
proposed for incorporation favor the incorporation; and
(B) The chief petitioners have engaged the neighboring cities
in discussions concerning the effects of the proposed
incorporation, including discussions specifically relating to how
those cities and the proposed city will allow for expansion of
urban growth boundaries and, where applicable, for creation or
expansion of urban reserves.
(c) The economic feasibility statement required by ORS 221.035
must:
(A) Indicate that the proposed city must plan for and provide
urban services in a cost-effective manner at the minimum level
adequate to meet current needs and projected growth;
(B) Contain a proposed permanent rate limit for operating taxes
to provide revenues for urban services; and
(C) Indicate that the proposed city must plan for residential
development at or above the same urban density planned for an
existing city, within the county, that has a similar geographic
area within the existing city's urban growth boundary or, for a
proposed city within three miles of Metro's boundary, a minimum
urban residential density in accordance with a statewide planning
goal and rules pertaining to needed housing for cities within
Metro's urban growth boundary.
(d) If the proposed city will be required to complete a public
facility plan and a transportation systems plan, the proposed
city must demonstrate the ability to provide urban services to
meet current needs and projected growth. The proposed city may
meet this requirement, in whole or in part, by establishing an
agreement in principle with a city or a district, as defined in
ORS 195.060, to provide the urban services.
(3) If the governing body of a neighboring city determines that
the proposed incorporation adversely affects that city, the
governing body may ask the county court with which the petition
for incorporation was filed to reject the petition and terminate
the incorporation proceedings. The objections by the city to the
incorporation shall be heard and considered by the county court
at a public hearing held under ORS 221.040.
(4) If, at the hearing held under ORS 221.040, the county court
finds that any of the requirements of subsection (2) of this
section are not met or that the proposed incorporation will
adversely affect a neighboring city, the county court shall
provide by order for the termination of the incorporation
proceedings. The order shall contain the findings of the county
court relating to the proposed incorporation and the reasons for
terminating the incorporation proceedings.
(5) In the manner provided in ORS 197.830 to 197.845, the
{ - Land Use Board of Appeals - } { + Oregon Department of
Natural Resources + } shall review, upon the petition of a party
to the incorporation proceedings, the order of the county court
under subsection (4) of this section.
{ +
STATE DEPARTMENT OF GEOLOGY AND MINERAL INDUSTRIES + }
{ +
(Abolishment and Transfer of + }
{ +
Duties, Functions and Powers) + }
SECTION 1113. { + (1) The State Department of Geology and
Mineral Industries is abolished. On the operative date of this
section, the tenure of office of the governing board of the State
Department of Geology and Mineral Industries and of the State
Geologist ceases.
(2) All the duties, functions and powers of the State
Department of Geology and Mineral Industries are imposed upon,
transferred to and vested in the Oregon Department of Natural
Resources. + }
{ +
(Transfer of Records, Property and Employees) + }
SECTION 1114. { + (1) The governing board of the State
Department of Geology and Mineral Industries and the State
Geologist shall:
(a) Deliver to the Oregon Department of Natural Resources all
records and property within the jurisdiction of the governing
board or the State Geologist that relate to the duties, functions
and powers transferred by section 1113 of this 2011 Act; and
(b) Transfer to the Oregon Department of Natural Resources
those employees engaged primarily in the exercise of the duties,
functions and powers transferred by section 1113 of this 2011
Act.
(2) The Director of the Oregon Department of Natural Resources
shall take possession of the records and property, and shall take
charge of the employees and employ them in the exercise of the
duties, functions and powers transferred by section 1113 of this
2011 Act, without reduction of compensation but subject to change
or termination of employment or compensation as provided by law.
(3) The Governor shall resolve any dispute between the State
Department of Geology and Mineral Industries and the Oregon
Department of Natural Resources, or the State Geologist and the
Oregon Department of Natural Resources, relating to transfers of
records, property and employees under this section, and the
Governor's decision is final. + }
{ +
(Transfer of Unexpended Revenues) + }
SECTION 1115. { + (1) The unexpended balances of amounts
authorized to be expended by the State Department of Geology and
Mineral Industries for the biennium beginning July 1, 2011, from
revenues dedicated, continuously appropriated, appropriated or
otherwise made available for the purpose of administering and
enforcing the duties, functions and powers transferred by section
1113 of this 2011 Act are transferred to and are available for
expenditure by the Oregon Department of Natural Resources for the
biennium beginning July 1, 2011, for the purpose of administering
and enforcing the duties, functions and powers transferred by
section 1113 of this 2011 Act.
(2) The expenditure classifications, if any, established by
Acts authorizing or limiting expenditures by the State Department
of Geology and Mineral Industries remain applicable to
expenditures by the Oregon Department of Natural Resources under
this section. + }
{ +
(Action, Proceeding and Prosecution) + }
SECTION 1116. { + The transfer of duties, functions and powers
to the Oregon Department of Natural Resources by section 1113 of
this 2011 Act does not affect any action, proceeding or
prosecution involving or with respect to such duties, functions
and powers begun before and pending at the time of the transfer,
except that the Oregon Department of Natural Resources is
substituted for the State Department of Geology and Mineral
Industries in the action, proceeding or prosecution. + }
{ +
(Liability, Duty and Obligation) + }
SECTION 1117. { + (1) Nothing in sections 1113 to 1119 of this
2011 Act, the amendments to statutes by sections 28 to 411, 422
to 576, 585 to 901, 912 to 1090, 1099 to 1112, 1122 to 1257, 1269
to 1749k, 1758 to 1780, 1791 to 2081 and 2091 to 2160 of this
2011 Act or the repeal of ORS 516.020, 516.080, 516.090, 516.120,
516.130, 516.133, 517.735 or 522.275 by section 2161 of this 2011
Act relieves a person of a liability, duty or obligation accruing
under or with respect to the duties, functions and powers
transferred by section 1113 of this 2011 Act. The Oregon
Department of Natural Resources may undertake the collection or
enforcement of any such liability, duty or obligation.
(2) The rights and obligations of the State Department of
Geology and Mineral Industries legally incurred under contracts,
leases and business transactions executed, entered into or begun
before the operative date of section 1113 of this 2011 Act are
transferred to the Oregon Department of Natural Resources. For
the purpose of succession to these rights and obligations, the
Oregon Department of Natural Resources is a continuation of the
State Department of Geology and Mineral Industries and not a new
authority. + }
{ +
(Rules) + }
SECTION 1118. { + (1) Notwithstanding the transfer of duties,
functions and powers by section 1113 of this 2011 Act, the rules
of the State Department of Geology and Mineral Industries in
effect on the operative date of section 1113 of this 2011 Act
continue in effect until superseded or repealed by rules of the
Oregon Department of Natural Resources.
(2) References in rules of the State Department of Geology and
Mineral Industries to the State Department of Geology and Mineral
Industries, or to an officer or employee of the State Department
of Geology and Mineral Industries, are considered to be
references to the Oregon Department of Natural Resources or to an
officer or employee of the Oregon Department of Natural
Resources. + }
{ +
(References) + }
SECTION 1119. { + Whenever, in any uncodified law or
resolution of the Legislative Assembly or in any rule, document,
record or proceeding authorized by the Legislative Assembly,
reference is made to the State Department of Geology and Mineral
Industries, or to an officer or employee of the State Department
of Geology and Mineral Industries, the reference is considered to
be a reference to the Oregon Department of Natural Resources or
to an officer or employee of the Oregon Department of Natural
Resources. + }
{ +
(Agency Name Change) + }
SECTION 1120. { + (1) For the purpose of harmonizing and
clarifying statutory law, the Legislative Counsel may substitute
for words designating the 'State Department of Geology and
Mineral Industries,' wherever they occur in statutory law, words
designating the 'Oregon Department of Natural Resources. '
(2) For the purpose of harmonizing and clarifying statutory
law, the Legislative Counsel may substitute for words designating
the 'State Geologist,' wherever they occur in statutory law,
words designating the 'Director of the Oregon Department of
Natural Resources.' + }
{ +
(Account Name Change) + }
SECTION 1121. { + For the purpose of harmonizing and
clarifying statutory law, the Legislative Counsel may substitute
for words designating the 'Geology and Mineral Industries
Account, ' wherever they occur in statutory law, words
designating the ' Oregon Natural Resources Fund.' + }
{ +
(Conforming Amendments) + }
SECTION 1122. ORS 274.800 is amended to read:
274.800. Sufficient bonding requirements, as determined by the
{ - Department of Geology and Mineral Industries - }
{ + Oregon Department of Natural Resources + }, shall be
specified to secure to the State of Oregon performance and the
faithful compliance by the lessee with the terms of the lease,
and further to secure adjacent landowners and the public
generally as to all proper claims for damages arising from
operations thereunder.
SECTION 1123. ORS 455.446 is amended to read:
455.446. (1)(a) New essential facilities described in ORS
455.447 (1)(a)(A), (B) and (G) and new special occupancy
structures described in ORS 455.447 (1)(e)(B), (C) and (E) may
not be constructed in the tsunami inundation zone established
under paragraph (c) of this subsection. The provisions of this
paragraph apply to buildings with a capacity greater than 50
individuals for every public, private or parochial school through
secondary level and child care centers.
(b) The { - State Department of Geology and Mineral
Industries - } { + Oregon Department of Natural Resources + }
shall establish the parameters of the area of expected tsunami
inundation based on scientific evidence that may include geologic
field data and tsunami modeling.
(c) The { - governing board of the State Department of
Geology and Mineral Industries - } { + Director of the Oregon
Department of Natural Resources + }, by rule, shall determine the
tsunami inundation zone based on the parameters established by
the department. The
{ - board - } { + director + } shall adopt the zone as
determined by the department under paragraph (b) of this
subsection except as modified by the { - board - }
{ + director + } under paragraph (d) of this subsection.
(d) The { - board - } { + director + } may grant exceptions
to restrictions in the tsunami inundation zone established under
paragraph (c) of this subsection after public hearing and a
determination by the
{ - board - } { + director + } that the applicant has
demonstrated that the safety of building occupants will be
ensured to the maximum reasonable extent:
(A) By addressing the relative risks within the zone.
(B) By balancing competing interests and other considerations.
(C) By considering mitigative construction strategies.
(D) By considering mitigative terrain modification.
(e) The provisions of paragraph (a) of this subsection do not
apply:
(A) To fire or police stations where there is a need for
strategic location; and
(B) To public schools if there is a need for the school to be
within the boundaries of a school district and fulfilling that
need cannot otherwise be accomplished.
(f) All materials supporting an application for an exception to
the tsunami inundation zone are public records under ORS 192.005
to 192.170 and must be retained in the library of the department
for periods of time determined by { - its governing board - }
{ + the director + }.
(g) The applicant for an exception to the tsunami inundation
zone established under paragraph (c) of this subsection shall pay
any costs for department review of the application and the costs,
if any, of the approval process.
(2) The definitions in ORS 455.447 apply to this section.
(3) The provisions of this section do not apply to
water-dependent and water-related facilities, including but not
limited to docks, wharves, piers and marinas.
(4) Decisions made under this section are not land use
decisions under ORS 197.015 { - (10) - } { + (6) + }.
SECTION 1124. ORS 455.447 is amended to read:
455.447. (1) As used in this section, unless the context
requires otherwise:
(a) 'Essential facility' means:
(A) Hospitals and other medical facilities having surgery and
emergency treatment areas;
(B) Fire and police stations;
(C) Tanks or other structures containing, housing or supporting
water or fire-suppression materials or equipment required for the
protection of essential or hazardous facilities or special
occupancy structures;
(D) Emergency vehicle shelters and garages;
(E) Structures and equipment in emergency-preparedness centers;
(F) Standby power generating equipment for essential
facilities; and
(G) Structures and equipment in government communication
centers and other facilities required for emergency response.
(b) 'Hazardous facility' means structures housing, supporting
or containing sufficient quantities of toxic or explosive
substances to be of danger to the safety of the public if
released.
(c) 'Major structure' means a building over six stories in
height with an aggregate floor area of 60,000 square feet or
more, every building over 10 stories in height and parking
structures as determined by Department of Consumer and Business
Services rule.
(d) 'Seismic hazard' means a geologic condition that is a
potential danger to life and property that includes but is not
limited to earthquake, landslide, liquefaction, tsunami
inundation, fault displacement, and subsidence.
(e) 'Special occupancy structure' means:
(A) Covered structures whose primary occupancy is public
assembly with a capacity greater than 300 persons;
(B) Buildings with a capacity greater than 250 individuals for
every public, private or parochial school through secondary level
or child care centers;
(C) Buildings for colleges or adult education schools with a
capacity greater than 500 persons;
(D) Medical facilities with 50 or more resident, incapacitated
patients not included in subparagraphs (A) to (C) of this
paragraph;
(E) Jails and detention facilities; and
(F) All structures and occupancies with a capacity greater than
5,000 persons.
(2) The Department of Consumer and Business Services shall
consult with the Seismic Safety Policy Advisory Commission and
the
{ - State Department of Geology and Mineral Industries - }
{ + Oregon Department of Natural Resources + } prior to adopting
rules. Thereafter, the Department of Consumer and Business
Services may adopt rules as set forth in ORS 183.325 to 183.410
to amend the state building code to:
(a) Require new building sites for essential facilities,
hazardous facilities, major structures and special occupancy
structures to be evaluated on a site specific basis for
vulnerability to seismic geologic hazards.
(b) Require a program for the installation of strong motions
accelerographs in or near selected major buildings.
(c) Provide for the review of geologic and engineering reports
for seismic design of new buildings of large size, high occupancy
or critical use.
(d) Provide for filing of noninterpretive seismic data from
site evaluation in a manner accessible to the public.
(3) For the purpose of defraying the cost of applying the
regulations in subsection (2) of this section, there is hereby
imposed a surcharge in the amount of one percent of the total
fees collected under the structural and mechanical specialty
codes for essential facilities, hazardous facilities, major
structures and special occupancy structures, which fees shall be
retained by the jurisdiction enforcing the particular specialty
code as provided in ORS 455.150 or enforcing a building
inspection program under ORS 455.148.
(4) Developers of new essential facilities, hazardous
facilities and major structures described in subsection
(1)(a)(E), (b) and (c) of this section and new special occupancy
structures described in subsection (1)(e)(A), (D) and (F) of this
section that are located in an identified tsunami inundation zone
shall consult with the { - State Department of Geology and
Mineral Industries - } { + Oregon Department of Natural
Resources + } for assistance in determining the impact of
possible tsunamis on the proposed development and for assistance
in preparing methods to mitigate risk at the site of a potential
tsunami. Consultation shall take place prior to submittal of
design plans to the building official for final approval.
SECTION 1125. ORS 516.010 is amended to read:
516.010. As used in this chapter:
{ - (1) 'Board' means the governing board of the State
Department of Geology and Mineral Industries established pursuant
to ORS 516.080. - }
{ - (2) 'Department' means the State Department of Geology
and Mineral Industries established pursuant to ORS 516.020. - }
{ - (3) - } { + (1) + } 'Mine' includes all mineral-bearing
properties of whatever kind and character, whether underground,
quarry, pit, well, spring or other source from which any mineral
substance is obtained.
{ - (4) - } { + (2) + } 'Mineral' includes any and all
mineral products, metallic and nonmetallic, solid, liquid or
gaseous, and mineral waters of all kinds.
{ - (5) - } { + (3) + } 'Mineral industries' includes all
enterprises engaged in developing and exploiting the natural
substances of the earth.
{ - (6) - } { + (4) + } 'Geologic hazard' means a geologic
condition that is a potential danger to life and property which
includes but is not limited to earthquake, landslide, flooding,
erosion, expansive soil, fault displacement, volcanic eruption
and subsidence.
{ - (7) - } { + (5) + } 'Geology' means the study of the
earth, and in particular the study of the origin, history and
topographic form of rocks, ores and minerals, either under the
ground or upon the surface, and their alteration by surface
agencies, such as wind, water, ice and other agencies, and the
economics of their use.
SECTION 1126. ORS 516.030 is amended to read:
516.030. { - The State Department of Geology and Mineral
Industries shall: - } { + For purposes related to the
regulation of this state's mines, mineral industries and geologic
hazards, the Oregon Department of Natural Resources shall: + }
(1) Initiate and conduct studies and surveys of the geological
and mineral resources of the state and their commercial utility.
(2) Conduct as a continuing project a geological survey of
Oregon, including quadrangle geologic mapping, either as a
department undertaking or jointly with federal or other agencies.
(3) Initiate, carry out or administer studies and programs that
will, in cooperation with universities, federal, state and local
government agencies, reduce the loss of life and property by
understanding and mitigating geologic hazards. These studies and
programs may include but need not be limited to:
(a) Statewide hazard assessment, including identification and
mapping of geologic hazards, estimation of their potential
consequences and likelihood of occurrence and monitoring and
assessment of potentially hazardous geologic activity;
(b) Studies of paleoseismicity including but not limited to
providing evidence of whether prehistoric subduction zone and
crustal earthquakes have occurred in Oregon;
(c) Operation of a state seismic network in cooperation with
universities or federal agencies or both through the strategic
placement of instrumentation to monitor earthquake activity as it
occurs; and
(d) Operation of a state geodetic network through the
monitoring and periodic survey of markers in order to detect
modern deformation of the earth's crust and the subsequent
buildup of stress.
(4) Consider and study kindred scientific and economic
questions in the field of geology and mining that are deemed of
value to the people of Oregon.
(5) Cooperate with federal or other agencies for the
performance of work in Oregon deemed of value to the state and of
advantage to its people, under rules, terms and conditions to be
arranged between the { - governing board of the State
Department of Geology and Mineral Industries - } { + Director
of the Oregon Department of Natural Resources + } and such
agencies. But in no case shall the cost to the department be in
excess of the amount appropriated therefor, and the results of
any joint undertakings shall be made available without
restrictions to this department.
(6) Serve as a bureau of information and advisory services
concerning geologic resources and hazards, including maintenance
of a library, a public education program and a geologic database;
review of functions; expert advice to federal, state and local
government agencies; and operation of a clearinghouse for
post-hazard event earth science investigations. The department
shall provide technical assistance to local governments on
aggregate mining and reclamation during preparation and amendment
of comprehensive plans and land use regulations.
(7) Serve as a bureau of information concerning Oregon mineral
resources, mineral industries and geology, conduct a mineral
survey of the state, and catalog each and every mineral
occurrence and deposit, metallic and nonmetallic, together with
its location, production, method of working, name of owner or
agent, and other detailed information capable of being tabulated
and published in composite form for the use, guidance and benefit
of the mineral industry of the state and of the people in general
and deemed necessary in compiling mineral statistics of the
state.
{ + (8) Publish and distribute information concerning mineral
resources, mineral industries, geology, geological resources and
hazards, all notes, charts and maps created by the department
during the department's geological investigations and any
scientific, economic and tourism information related to geology
and mineral industries. + }
{ - (8) - } { + (9) + } Collect a library of literature
describing the geology and mineral deposits, metallic and
nonmetallic, of Oregon.
{ - (9) - } { + (10) + } Make qualitative examinations of
rocks, mineral samples and specimens.
{ - (10) - } { + (11) + } Study minerals and ores,
additional uses for the state's minerals, and explore the
possibilities for using improved treatment, processes, mining
methods and reclamation techniques for regulated mines and
abandoned mined lands.
{ - (11) - } { + (12) + } Establish in the department or in
cooperation with universities and other organizations a
repository for drill cores and samples considered by the
department to be of long term use in developing information.
SECTION 1127. ORS 516.035 is amended to read:
516.035. { - The State Department of Geology and Mineral
Industries may: - } { + For purposes related to the regulation
of this state's mines, mineral industries and geologic hazards,
the Oregon Department of Natural Resources may: + }
(1) Make or have made qualitative and quantitative
determinations of ores and minerals that are submitted for such
purpose and that are from within the State of Oregon. The
department shall mail to the sender of such ores or minerals the
results of such determination as soon as practicable after making
such determination. Such services shall be performed by the
department at the request of a member of the general public at a
reasonable charge.
(2) Perform geological surveys or analyses at the request of
any state agency if department funding allows undertaking such
surveys or analyses and may make reasonable charges for these
services.
(3) Collect and exhibit specimens, samples and photographs,
models and drawings of appliances in the mines, mills and
metallurgical plants of Oregon.
(4) Enter into contracts or agreements with the federal
government or any agency thereof, pursuant to which the
department shall operate or act as the agent of the federal
government in the operation of a mineral assay service or similar
analytical service, the cost of which is to be reimbursed by the
federal government.
(5) Establish, equip and operate a geochemical laboratory which
may:
(a) Make geochemical determinations at the request of any
department, institution or other agency of the state, without any
charge in excess of the actual cost thereof.
(b) Make other geochemical determinations at a reasonable
charge in excess of the actual cost thereof.
SECTION 1128. ORS 516.070 is amended to read:
516.070. { - (1) There is established in the General Fund of
the State Treasury an account to be known as the Geology and
Mineral Industries Account. All moneys received by the State
Department of Geology and Mineral Industries shall be paid over
to the State Treasurer and by the State Treasurer deposited in
the General Fund to the credit of the account. All moneys within
the account are continuously appropriated for the use of the
department in carrying out its lawful functions. - }
{ - (2) - } { + (1) + } The Federal Locatable Mineral
Royalties Subaccount is established within the { - Geology and
Mineral Industries Account. Notwithstanding subsection (1) of
this section, - } { + Oregon Natural Resources Fund. + } All
moneys received from the federal government by the State of
Oregon as the state's distributive share of the amounts collected
for royalties for locatable minerals shall be credited to the
subaccount. All moneys in the Federal Locatable Mineral Royalties
Subaccount are continuously appropriated to the
{ - State Department of Geology and Mineral Industries - }
{ + Oregon Department of Natural Resources + } to conduct
investigations of new mineral resources and to carry out the
provisions of ORS 517.840 (1)(f).
{ - (3) - } { + (2) + } The State Treasurer may invest and
reinvest the moneys in the Federal Locatable Mineral Royalties
Subaccount as provided in ORS 293.701 to 293.820. Interest from
the moneys deposited in the subaccount and earnings from
investment of the moneys in the subaccount shall be credited to
the subaccount.
{ - (4) - } { + (3) + } The Mined Land Regulation and
Reclamation Program Subaccount is established within the
{ - Geology and Mineral Industries Account - } { + Oregon
Natural Resources Fund + }. Notwithstanding subsection (1) of
this section, all moneys received by the { - State Department
of Geology and Mineral Industries - } { + department + } from
fees assessed pursuant to ORS 517.800 shall be credited to the
subaccount. All moneys in the subaccount are continuously
appropriated to the department for the purpose of administering
ORS 517.702 to 517.951.
SECTION 1129. ORS 516.100 is amended to read:
516.100. (1) The { - State Department of Geology and Mineral
Industries - } { + Oregon Department of Natural Resources + }
shall have prepared, printed and published reports, pamphlets,
charts and maps, embracing the matters addressed in ORS 516.030
and ORS chapters 517, 520 and 522. All maps, charts, special
bulletins and other publications shall be for public
distribution, but the department may make a reasonable charge to
cover publication and distribution costs.
(2)(a) When a report embodies results of surveys or studies of
economic importance, no information of any kind concerning the
contents of such report shall be given out prior to publication,
if such prior information could place the recipient in a
preferential position as regards its use.
(b) Notwithstanding the provisions of paragraph (a) of this
subsection, if an investigation of a mineral property or geologic
hazard within the state is made by an employee of the department
at the request of either the owner or a person in control of such
property, results of the investigation shall be conveyed to the
owner or person in control prior to the publication of a report
of such results. After they have been conveyed to the owner or
person, the results shall be open to public inspection prior to
their publication.
SECTION 1130. ORS 516.135 is amended to read:
516.135. (1) In carrying out its duties related to mineral
resources, mineral industries and geology, the { - State
Department of Geology and Mineral Industries - } { + Oregon
Department of Natural Resources + } shall act in a manner that is
consistent with the goal set forth in ORS 468B.155.
(2) In order to assist in the development of a statewide
repository of information about Oregon's ground water resource,
the department shall provide any information, acquired by the
department in carrying out its statutory duties, that is related
to ground water quality to the centralized repository established
pursuant to ORS 468B.167.
SECTION 1131. ORS 517.705 is amended to read:
517.705. (1) Any person engaging in onshore exploration that
disturbs more than one surface acre or involves drilling to
greater than 50 feet shall obtain an exploration permit. Prior to
receiving an exploration permit, an applicant shall submit a
permit application on a form provided by the { - State
Department of Geology and Mineral Industries - } { + Oregon
Department of Natural Resources + }. Information required shall
include the information necessary to assess impacts of the
proposed exploration, including but not limited to:
(a) The name and address of the surface owner and mineral
owner.
(b) The names and addresses of the persons conducting the
exploration.
(c) The name and address of any designated agent.
(d) A brief description of the exploration activities,
including but not limited to:
(A) The amount of road to be constructed;
(B) The number, depth and location of proposed drill holes;
(C) The number, depth and location of proposed monitoring
wells; and
(D) The number, length, width and depth of exploration
trenches.
(e) Provisions for the reclamation of surface disturbance
caused by exploration activities.
(f) Exploration drill hole or monitoring well abandonment
procedures, including but not limited to:
(A) The capping of all holes;
(B) The plugging of any hole producing surface flow; and
(C) Appropriate sealing for any holes which have encountered
aquifers.
(g) A map with the location of the proposed exploration and
delineation of exploration boundaries.
(2) Any production records, mineral assessments or trade
secrets submitted as part of the application under subsection (1)
of this section shall be confidential.
SECTION 1132. ORS 517.710 is amended to read:
517.710. (1) A fee { - , - } not to exceed $400 shall
accompany the application described in ORS 517.705. The
{ - State Department of Geology and Mineral Industries - }
{ + Oregon Department of Natural Resources + } may renew the
permit annually on the anniversary date of the issuance of the
permit, provided the person conducting the exploration is not in
violation of any provision of ORS 517.702 to 517.755, 517.790,
517.810, 517.910 and 517.920 and pays a renewal fee not to exceed
$300.
(2) A permit shall be subject to suspension and revocation as
provided by ORS 517.702 to 517.755, 517.790, 517.810, 517.910 and
517.920.
SECTION 1133. ORS 517.725 is amended to read:
517.725. (1) The { - State Department of Geology and Mineral
Industries - } { + Oregon Department of Natural Resources + }
may inspect the exploration site prior to initiation of
exploration to review the existing environmental conditions,
assess impacts of the proposed exploration and establish the
amount of financial assurance required.
(2) The department may inspect lands not later than 60 days
following notification by the person conducting the exploration
that reclamation is complete. If the department determines that
the reclamation complies with the approved reclamation plan,
including establishment of vegetation, the department may release
the bond or other security required by ORS 517.810 within 60 days
of that determination.
(3) The department is authorized to inspect any ongoing
exploration site in order to establish compliance with ORS
517.702 to 517.755, 517.790, 517.810, 517.910 and 517.920.
SECTION 1134. ORS 517.730 is amended to read:
517.730. (1) { - The State Department of Geology and Mineral
Industries shall consult with the Water Resources Department on
the development of rules covering - } { + In accordance with
ORS chapter 183, the Oregon Department of Natural Resources shall
adopt rules that govern + } drill hole or monitoring well
abandonment procedures, including procedures for the abandonment
of holes and wells for which no exploration permit is required in
ORS 517.705.
(2) Nothing in ORS 517.702 to 517.755, 517.790, 517.810,
517.910 and 517.920 prohibits the conversion of exploration drill
holes or monitoring wells to water wells, provided that the
conversion conforms to the standards and rules of the { - Water
Resources - } department.
SECTION 1135. ORS 517.740 is amended to read:
517.740. { - In consultation with the Environmental Quality
Commission, Water Resources Commission and the State Land Board,
the State Department of Geology and Mineral Industries governing
board - } { + After consulting with the Environmental Quality
Commission and the State Land Board, the Director of the Oregon
Department of Natural Resources + } shall adopt rules to carry
out the provisions of ORS 517.702 to 517.755, 517.790, 517.810,
517.910 and 517.920.
SECTION 1136. 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) - } { + (1) + } '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) - } { + (2) + } '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.
{ - (5) - } { + (3) + } '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) - } { + (4) + } '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) - } { + (5) + } '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) - } { + (6) + } '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) - } { + (7) + } 'Overburden' means the soil, rock
and similar materials that lie above natural deposits of
minerals.
{ - (10) - } { + (8) + } 'Person' means any person, any
federal agency or any public body, as defined in ORS 174.109.
{ - (11) - } { + (9) + } '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) - } { + (10) + } '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) - } { + (11) + } 'Reclamation plan' means a
written proposal, submitted to the department as required by ORS
517.702 to 517.989 and subsequently approved by the
{ + Oregon + } Department { + of Natural Resources + } 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.
(g) Requirements of the exploration permit.
{ - (14) - } { + (12) + } '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) - } { + (13) + }(a) 'Surface mining' includes 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) '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) - } { + (14) + } '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) - } { + (15) + } '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 1136a. ORS 517.755 is amended to read:
517.755. Notwithstanding the yard and acre limitations of ORS
517.750 { - (15) - } { + (13) + }, as soon as any mining
operation begun after July 1, 1975, affects more than five acres
of land the provisions of ORS 517.702 to 517.989 apply to the
mining operation.
SECTION 1137. ORS 517.770 is amended to read:
517.770. (1) The following mining operations are exempt from
the reclamation requirements set forth in ORS 517.702 to 517.989:
(a) Lands within the surfaces and contours of surface mines in
existence on July 1, 1972, or vertical extensions of those
surfaces and contours, provided that the { - State Department
of Geology and Mineral Industries - } { + Oregon Department of
Natural Resources + } issued a certificate of exemption to the
mining operation on or before October 31, 2000.
(b) Lands within the surfaces and contours of surface mines in
existence on July 1, 1972, or vertical extensions of those
surfaces and contours, provided that:
(A) The surface mining operations at the site were allowed
under a comparable certificate of exemption that was issued by a
county and current on the date of repeal of a county zoning law
or ordinance described in ORS 517.780 (1); and
(B) The landowner or operator applies for and receives a
certificate of exemption from the department. An application for
a certificate of exemption must be filed with the department
within 90 days after the date the county's repeal of a zoning law
or ordinance becomes effective. If the department does not
approve or disapprove the application within 90 days after the
date the application is filed with the department, the
application will be deemed to be approved.
(c) Lands within the surfaces and contours of surface mining
operations that are owned or operated by a person that, on July
1, 1972, was a party to a surface mining contract that was valid
on January 1, 1971, provided that the department issued a
certificate of exemption to the mining operation on or before
September 20, 1985.
(2) A certificate of exemption terminates if the landowner or
operator does not renew the certificate annually.
SECTION 1138. ORS 517.775 is amended to read:
517.775. Notwithstanding the provisions of ORS 517.770:
(1) Any landowner or operator conducting surface mining on July
1, 1972, shall pay the permit fee as provided in ORS 517.800; and
(2) The { - State Department of Geology and Mineral
Industries - } { + Oregon Department of Natural Resources + }
shall require the landowner or operator to complete erosion
stabilization upon completion of mining at a mining operation
exempt from reclamation under ORS 517.770.
SECTION 1139. ORS 517.780 is amended to read:
517.780. (1)(a) The provisions of ORS 517.702 to 517.989 and
the rules and regulations adopted thereunder do not supersede any
county zoning laws or ordinances in effect on July 1, 1972.
However, if the county zoning laws or ordinances are repealed on
or after July 1, 1972, the provisions of ORS 517.702 to 517.989
and the rules and regulations adopted thereunder are controlling.
The { - governing board of the State Department of Geology and
Mineral Industries - } { + Director of the Oregon Department of
Natural Resources + } may adopt rules and regulations with
respect to matters covered by county zoning laws and ordinances
in effect on July 1, 1972.
(b) If the county zoning laws or ordinances specified in
paragraph (a) of this subsection are repealed by a county:
(A) The { + Oregon + } Department { + of Natural
Resources + } may allow a surface mining operation that
previously operated under a valid county operating permit and
reclamation plan to continue to operate for a period not to
exceed one year if the landowner or operator applies for an
operating permit under ORS 517.790 within 60 days after the date
the county's repeal of the zoning laws or ordinances becomes
effective, pays all applicable fees to the department and submits
a bond or security to the department as required by ORS 517.810.
Pending issuance of an operating permit and approval of a
reclamation plan by the department, the county permit is deemed
to remain in effect and is enforceable by the department.
(B) The department, in issuing a permit and approving a
reclamation plan for a surface mining operation that previously
operated under a valid county operating permit as described in
paragraph (a) of this subsection, may incorporate any provisions
from the county operating permit into the permit issued by the
department and the reclamation plan approved by the department if
the department determines that the provisions provide adequate
protection of the public health, safety and welfare and the
environment.
(C) The department may issue a certificate of exemption from
reclamation requirements as described in ORS 517.770 (1)(b).
(2) City or county operated surface mining operations that sell
less than 5,000 cubic yards of minerals within a period of 12
consecutive calendar months are exempt from the state mining
permit requirements of ORS 517.702 to 517.989 if the city or
county adopts an ordinance that includes a general reclamation
scheme establishing the means and methods of achieving
reclamation for city or county operated surface mining sites
exempted from the state permit requirements by this subsection.
SECTION 1140. ORS 517.790 is amended to read:
517.790. (1) A landowner or operator may not allow or engage in
surface mining on land not surface mined on July 1, 1972, without
holding a valid operating permit from the { - State Department
of Geology and Mineral Industries - } { + Oregon Department of
Natural Resources + } for the surface mining operation. A
separate permit is required for each separate surface mining
operation. A person seeking an operating permit from the
department shall submit an application on a form provided by the
department that contains the following information:
(a) The name and address of the landowner and the operator and
the names and addresses of any persons designated by them as
their agents for the service of process.
(b) The materials for which the operation is to be conducted.
(c) The type of surface mining to be employed in the operation.
(d) The proposed date for the initiation of the operation.
(e) The size and legal description of the lands that will be
affected by the operation, and, if more than 10 acres of land
will be affected by the operation and if the department
determines that the conditions warrant it, a map of the lands to
be surface mined that includes the boundaries of the affected
lands, topographic details of the lands, the location and names
of all streams, roads, railroads, utility facilities, wells,
irrigation ditches, ponds, stockpiles, buffers, setbacks and
excavation boundaries within or adjacent to the lands, the
location of all proposed access roads to be protected or
constructed in conducting the operation and the names and
addresses of the owners of all surface and mineral interests of
the lands included within the surface mining area.
(f) If practicable, a plan for visual screening by vegetation
or otherwise that will be established and maintained on the lands
within the operation for the purpose of screening the operation
from the view of persons using adjacent public highways, public
parks and residential areas.
(g) The type of monitoring well abandonment procedures.
(h) A proposed reclamation plan that is acceptable to and
approved by the department.
(i) Any other information that the department considers
pertinent in its review of the application.
(2) The department may waive the requirement for preparation
and approval of a reclamation plan if:
(a) The operation is conducted as part of the on-site
construction of a building, public works project or other
physical improvement of the subject property;
(b) The operation is reasonably necessary for such
construction; and
(c) The proposed improvements are authorized by the local
jurisdiction with land use authority.
(3) The department may not issue an operating permit to an
operator other than the owner or owners of the surface and
mineral interests of the lands included within the surface mining
area unless the operator:
(a) Has written approval from the owner or owners of all
surface and mineral interests of the lands included within the
surface mining area; and
(b) Maintains a legal interest in the lands that is sufficient
to ensure that the operator has the authority to operate and
reclaim the lands as provided in the operating permit and
reclamation plan.
(4) The department may refuse to issue an operating permit to a
person who has not, in the determination of the department,
substantially complied with the conditions of an operating permit
or reclamation plan, the provisions of this chapter or the rules
adopted by the department to carry out the purposes of this
chapter.
SECTION 1141. ORS 517.795 is amended to read:
517.795. (1) The { - State Department of Geology and Mineral
Industries - } { + Oregon Department of Natural Resources + }
shall consult with other state agencies as necessary to ensure
that rules developed by the department and those agencies
regarding exploration or monitoring well requirements for sites
described under ORS 517.790 do not conflict.
(2) The department and any other state agencies imposing
requirements for exploration or monitoring wells for sites
described under ORS 517.790 may enter into agreements for the
department to act on behalf of the agencies in informing the
landowner or operator of the requirements and overseeing
enforcement of the requirements.
SECTION 1142. ORS 517.800 is amended to read:
517.800. (1)(a) Except for an application for a chemical
process mining operation submitted under ORS 517.952 to 517.989,
each applicant for an operating permit under ORS 517.702 to
517.989 shall pay to the { - State Department of Geology and
Mineral Industries - } { + Oregon Department of Natural
Resources + } a fee established by the { - State Geologist - }
{ + Director of the Oregon Department of Natural Resources + }
in an amount not to exceed $1,260.
(b) If an application for a new permit or an amendment to an
existing permit requires extraordinary department resources
because of concerns about slope stability or proximity to waters
of the state or other environmentally sensitive areas, the
applicant shall pay to the department an additional fee in an
amount determined by the { - State Geologist - }
{ + director + } to be adequate to cover the additional costs
for staff and other related expenses. The { - State
Geologist - } { + director + } shall consult with the applicant
when determining the amount of the fee.
(2) Annually, each holder of an operating permit shall pay to
the department a base fee of $635, plus $0.0075 per ton of
aggregate or mineral ore extracted during the previous 12-month
period.
(3) If a reclamation plan is changed, the operator may be
assessed for staff time and other related costs an amount not to
exceed $1,260 in addition to the annual renewal fee.
(4) If, at operator request, the department responds to
requests for information required by a local government in making
a land use planning decision on behalf of the operator for a
specific site, the { - State Geologist - } { + director + }
may require the operator to pay the department a fee for staff
time and related costs. The department shall notify the operator
in advance of the estimated costs of providing the information,
and the actual amount assessed shall not exceed the estimate
provided by the department.
(5) The { - State Geologist - } { + director + } may
require the operator of a site to pay to the department a special
inspection fee in an amount not to exceed $200 for an inspection
conducted under the following circumstances:
(a) Investigation of surface mining operations conducted
without the operating permit required under ORS 517.790; or
(b) Investigation of surface mining operations conducted
outside the area authorized in an operating permit.
(6) Upon request of an applicant or operator, the department
shall provide an itemized list and documentation of expenses used
to determine a fee under subsection (1)(b), (3) or (4) of this
section.
(7) Notwithstanding the per ton fee established in subsection
(2) of this section, the { - governing board of the
department - } { + Director of the Oregon Department of Natural
Resources + } may lower to zero or raise the per ton fee up to
$0.0085 if necessary to provide financial certainty to the
department or to reflect actual expenses of the department in
administering ORS 517.702 to 517.951. If the per ton fee
established in subsection (2) of this section is raised by the
{ - governing board - } { + director + }, the additional
amount of money collected by the department shall be deposited in
the Mined Land Regulation and Reclamation Program Subaccount
within the { - Geology and Mineral Industries Account - } { +
Oregon Natural Resources Fund + }.
(8) The { - governing board of the State Department of
Geology and Mineral Industries - } { + director + }:
(a) Shall adopt by rule a procedure for the administrative
review of the determinations of fees under this section.
(b) Shall adopt rules establishing the payment date for annual
fees required under this section.
(c) May adopt rules establishing a late fee of up to five
percent of the unpaid amount of an annual fee owed under this
section if the annual fee is more than 60 days past due.
SECTION 1143. ORS 517.810 is amended to read:
517.810. (1) Before issuing or reissuing an operating permit
for any surface mining operation or issuing or reissuing an
exploration permit for any exploration activity, the { - State
Department of Geology and Mineral Industries - } { + Oregon
Department of Natural Resources + } shall require that the
applicant for the permit file with it a bond or security
acceptable to the department in a sum to be determined by the
department but in an amount not to exceed the total cost for
reclamation if the department were to perform the reclamation.
{ - The decision of the department may be appealed to the
governing board of the State Department of Geology and Mineral
Industries as provided in ORS chapter 183. - } The bond or
security shall be conditioned upon the faithful performance of
the reclamation plan and of the other requirements of ORS 517.702
to 517.989 and the rules adopted thereunder.
(2) Nothing in this section shall apply to any public body, as
defined in ORS 174.109.
(3) In lieu of the bond or other security required of the
applicant in subsection (1) of this section, the department may
accept a similar security from the landowner, equal to the
estimated cost of reclamation as determined by the department in
consultation with the operator or explorer. { - The decision of
the department may be appealed to the governing board as provided
in ORS chapter 183. - }
(4) In lieu of the bond required by subsection (1) of this
section, the department may accept a blanket bond covering two or
more surface mining sites or exploration projects operated by a
single company, owned by a single landowner or operated by all
members of an established trade association, in an amount,
established by the department, not to exceed the amount of the
bonds that would be required for separate sites.
(5) The { - governing board - } { + Director of the Oregon
Department of Natural Resources + } shall identify by rule the
procedures for the determination of the amount of the bond or
other security required of an applicant for an operating permit
or exploration permit. The rules:
(a) Shall provide an opportunity for participation by the
applicant as part of the procedures; and
(b) May allow for the amount of the bond to be calculated and
adjusted based upon the total area expected to be in a disturbed
condition in the following year as a result of the surface mining
or exploration operation.
SECTION 1144. ORS 517.815 is amended to read:
517.815. (1) The { - State Department of Geology and Mineral
Industries - } { + Oregon Department of Natural Resources + }
may establish and administer a program that provides for the
pooling of reclamation bonds to assist:
(a) An operator in complying with the reclamation bond
requirements of ORS 517.810;
(b) A person engaging in small mining operations or small
exploration projects on federally managed lands to comply with
financial guarantee requirements imposed by the Federal Land
Policy and Management Act of 1976 (P.L. 94-579) or regulations
adopted to implement the Act under 43 U.S.C. 1740; or
(c) A person engaging in any form of mining or exploration to
comply with bonding requirements imposed pursuant to county
ordinance.
(2) The program must:
(a) Be designed to reduce the financial burden of obtaining a
reclamation bond for mining or exploration.
(b) Require each person participating in the program to:
(A) Pay an amount into the pool each year that is actuarially
determined to enable the program to be self-sustaining and pay
for the costs of the department in administering the program;
(B) Execute an agreement, on a form provided by the department,
to indemnify the pool for any claims made against the reclamation
bond; and
(C) Provide security approved by the { - State Geologist, if
the State Geologist - } { + Director of the Oregon Department
of Natural Resources if the director + } considers security
necessary to ensure against the possible forfeiture of the
reclamation bond.
(c) Use the moneys in the pool to cover the bonded liability of
persons participating in the program.
(d) Provide a limit on the total bonded liability of any person
that may be covered under the program.
(e) Provide conditions for the release or forfeiture of bonds.
(f) Provide that a person that participates in the program has
obtained security acceptable to the department as required by ORS
517.810.
(3) The department may adopt rules relating to the development
and administration of the program established under this section.
SECTION 1145. ORS 517.820 is amended to read:
517.820. (1) Upon good cause shown, the { - State Department
of Geology and Mineral Industries - } { + Oregon Department of
Natural Resources + } may grant reasonable extensions of time for
the completion by the landowner or operator and the submission to
the department of a proposed reclamation plan required by ORS
517.790. Each reclamation plan submitted to the department must
provide that all reclamation activities shall be completed within
three years after the termination of mineral extraction from the
surface mining operation conducted within each separate area for
which an operating permit is requested. Each such reclamation
plan shall be approved by the department if it adequately
provides for the reclamation of surface-mined lands.
(2) The department, prior to approving a proposed reclamation
plan, shall consult with all other interested state agencies and
appropriate local planning authorities.
SECTION 1146. ORS 517.830 is amended to read:
517.830. (1) Upon receipt of an application for an operating
permit, the { - State Department of Geology and Mineral
Industries - } { + Oregon Department of Natural Resources + }
shall inspect the operating site described in the application.
Within 90 days after the date that the application and the
required permit fee are received, the department shall issue the
operating permit applied for or, if it considers the application
incomplete, return the application to the applicant for
correction of the deficiencies indicated by the department.
(2) Failure by the department to act upon the reclamation plan
submitted with an application for an operating permit within the
90-day period referred to in subsection (1) of this section is
not a denial by the department of the operating permit applied
for. The department, pending final approval of a reclamation
plan, may issue a provisional permit subject to reasonable
limitations that may be prescribed by the department and
conditioned upon the applicant's compliance with the bond and
security requirements established by ORS 517.810.
(3)(a) Notwithstanding subsections (1) and (2) of this section,
if an application involves an aggregate site that requires a
permit issued pursuant to ORS 215.427 or 227.178, and if the
local jurisdiction requests that the application not be decided
until the local jurisdiction has taken final action, the
department shall make a final decision on the operating permit
and reclamation plan no later than 165 days after the date a
complete land use application is submitted to the local
jurisdiction, unless the applicant agrees to allow additional
time under ORS 215.427, 215.429, 227.178 or 227.179. If a plan
amendment is required as part of issuance of a permit, the
provisions of paragraph (b) of this subsection apply. The
department may not approve an operating permit and reclamation
plan if the land use application is denied.
(b) Notwithstanding subsections (1) and (2) of this section, if
an application involves an aggregate site that requires amendment
to a comprehensive plan, as defined in ORS 197.015, and if the
local jurisdiction requests that the application not be decided
until the local jurisdiction has taken final action on the plan
amendment, the department may not make a final decision on the
operating permit and reclamation plan until the local
jurisdiction has taken final action on the plan amendment. The
department shall make its final decision within 45 days of the
date that the local jurisdiction has taken final action on the
plan amendment. The department may not approve an operating
permit and reclamation plan if the plan amendment is denied.
(4) Conditions and requirements imposed on an operating permit
and reclamation plan, and modifications thereto, issued
subsequent to issuance of a local jurisdiction permit shall be
compatible with the requirements and conditions of the local
government permit, unless more stringent requirements are
necessary to comply with the provisions of ORS 517.750 to
517.901.
(5) If a local jurisdiction does not request that the
department delay a decision on an operating permit and
reclamation plan as provided in subsection (3) of this section,
the department shall:
(a) Give the local jurisdiction the opportunity to review and
comment on the application; and
(b) Notify the local jurisdiction of the decision and
requirements and conditions imposed by the department.
(6) If the department refuses to approve a submitted
reclamation plan, it shall notify the applicant, in writing, of
its reasons for the refusal to approve the reclamation plan,
including additional requirements as may be prescribed by the
department for inclusion in the reclamation plan. Within 60 days
after the receipt of the notice, the applicant shall comply with
the additional requirements prescribed by the department for the
reclamation plan or file with the department a notice of appeal
from the decision of the department with respect to the
reclamation plan. If a notice of appeal is filed with the
department by the applicant, the department may issue a
provisional permit to the applicant.
(7) If an application is submitted as part of the consolidated
application process under ORS 517.952 to 517.989, review of the
application and approval or denial of the application shall be in
accordance with ORS 517.952 to 517.989. However, the review and
approval or denial shall take into consideration all policy
considerations for issuing a permit under ORS 517.702 to 517.989.
SECTION 1147. ORS 517.831 is amended to read:
517.831. (1) Except as provided in subsection (2) of this
section, the { - State Department of Geology and Mineral
Industries - } { + Oregon Department of Natural Resources + }
may not modify an operating permit or reclamation plan without
the consent of the operator.
(2) The department may modify an operating permit or
reclamation plan without the consent of the operator if, because
of changed conditions at the permitted site or because of
information otherwise not available to the department at the time
of permit issuance or reclamation plan establishment, the
department finds, by substantial evidence, that a modification is
justified due to the potential for:
(a) Substantial harm to off-site property;
(b) Harm to threatened or endangered species; or
(c) Channel changes or unstable pit walls.
(3) Modification of an operating permit or reclamation plan
without the consent of the operator must be limited to the areas
or matters affected by the changed conditions or new information.
(4) If the department modifies an operating permit or
reclamation plan without the consent of the operator, the
department must provide the operator with an opportunity for
alternative dispute resolution in the manner provided in ORS
183.502.
SECTION 1148. ORS 517.832 is amended to read:
517.832. (1) Notwithstanding ORS 517.810 and 517.830, the
{ - State Department of Geology and Mineral Industries - }
{ + Oregon Department of Natural Resources + } may issue an
emergency operating permit if:
(a) A natural disaster, including but not limited to a flood or
an earthquake, or the effects of a natural disaster threaten
significant damage to property or to natural resources; and
(b) A surface mining operation is necessary to abate the
threat.
(2) The { - governing board of the department - }
{ + Director of the Oregon Department of Natural Resources + }
shall adopt rules governing the issuance of emergency operating
permits. The rules shall include provisions:
(a) Ensuring that emergency operating permits are not issued
over the objection of affected federal agencies or public bodies,
as defined in ORS 174.109;
(b) Specifying the terms of an emergency operating permit;
(c) Establishing procedures for converting an emergency
operating permit to a standard operating permit; and
(d) Establishing procedures for payment of fees under ORS
517.800.
SECTION 1149. ORS 517.833 is amended to read:
517.833. (1) A person who by sale, assignment, lease or other
means has succeeded in interest to an uncompleted surface mining
operation may request that the { - State Department of Geology
and Mineral Industries - } { + Oregon Department of Natural
Resources + } release the existing operator from any reclamation
obligations and transfer the operating permit to the successor.
The department shall transfer the operating permit, unless:
(a) The successor does not agree to full assumption of the
reclamation requirements in the operating permit and reclamation
plan;
(b) The successor fails to provide a bond or security as
required by ORS 517.810;
(c) More than one person has a claim to the property or
operating permit and there is a dispute between the claimants
that presents a justiciable controversy; or
(d) The successor, as the operator of another permitted site in
this state, has failed to substantially comply with the
conditions of an operating permit or reclamation plan, the
provisions of ORS 517.702 to 517.989 or the rules adopted by the
department to carry out the purposes of ORS 517.702 to 517.989.
(2) The { - governing board of the State Department of
Geology and Mineral Industries - } { + Director of the Oregon
Department of Natural Resources + } may adopt rules relating to
the responsibilities and duties of a person requesting a transfer
of an operating permit under this section.
SECTION 1150. ORS 517.834 is amended to read:
517.834. (1) Notwithstanding ORS 517.810 and 517.830, the
{ - State Department of Geology and Mineral Industries - }
{ + Oregon Department of Natural Resources + } may issue a
temporary operating permit to a person if:
(a) After consultation, the local jurisdiction with land use
authority over the permitted site does not raise substantive
objections to the issuance of the permit;
(b) All interested state agencies approve of the permit
issuance; and
(c) There is no objection from persons owning property adjacent
to the permitted site.
(2) A temporary operating permit issued under this section is
subject to reasonable limitations that may be prescribed by the
department.
(3) Within 30 days after issuing the temporary operating
permit, the operator shall:
(a) Comply with the bond and security requirements established
by ORS 517.810;
(b) Pay any applicable fee pursuant to ORS 517.800; and
(c) Submit a reclamation plan to the department.
(4) The { - governing board of the department - }
{ + Director of the Oregon Department of Natural Resources + }
shall adopt rules governing the issuance of temporary operating
permits. The rules shall include provisions:
(a) Ensuring opportunities for notice and comment by federal
agencies;
(b) Specifying the terms of a temporary operating permit; and
(c) Establishing procedures for converting a temporary
operating permit to a standard operating permit.
SECTION 1151. ORS 517.835 is amended to read:
517.835. (1) Notwithstanding ORS 517.831, the { - State
Department of Geology and Mineral Industries - } { + Oregon
Department of Natural Resources + } may require conditions on any
new or existing surface mining operating permit or reclamation
plan sufficient to prevent or mitigate off-site impacts to ground
water resources from the removal of water from surface mining
operations. The department may include ground water monitoring as
one of the conditions.
(2) The department shall { - consult with the operator and
the Water Resources Department in assessing - } { + assess + }
off-site impacts and in developing prevention or mitigation
measures prior to imposing any conditions on an operating permit
or reclamation plan pursuant to this section.
SECTION 1152. ORS 517.836 is amended to read:
517.836. (1)(a) The { - governing board of the State
Department of Geology and Mineral Industries - } { + Director
of the Oregon Department of Natural Resources + } may adopt rules
requiring the surveying or marking of surface mining operations.
(b) The rules may include, but are not limited to, requirements
for maps or diagrams showing areas excavated or approved for
excavation, setbacks or buffers established by the operating
permit and the location of buildings, wells, ponds, haul roads,
stockpiles, bodies of water and floodways.
(c) The rules may require that information required under this
subsection be updated if the mining operations are subject to:
(A) A notice of violation under ORS 517.860;
(B) A suspension order under ORS 517.880; or
(C) A significant modification of the operating permit or
reclamation plan under ORS 517.831.
(d) The rules may exempt mining operations from survey or
marking requirements based on the size or location of the
operations or on the distance of the operations from ground and
surface waters.
(e) The rules must allow for reasonable compliance schedules
for existing mining operations.
(2) The { - governing board - } { + director + } may adopt
rules requiring surface mining operators to collect and report
information relating to amount and nature of materials excavated
or processed at a surface mining operation and the impacts of
mining operations on ground or surface water.
SECTION 1153. ORS 517.837 is amended to read:
517.837. A person holding an operating permit issued pursuant
to ORS 517.830 shall, no later than March 31 of each year, file
an annual report with the { - State Department of Geology and
Mineral Industries. The governing board of the department - }
{ + Oregon Department of Natural Resources. The Director of the
Oregon Department of Natural Resources + } shall adopt rules
describing the information relating to the permit and operations
under the permit that must be included in the annual report.
SECTION 1154. ORS 517.840 is amended to read:
517.840. (1) The { - governing board of the State Department
of Geology and Mineral Industries - } { + Director of the
Oregon Department of Natural Resources + } shall administer and
enforce the provisions of ORS 517.702 to 517.989 and:
(a) May conduct or cause to be conducted investigations,
research, experiments and demonstrations and may collect and
disseminate information related to surface mining and the
reclamation of surface-mined lands.
(b) May cooperate with other governmental and private agencies
of this state or of other states and with agencies of the federal
government, including the reimbursement for any services provided
by such agencies to the { - State Department of Geology and
Mineral Industries - } { + Oregon Department of Natural
Resources + } at its request.
(c) May apply for, accept and expend public and private funds
made available for the reclamation of lands affected by surface
mining in accordance with the purposes of ORS 517.702 to 517.989.
(d) May, in accordance with the applicable provisions of ORS
chapter 183, adopt rules to carry out the provisions of ORS
517.702 to 517.989.
(e) Shall establish by rule a program to encourage voluntary
reclamation practices that exceed the normal reclamation
standards to provide maximum enhancement and benefits from mined
lands. The program shall include incentives and other actions
that will encourage voluntary reclamation practices.
(f) May receive and manage abandoned mined land funds received
for abandoned mined land reclamation from the federal government.
(2) In consultation with the Department of Environmental
Quality, { - the board - } { + the director + } shall
identify those naturally occurring hazardous or toxic metals and
minerals that, if present in sufficient concentrations at a
surface mining site, subject the operator to the increased bond
or security requirements of ORS 517.950. The metals and minerals
shall include, but need not be limited to, arsenic, mercury,
lead, uranium and asbestos.
SECTION 1155. ORS 517.850 is amended to read:
517.850. At such reasonable times as the { - State Department
of Geology and Mineral Industries - } { + Oregon Department of
Natural Resources + } may elect, the department, after reasonable
advance notice has been given to the operator, may cause the
permitted site to be inspected to determine if the operator has
complied with the operating permit, reclamation plan, this
chapter and the rules of the department.
SECTION 1156. ORS 517.860 is amended to read:
517.860. (1) If, from inspections conducted pursuant to ORS
517.850 or from any other source, the { - State Department of
Geology and Mineral Industries - } { + Oregon Department of
Natural Resources + } determines that the operator has not
complied with or is not complying with the operating permit, the
reclamation plan, the provisions of this chapter or the rules of
the department, the department may issue either or both of the
following to the operator:
(a) Written notice of the violation. The notice shall
specifically outline the deficiencies.
(b) A compliance order. The order may specify a date by which
the operator shall rectify any deficiencies. The department may
extend the period if delays occasioned for causes beyond the
operator's control necessitate more time, but only when the
operator is, in the opinion of the department, making a
reasonable effort to comply with the order.
(2) The department may recover against the bond or alternative
form of financial security and reclaim the area affected by
surface mining if the department determines that an operator:
(a) Has failed to comply with a department order issued under
subsection (1) of this section;
(b) Fails to complete reclamation in conformance with the
reclamation plan on any segment of the permitted site or fails to
complete reclamation in a timely manner; or
(c) Fails to maintain an operating permit and pay all fees
required under ORS 517.800.
(3) If the department makes a claim on the bond or security
filed pursuant to ORS 517.810, the surety on the bond or holder
of the other security shall pay to the department the amount of
the bond or other security required. The department may reclaim
the surface-mined land in a manner determined by the department,
including by public or private contractor. If the amount is not
paid within 30 days, the Attorney General, upon request of the
department, shall institute proceedings to recover the amount.
(4) If the landowner has given security as provided in ORS
517.810 (3) and the operator is in default as specified in
subsection (2) of this section, the landowner shall be held
responsible for complying with the reclamation plan of the
operator. The department shall furnish written notice of the
default to the landowner and require the landowner to complete
the reclamation as specified in the operator's reclamation plan
acceptable to the department. If the landowner has not commenced
action to rectify the deficiencies within 30 days after receiving
notice, or if the landowner fails to diligently pursue
reclamation in conformance with the plan, the department may
demand payment of the amount of the bond or other security from
the surety or other holder and otherwise proceed as provided in
subsections (2) and (3) of this section.
(5) The department, in performing reclamation of surface-mined
land, shall pursue a goal for reclamation designed to:
(a) Remove hazards;
(b) Protect from drainage problems and from pollution;
(c) Meet local land use requirements for reclamation; and
(d) Comply with all federal and state laws.
(6) The department may delay, for a reasonable time not to
exceed one year, all or part of any reclamation activities if the
department determines that it is likely that:
(a) Marketable mineral reserves exist at the permitted site;
and
(b) A new operator will seek an operating permit for the site
and assume all reclamation responsibilities.
SECTION 1157. ORS 517.862 is amended to read:
517.862. (1) Except as provided in subsection (2) of this
section, the { - State Department of Geology and Mineral
Industries - } { + Oregon Department of Natural Resources + }
may not revoke, terminate or refuse to renew an operating permit
if marketable reserves exist at the permitted site and if there
is a significant potential for continued mining opportunities
given reasonably foreseeable economic conditions.
(2) The department may revoke, terminate or refuse to renew an
operating permit if the operator:
(a) Requests termination, provided that all reclamation
requirements in the operating permit and reclamation plan have
been satisfied;
(b) Fails to pay a fee as required by ORS 517.800 within 60
days of the due date;
(c) Fails to provide or maintain a bond or security as required
by ORS 517.810;
(d) Fails to comply with an order issued under ORS 517.860; or
(e) Fails to comply with a suspension order issued under ORS
517.880.
(3) If an operating permit is revoked, terminated or not
renewed, the operator may not perform any actions at the
permitted site, except that the operator may, after receiving
written approval from the department:
(a) Perform actions at the permitted site that are necessary to
comply with reclamation requirements in the operating permit or
reclamation plan, including but not limited to removal of
mining-related stockpiles;
(b) Excavate materials at the permitted site that are necessary
for reclamation; and
(c) Remove any excavated materials from buffers, setbacks or
other areas not approved for disturbance and restore the areas to
the approximate pre-mining contours with materials approved by
the department.
(4) The department, in lieu of or in addition to revoking,
terminating or refusing to renew an operating permit for the
reasons specified in subsection (2) of this section, may recover
against the bond or security filed pursuant to ORS 517.810 and
reclaim the area affected by surface mining.
SECTION 1158. ORS 517.865 is amended to read:
517.865. (1) If an operator fails to faithfully perform the
reclamation required by the reclamation plan and if the bond or
security required by ORS 517.810 is not sufficient to compensate
the { - State Department of Geology and Mineral Industries - }
{ + Oregon Department of Natural Resources + } for all
reasonably necessary costs and expenses incurred by it in
reclaiming the surface-mined land, the amount due shall be a lien
in favor of the department upon all property, whether real or
personal, belonging to the operator. However, for any operator
that is first issued a permit after June 30, 1989, the lien shall
not exceed $2,500 for each site plus $1,500 per acre.
(2) The lien shall attach upon the filing of a notice of claim
of lien with the county clerk of the county in which the property
is located. The notice of lien claim shall contain a true
statement of the demand, the insufficiency of the bond or
security to compensate the department and the failure of the
operator to perform the reclamation required.
(3) The lien created by this section is prior to all other
liens and encumbrances, except that the lien shall have equal
priority with tax liens.
(4) The lien created by this section may be foreclosed by a
suit in the circuit court in the manner provided by law for the
foreclosure of other liens on real or personal property.
SECTION 1159. ORS 517.870 is amended to read:
517.870. Upon request of the operator, and when in the judgment
of the { - State Department of Geology and Mineral
Industries - } { + Oregon Department of Natural Resources + }
the reclamation has been completed in accordance with the
reclamation plan, the operator shall be notified that the work
has been found to be satisfactorily performed and is acceptable
and the bond or security of the operator shall be adjusted
accordingly.
SECTION 1160. ORS 517.880 is amended to read:
517.880. (1) When the { - State Department of Geology and
Mineral Industries - } { + Oregon Department of Natural
Resources + } finds that an operator is conducting a surface
mining operation for which an operating permit is required by ORS
517.702 to 517.989 or by rules adopted by the department, but has
not been issued by the department, the department may issue an
order to the operator to suspend the operation until an operating
permit has been issued by the department for the surface mining
operation or until the department is assured that the operator
will comply with the requirement to obtain a permit.
(2) The department may issue an order to an operator to suspend
operations if the operator has not complied with or is not
complying with the operating permit, reclamation plan, this
chapter or rules of the department. Failure to comply includes,
but is not limited to, disturbing land within the permit boundary
that has not been approved by the department for excavation,
placement of debris or removal of vegetation.
(3) If the operator fails or refuses to comply with a
suspension order, the Attorney General, at the request of the
department, shall initiate any necessary legal proceeding to
enjoin the surface mining operation and to provide for completion
of the reclamation of the lands affected by the operation,
including the restoration of buffers, setbacks or other areas not
approved for disturbance.
SECTION 1161. ORS 517.890 is amended to read:
517.890. Any final determinations made by the { - State
Department of Geology and Mineral Industries - } { + Oregon
Department of Natural Resources + } in carrying out the
provisions of ORS 517.702 to 517.989 and the rules and
regulations adopted thereunder may be reviewed in the manner
provided by the applicable provisions of ORS chapter 183.
SECTION 1162. ORS 517.901 is amended to read:
517.901. Any production records, mineral assessments and trade
secrets submitted by a mine operator or landowner to the
{ - State Department of Geology and Mineral Industries - }
{ + Oregon Department of Natural Resources + } shall be
confidential.
SECTION 1162a. ORS 517.910 is amended to read:
517.910. For the purposes of ORS 517.910 to 517.989:
(1) Notwithstanding ORS 517.750 { - (12) - } { + (10) + },
'reclamation ' means the employment in a surface mining operation
of procedures reasonably designed to minimize as much as
practicable the disruption from the surface mining operation or
surface mining processing operation, including cyanide leaching
or any other chemical leaching processing at a processing site
removed from the mining site and to provide for the
rehabilitation of any such surface resources through the use of
plant cover, soil stability techniques, and through the use of
measures to protect the surface and subsurface water resources,
including but not limited to domestic water use and agricultural
water use, and other measures appropriate to the subsequent
beneficial use of any land or water resource affected by a
surface mining or processing operation.
(2) 'Nonaggregate minerals' means coal and metal-bearing ores,
including but not limited to ores that contain nickel, cobalt,
lead, zinc, gold, molybdenum, uranium, silver, aluminum, chrome,
copper or mercury.
SECTION 1163. ORS 517.915 is amended to read:
517.915. (1) In addition to any other provision of law, the
{ - State Department of Geology and Mineral Industries - }
{ + Oregon Department of Natural Resources + } shall not issue
an operating permit until:
(a) The department has received a reclamation plan that
contains but is not limited to:
(A) A description of the proposed mining operation;
(B) A description of what is to be mined;
(C) The present use of the land, the planned subsequent
beneficial use of the land and a list of plant species to be
established;
(D) The measures that will adequately conserve the quantity and
quality of the affected aquifers;
(E) A description of any toxic or radioactive materials known
to be present in the ore, spoil, tailings, overburden or any
other material involved in the mining operation and their
approximate concentrations;
(F) A description of how the materials described in
subparagraph (E) of this paragraph will be handled during mining
and reclamation;
(G) Environmental baseline information as may be required by
the department; and
(H) The name and address of the landowner, the owner of the
surface estate, the operator and any parent corporations of the
operator.
(b) The department has received a performance bond as it may
require.
(c) The department finds that reclamation is possible and that
the reclamation plan as approved will achieve the reclamation of
affected lands.
(2) The reclamation plan, minus proprietary information, is a
public document.
(3) If the department finds that reclamation cannot be
accomplished, it shall not issue an operating permit.
(4) The department shall obtain, whenever possible, a list of
plant species suitable for reseeding in the area pursuant to a
reclamation plan and comments on the feasibility of permanent
revegetation from the soil and water conservation district in
which the mined land is situated.
(5) The department shall consult with the soil and water
conservation district in which the mined land is situated
regarding the feasibility of reclamation, with particular
attention to possible impacts on ground water aquifers.
SECTION 1164. ORS 517.920 is amended to read:
517.920. (1) Each application for an operating permit under ORS
517.910 to 517.989 or exploration permit under this section and
ORS 517.702 to 517.755, 517.790, 517.810 and 517.910 shall be
accompanied by a fee sufficient to cover the costs of the
{ - State Department of Geology and Mineral Industries - }
{ + Oregon Department of Natural Resources + } in processing the
application and monitoring compliance as determined by the
department.
(2) If the application is for a chemical process mine, the
application shall be accompanied by an additional fee at each
stage of the process sufficient to cover the costs of the
department in maintaining a regulatory permit program that allows
for the extraction and processing of metals.
SECTION 1165. ORS 517.925 is amended to read:
517.925. The { - State Department of Geology and Mineral
Industries - } { + Oregon Department of Natural Resources + }
shall have 120 days to act upon a completed permit application.
SECTION 1166. ORS 517.930 is amended to read:
517.930. (1) Notwithstanding ORS 517.850, if the { - State
Department of Geology and Mineral Industries - } { + Oregon
Department of Natural Resources + } has reason to believe that
the provisions of an operating permit are being violated or that
a surface mining operation is being conducted without a valid
operating permit, it may inspect such surface mining areas
without prior notice.
(2) In addition to the department's authority to inspect under
ORS 517.850 and subsection (1) of this section, for a chemical
process mine operating under a permit issued under ORS 517.952 to
517.989, a cooperating agency also may inspect the mining
operation to assure that the operator is complying with
conditions imposed on the operating permit by the cooperating
agency under ORS 517.982 (2).
SECTION 1167. ORS 517.940 is amended to read:
517.940. Notwithstanding ORS 517.860, for the purposes of ORS
517.910 to 517.989 the expenditure by the { - State Department
of Geology and Mineral Industries - } { + Oregon Department of
Natural Resources + } for reclamation not completed by the
operator shall not exceed $10,000 per acre.
SECTION 1168. ORS 517.950 is amended to read:
517.950. (1) Notwithstanding ORS 517.810, for the purposes of
ORS 517.905 to 517.951 the bond or security deposit required
shall not exceed $10,000 per acre of land to be surface mined
under the terms of the operating permit.
(2) The { - State Department of Geology and Mineral
Industries - } { + Oregon Department of Natural Resources + }
may increase the amount of the bond or security required under
subsection (1) of this section to an amount not to exceed the
lower of actual cost of reclamation or $100,000 per acre of land
to be mined under the terms of the operating permit if the
operating permit applies to extraction, processing or
beneficiation techniques the result of which:
(a) Will increase the concentration of naturally occurring
hazardous or toxic metals and minerals identified by the
{ - governing board of the State Department of Geology and
Mineral Industries - } { + Director of the Oregon Department of
Natural Resources + } under ORS 517.840 to a significantly higher
level than that occurring naturally within the permitted site;
and
(b) Is reasonably likely to present a threat to public health,
safety or the environment.
(3) The increased bond or security deposit under subsection (2)
of this section may be required only when the department
determines that a threat to surface or subsurface waters is
reasonably likely to exist as a result of the permitted activity.
SECTION 1169. ORS 517.952 is amended to read:
517.952. As used in ORS 517.702 to 517.989:
(1) 'Affected agency' includes permitting agencies, cooperating
agencies and commenting agencies.
(2) 'Baseline data' means information gathered to characterize
the natural and cultural environments of a mining operation site
before a mining operation begins.
(3) 'Chemical process mine' means a mining and processing
operation for metal-bearing ores that uses chemicals to dissolve
metals from ore.
(4) 'Commenting agency' means any agency that makes
recommendations to the { - State Department of Geology and
Mineral Industries - } { + Oregon Department of Natural
Resources + } or to a permitting agency regarding permit
conditions or whether to approve or deny a permit under the
consolidated application process established under ORS 517.952 to
517.989.
(5) 'Consolidated application' means the single application
required under ORS 517.971.
(6) 'Cooperating agency' means an agency that has statutory
responsibility related to a chemical process mine but that does
not issue a permit for the mining operation.
(7) 'Environmental evaluation' means an analysis prepared under
ORS 517.979 to address specific impacts of the chemical process
mine operation to allow affected agencies to develop permit
conditions.
(8) 'Mitigation' means the reduction of adverse effects of a
proposed chemical process mining operation by considering, in the
following order:
(a) Avoiding the impact altogether by not taking a certain
action or parts of an action;
(b) Minimizing impacts by limiting the degree or magnitude of
the action and its implementation;
(c) Rectifying the impact by repairing, rehabilitating or
restoring the affected environment;
(d) Reducing or eliminating the impact over time by
preservation and maintenance operations during the life of the
action by monitoring and taking appropriate corrective measures;
or
(e) Compensating for the impact by replacing or providing
comparable substitute resources or environments.
(9) 'Permitting agency' means an agency that has a separate
permitting authority for a proposed chemical process mine.
(10) 'Person' means any individual, partnership, corporation,
association, public interest organization, the State of Oregon or
any political subdivision, board, agency or commission of the
State of Oregon.
(11) 'Project coordinating committee' means the interagency
governmental committee established in accordance with ORS
517.965.
(12) 'Technical review team' means the interagency group
established in accordance with ORS 517.967.
SECTION 1170. ORS 517.956 is amended to read:
517.956. Any chemical process mining operation in Oregon shall
comply with the following standards:
(1) Chemical process mining, including extraction, processing
and reclamation, shall be undertaken in a manner that minimizes
environmental damage through the use of the best available,
practicable and necessary technology to ensure compliance with
environmental standards.
(2) { - Protection measures for fish and wildlife shall be
consistent with policies of the State Department of Fish and
Wildlife, including - } { + To protect fish and wildlife
habitat, the Oregon Department of Natural Resources, in
accordance with ORS chapter 183, shall adopt rules that
incorporate the following + }:
(a) Protective measures to maintain an objective of zero
wildlife mortality. All chemical processing solutions and
associated waste water shall be covered or contained to preclude
access by wildlife or maintained in a condition that is not
harmful to wildlife.
(b) On-site and off-site mitigation { - ensuring - }
{ + measures to ensure + } that there is no overall net loss of
habitat value.
(c) { + Measures to ensure + } no loss of existing critical
habitat of any state or federally listed threatened or endangered
species.
(d) { + A plan for reporting + } fish and wildlife mortality
{ - shall be reported in accordance with a monitoring and
reporting plan approved by the State Department of Fish and
Wildlife - } { + rates + }.
(e) { - The State Department of Fish and Wildlife shall
establish by rule standards for review of a proposed chemical
process mining operation for the purpose of developing conditions
for fish and wildlife habitat protection that satisfy the terms
of this section for inclusion in a consolidated permit by the
State Department of Geology and Mineral Industries. - }
{ + Rules for reviewing the effects of a proposed chemical
process mining operation on fish and wildlife habitat. + }
(3) Surface reclamation of a chemical process mine site shall:
(a) Ensure protection of human health and safety, as well as
that of livestock, fish and wildlife;
(b) Ensure environmental protection;
(c) Require certification { - to the operator, by the State
Department of Fish and Wildlife and the State Department of
Agriculture, - } { + by the Oregon Department of Natural
Resources and the State Department of Agriculture + } that a
self-sustaining ecosystem, comparable to undamaged ecosystems in
the area, has been established in satisfaction of the operator's
habitat restoration obligations; and
(d) Include backfilling or partial backfilling as determined on
a case-by-case basis by the { - State Department of Geology and
Mineral Industries - } { + Oregon Department of Natural
Resources + } when necessary to achieve reclamation objectives
that cannot be achieved through other mitigation activities.
SECTION 1171. ORS 517.957 is amended to read:
517.957. The { - State Department of Geology and Mineral
Industries - } { + Oregon Department of Natural Resources + }
shall coordinate the activities of the affected agencies related
to the consolidated application process established under ORS
517.952 to 517.989.
SECTION 1172. ORS 517.959 is amended to read:
517.959. (1) Whenever required in ORS 517.952 to 517.989,
public notice shall include information sufficient to inform the
public of the proposed activity or event and shall include:
(a) Notification to all permitting and cooperating agencies.
(b) Notice by mail to each owner of property located within
one-half mile of the perimeter of the proposed site of the mining
operation. As used in this paragraph, 'owner' means the owner of
the title to real property or the contract purchaser of real
property of record as shown on the last available complete tax
assessment roll.
(c) Notice by mail to persons on the master list.
(d) Notice by mail to mineral claimants for claims located
within one-half mile of the proposed chemical process mining
operation or as otherwise required by rule of a permitting or
cooperating agency.
(e) Notice by publication in a newspaper of general circulation
in the state and in a local newspaper of general circulation in
the county or counties in which the proposed chemical process
mining operation is located. Notice by publication shall be given
at least once each week for two weeks immediately preceding the
action.
(2) The notice provided pursuant to this section shall satisfy
any notice requirement of an individual permitting or cooperating
agency related to a permit included in the consolidated
application process established under ORS 517.952 to 517.989.
(3) As used in this section, 'master list' means a consolidated
list of all interested parties compiled by the { - State
Department of Geology and Mineral Industries - } { + Oregon
Department of Natural Resources + } and each permitting and
cooperating agency and maintained by the department. Any person
may request in writing that the { - State Department of Geology
and Mineral Industries - } { + department + } add the person's
name to the agency master list. The
{ - State Department of Geology and Mineral Industries - }
{ + department + } may establish a procedure for establishing
and maintaining an agency master list, and the { - governing
board of the department - } { + Director of the Oregon
Department of Natural Resources + } may establish a fee to be
paid by a person requesting to be added to the master list. The
fee shall be sufficient to defray the department's costs of
mailing notices to persons on the master list and maintaining the
master list.
SECTION 1173. ORS 517.961 is amended to read:
517.961. A prospective applicant for a permit to operate a
chemical process mining operation shall file with the { - State
Department of Geology and Mineral Industries - } { + Oregon
Department of Natural Resources + } a notice of intent to submit
an application and post copies of the notice along the perimeter
of the location of the proposed operation. The posting shall be
sufficient to inform the public of the intended action and a
legal description of the proposed mining operation location and
shall comply with requirements adopted by rule by the
{ - governing board of the department - } { + Director of the
Oregon Department of Natural Resources + }.
SECTION 1174. ORS 517.963 is amended to read:
517.963. Upon receipt of a notice of intent under ORS 517.961,
the { - State Department of Geology and Mineral Industries - }
{ + Oregon Department of Natural Resources + } shall:
(1) Provide notice as required under ORS 517.959. The notice
shall be sufficient to inform the public of the nature, size and
location of the proposed chemical process mining operation.
(2) Activate a project coordinating committee for the proposed
mining operation and coordinate the participation of federal
agencies, affected agencies, local government agencies and the
prospective applicant in the activities of the project
coordinating committee.
(3) Activate a technical review team for the proposed mining
operation.
(4) Identify to the prospective applicant all permitting and
cooperating agencies that will be participating in the
consolidated application process.
SECTION 1175. ORS 517.965 is amended to read:
517.965. A project coordinating committee shall be composed of
representatives from the { - State Department of Geology and
Mineral Industries - } { + Oregon Department of Natural
Resources + }, all permitting and cooperating agencies, local
government agencies and affected federal agencies. Each
permitting and cooperating agency shall designate an appropriate
staff member to the committee. The project coordinating committee
shall share information and coordinate county, state and federal
permitting requirements in order to avoid contradictory
requirements, facilitate the exchange of ideas, optimize
communication and avoid duplicative effort. If a chemical process
mine is proposed on federal land, the project coordinating
committee shall work with the affected federal agency in
accordance with a memorandum of agreement established by the
department and the federal agency to facilitate the state and
federal application process and to coordinate the two processes
to the fullest extent possible. In carrying out its
responsibilities, the project coordinating committee shall
include opportunities for public participation.
SECTION 1176. ORS 517.967 is amended to read:
517.967. (1) A technical review team shall be composed of
representatives from the { - State Department of Geology and
Mineral Industries - } { + Oregon Department of Natural
Resources + } and each permitting agency and cooperating agency.
The technical review team shall:
(a) Establish methodology guidelines to be followed in the
collection of baseline data;
(b) Coordinate with the applicant the use of baseline data
collection methodologies as approved by the permitting and
cooperating agencies; and
(c) Determine whether the chemical process mining operation as
proposed in the consolidated application complies with the
standards established in ORS 517.956 and any other applicable
requirements for a permit listed under ORS 517.971.
(2) Each permitting agency and cooperating agency shall
designate an appropriate staff member to serve on the technical
review team.
SECTION 1177. ORS 517.969 is amended to read:
517.969. (1) Upon receipt of notice from a prospective
applicant that the prospective applicant is ready to begin
collecting baseline data, the { - State Department of Geology
and Mineral Industries - } { + Oregon Department of Natural
Resources + } shall:
(a) Provide notice in accordance with ORS 517.959 that the
prospective applicant intends to begin baseline data collection
and the location where additional background information may be
obtained or reviewed.
(b) Within 30 days after receiving the notice from the
applicant, conduct two public information meetings. One public
meeting shall be conducted in the population center closest to
the site of the proposed mining operation and one public meeting
shall be conducted in a major population center for the state, as
determined by { - State Department of Geology and Mineral
Industries - } { + the department + }.
(c) Receive written comments from the public and affected
agencies for 45 days after receiving notice under this
subsection.
(2) The purpose of the public informational meetings and public
comment period under subsection (1) of this section shall be to:
(a) Identify the issues raised by the proposed chemical process
mining operation;
(b) Receive information from the public that the { - State
Department of Geology and Mineral Industries - }
{ + department + } and the permitting and cooperating agencies
may need to know in order to evaluate the application; and
(c) Determine the data that should be collected during the
baseline data collection phase of the consolidated application
process to address the issues identified.
(3) Upon receipt of notice under subsection (1) of this
section, the technical review team activated under ORS 517.963
shall determine the specific methodologies to be applied by the
applicant in collecting baseline data.
(4) The applicant shall collect data according to the
methodology established by the permitting and cooperating
agencies through the technical review team. The data collected
shall be verified by the appropriate agency in accordance with
procedures adopted by the agency.
SECTION 1178. ORS 517.971 is amended to read:
517.971. Each applicant for a permit to operate a chemical
process mining operation shall submit a consolidated application
to the { - State Department of Geology and Mineral
Industries - } { + Oregon Department of Natural Resources + }.
The department and the permitting and cooperating agencies shall
not begin deliberating on whether to issue a permit until the
department receives an application fee and a complete
consolidated application that includes but is not limited to:
(1) Name and location of the proposed facility.
(2) Name, mailing address and phone number of the applicant and
a registered agent for the applicant.
(3) The legal structure of the applicant as filed in the
business registry with the Secretary of State and the legal
residence of the applicant.
(4) Mineral and surface ownership status of the proposed
facility.
(5) Baseline data, including but not limited to environmental,
socioeconomic, historical, archaeological conditions, land use
designations and special use designations in the area of the
state in which the proposed chemical process mining operation is
located.
(6) Appropriate maps, aerial photos, cross sections, plans and
documentation.
(7) A proposed:
(a) Mine plan;
(b) Processing plan;
(c) Water budget;
(d) Fish and wildlife protection and mitigation plan;
(e) Operational monitoring and reporting plan;
(f) Reclamation and closure plan;
(g) Plan for controlling water runoff and run on;
(h) Operating plan;
(i) Solid and hazardous waste management plan;
(j) Plan for transporting and storing toxic chemicals;
(k) Employee training plan as required by agency rule;
(L) Seasonal or short term closure plan;
(m) Spill prevention and credible accident contingency plan;
(n) Post-closure monitoring and reporting plan; and
(o) Identification of special natural areas, including but not
limited to areas designated as areas of critical environmental
concern, research natural areas, outstanding natural areas and
areas designated by the Oregon Natural Areas Plan, as defined in
state rules and federal regulations.
(8) All information required by the permitting agencies to
determine whether to issue or deny the following permits as
applicable to the proposed operation:
(a) Surface mining operating permits required under ORS 517.790
and 517.915;
(b) Fill and removal permits required under ORS 196.600 to
196.905;
(c) Permits to appropriate surface water or ground water under
ORS 537.130 and 537.615, to store water under ORS 537.400 and
impoundment structure approval under ORS 540.350 to 540.390;
(d) National Pollutant Discharge Elimination System permit
under ORS 468B.050;
(e) Water pollution control facility permit under ORS 468B.050;
(f) Air contaminant discharge permit under ORS 468A.040 to
468A.060;
(g) Solid waste disposal permit under ORS 459.205;
(h) Permit for use of power driven machinery on forestland
under ORS 477.625;
(i) Permit for placing explosives or harmful substances in
waters of the state under ORS 509.140;
(j) Hazardous waste storage permit under ORS 466.005 to
466.385;
(k) Local land use permits; and
(L) Any other state permit required for the proposed chemical
process mining operation.
(9) All other information required by the department, a
permitting agency, a cooperating agency or the technical review
team.
SECTION 1179. ORS 517.973 is amended to read:
517.973. (1) In addition to any permit fee required by any
other permitting agency, each consolidated application under ORS
517.971 shall be accompanied by an initial fee established by the
{ - State Geologist - } { + Director of the Oregon Department
of Natural Resources + } in an amount not to exceed $606.
(2)(a) Annually on the anniversary date of the issuance of each
such operating permit, each holder of an operating permit shall
pay to the { - State Department of Geology and Mineral
Industries - } { + Oregon Department of Natural Resources + } a
fee established by the { - State Geologist - }
{ + director + } in an amount not less than $456.
(b) In addition to the fee prescribed in paragraph (a) of this
subsection, the department may charge an additional amount not to
exceed $200 for inspections made at sites:
(A) Where surface mining was conducted without the permit
required by ORS 517.790;
(B) Where surface mining has been abandoned; or
(C) Where surface mining was conducted in an area not described
in the surface mining permit.
(3) Subject to the provisions of subsection (5) of this
section, the applicant shall pay all expenses incurred by the
department and the permitting and cooperating agencies related to
the consolidated application process under ORS 517.952 to
517.989. These expenses may include legal expenses, expenses
incurred in processing and evaluating the consolidated
application, issuing a permit or final order and expenses of
hiring a third party contractor under ORS 517.979 and 517.980.
(4) Every applicant submitting a consolidated application under
ORS 517.952 to 517.989 shall submit the fee required under
subsection (1) of this section to the department at the same time
as the consolidated application is filed under ORS 517.971. To
the extent possible, the full cost of the process set forth in
ORS 517.952 to 517.989 shall be paid from the application fee
paid under this section. However, if such costs exceed the fee,
the applicant shall pay any excess costs shown in an itemized
statement prepared by the department. In no event shall the
department and permitting and cooperating agencies incur
evaluation expenses in excess of 110 percent of the fee initially
paid unless the department provides prior notification to the
applicant and a detailed projected budget the department believes
necessary to complete the process or a portion of the process
under ORS 517.952 to 517.989. If the costs are less than the fee
paid, the excess shall be refunded to the applicant.
(5) All expenses incurred by the department and the permitting
and cooperating agencies under ORS 517.952 to 517.989 that are
charged to or allocated to the fee paid by an applicant shall be
necessary, just and reasonable. Upon request, the department
shall provide a detailed justification for all charges to the
applicant.
SECTION 1180. ORS 517.975 is amended to read:
517.975. Upon receipt of a completed consolidated application,
the { - State Department of Geology and Mineral Industries - }
{ + Oregon Department of Natural Resources + } shall:
(1) Provide copies of the application to each affected local
government, permitting agency, cooperating agency or federal
agency.
(2) Provide notice of the receipt of the consolidated
application in accordance with ORS 517.959. The notice shall
include information about the opportunity for submitting written
comments on the application and about the public hearing
conducted as required under ORS 517.977.
SECTION 1181. ORS 517.977 is amended to read:
517.977. (1) When all members of the technical review team
concur that the permitting agencies and the cooperating agencies
are ready to begin preparing draft permits, the { - State
Department of Geology and Mineral Industries - } { + Oregon
Department of Natural Resources + } shall conduct a public
hearing and accept written comments on whether the information
contained in the consolidated application is complete and
sufficient to allow the permitting agencies to determine whether
to issue a permit. The date and location of the public hearing
and the period allowed for written comment shall be established
by the department. Notice of the public hearing and comment
period shall be given in accordance with ORS 517.959.
(2) At the conclusion of the public hearing and comment period
under subsection (1) of this section and within 90 days after the
{ - State Department of Geology and Mineral Industries - } { +
department + } receives a consolidated application for a chemical
process mining operation, the department, in conjunction with all
permitting and cooperating agencies, shall make a determination
of whether the application is complete. On the basis of the
determination the department shall either:
(a) If the permitting and cooperating agencies determine that
the consolidated application is complete, issue a notice to
proceed with the permitting process and the preparation of draft
permits; or
(b) If the permitting and cooperating agencies determine that
additional information is necessary, notify the applicant of the
additional information that is required.
(3) If the permitting and cooperating agencies do not require
the applicant to provide additional information as suggested at
the public hearing or comment period under subsection (1) of this
section, the agencies shall prepare a written response explaining
why the additional information is not being requested from the
applicant.
(4) Upon receipt of any additional information requested, the
{ - State Department of Geology and Mineral Industries - }
{ + department + } shall accept public comments related to the
additional information for a period of two weeks. Except as
provided in ORS 517.978, the department shall not conduct
additional public hearings.
SECTION 1182. ORS 517.978 is amended to read:
517.978. (1) After the { - State Department of Geology and
Mineral Industries - } { + Oregon Department of Natural
Resources + } issues a notice to proceed, the consolidated
application shall be considered complete unless:
(a) New information is available that could not have been
presented at the time of the completeness hearing; or
(b) Additional information is necessary to allow the permitting
or cooperating agencies to make a determination regarding whether
to issue or deny a permit or to issue the permit with conditions
attached.
(2) The permitting and cooperating agencies may continue to
review an application while in the process of requesting
additional information. However, the department shall conduct an
additional public hearing under ORS 517.977 if the agencies
determine that additional information is significant to the
issuance or denial of a permit.
SECTION 1183. ORS 517.979 is amended to read:
517.979. (1) The { - State Department of Geology and Mineral
Industries - } { + Oregon Department of Natural Resources + }
shall direct staff or shall hire a third party contractor to:
(a) Prepare an environmental evaluation;
(b) Review baseline data submitted by the applicant; and
(c) Review application material if a permitting agency or a
cooperating agency lacks the expertise.
(2) The applicant shall pay costs of hiring a third party
contractor. If the applicant shows cause why a particular third
party contractor should not be allowed to perform a function
under subsection (1) of this section, the department shall hire
an alternate contractor.
(3) The contents of the environmental evaluation under
subsection (1) of this section shall include:
(a) An analysis of the reasonably foreseeable impacts of an
activity including catastrophic consequences even if the
probability of occurrence is low, if the analysis is supported by
credible scientific evidence, is not based on pure conjecture and
is within the rule of reason.
(b) An assessment of the total cumulative impact on the
environment that results from the incremental impact of an action
when added with other past, present and reasonably foreseeable
future actions, regardless of the agency or persons that
undertake the other action, or whether the actions are on
private, state or federal land. To the extent possible, the
department shall enter into a memorandum of agreement with
federal agencies to insure that information required by the state
in evaluating the cumulative impact of a proposed chemical
process mine may be used by the applicant to satisfy federal
requirements for such an assessment.
(c) A review and analysis of alternatives analyzed by the
applicant or a contractor hired by the applicant that:
(A) Rigorously explores and objectively evaluates all
reasonable alternatives and briefly discusses alternatives that
were eliminated and the reasons the alternatives were eliminated;
(B) Treats each alternative, including the proposed action, in
detail so that the permitting agencies, cooperating agencies and
the public may evaluate the comparative merits of the
alternatives; and
(C) Identifies all alternatives within the authority of each
permitting or cooperating agency.
(4) Upon completion of the environmental evaluation, the
{ - State Department of Geology and Mineral Industries - }
{ + department + } shall provide notice in accordance with ORS
517.959. The notice shall state that the environmental evaluation
is complete and that the persons may respond with written
comments for a period of two weeks after the notice is given.
SECTION 1184. ORS 517.980 is amended to read:
517.980. Concurrent with the development of the environmental
evaluation, the { - State Department of Geology and Mineral
Industries - } { + Oregon Department of Natural Resources + }
shall direct staff or hire a third party contractor to prepare a
socioeconomic impact analysis for the use of the applicant, local
government and affected agencies.
SECTION 1185. ORS 517.981 is amended to read:
517.981. (1) Within 225 days after receiving the completed
consolidated application and the environmental evaluation
conducted under ORS 517.979, each permitting agency shall provide
its draft permit and permit conditions or its denial document to
the { - State Department of Geology and Mineral Industries - }
{ + Oregon Department of Natural Resources + }. If a permitting
agency includes in its draft permit a condition that is
inconsistent with the environmental evaluation conducted pursuant
to ORS 517.979, the agency shall include with its draft permit a
written explanation of the condition setting forth the findings
of the agency that support the condition. The { - State
Department of Geology and Mineral Industries - }
{ + department + } shall { - assure - } { + ensure + } that
the conditions imposed on the permits by the cooperating agencies
do not conflict. If the department finds a conflict exists, the
technical review team shall resolve the conflict.
(2) Within 15 days after receiving all draft permits and the
completion of its draft operating permit, the { - State
Department of Geology and Mineral Industries - }
{ + department + } shall issue notice of an opportunity for
public comment and a consolidated public hearing on all draft
permits. The public hearing shall occur not sooner than 45 days
after the department issues the notice. The notice shall be
issued in accordance with ORS 517.959.
SECTION 1186. ORS 517.982 is amended to read:
517.982. (1) Based on information received at the consolidated
public hearing, from persons submitting written comments,
commenting agencies and the review of the affected agencies, each
permitting agency shall, within 45 days after the consolidated
public hearing under ORS 517.981 or within the time period
required by any applicable federal law, whichever is sooner,
approve, deny or modify the agency's permit with conditions
necessary to assure that the chemical process mining operation
allowed under a permit complies with the standards and
requirements applicable to the permit.
(2) Each cooperating agency shall develop permit conditions
within the expertise and authority of the cooperating agency and
submit the permit conditions to the { - State Department of
Geology and Mineral Industries - } { + Oregon Department of
Natural Resources + } to be included as conditions on the
department's permit. The department shall not issue a permit
until each cooperating agency has submitted a written concurrence
with the terms and conditions of the permit as such pertain to
the statutory responsibility of each cooperating agency.
(3) Upon completion of the permits, the department shall issue
a notice in accordance with ORS 517.959 to notify interested
persons that the final permits are issued.
SECTION 1187. ORS 517.983 is amended to read:
517.983. (1) The applicant or any person who appeared before a
permitting agency at the consolidated public hearing under ORS
517.981, either orally or in writing, regarding a permit granted
or denied by the permitting agency may file with the { - State
Geologist - } { + Director of the Oregon Department of Natural
Resources + } a written request for a consolidated contested case
hearing. The request shall be filed within 30 days after the date
the permit was granted or denied.
(2) Upon receipt of a request under subsection (1) of this
section, the { - State Department of Geology and Mineral
Industries - } { + Oregon Department of Natural Resources + }
shall schedule a consolidated contested case hearing which shall
be held not less than 60 days or more than 75 days after the
notice of permit issuance under ORS 517.982. The hearing shall be
conducted in accordance with the provisions applicable to
contested case proceedings under ORS chapter 183. Any permit
granted by a permitting agency shall be suspended until
completion of the administrative hearings process.
(3) Hearings under this section shall be conducted by an
administrative law judge assigned from the Office of
Administrative Hearings established under ORS 183.605.
(4) The administrative law judge shall prepare a proposed order
for each contested permit. A party may file written exceptions to
the proposed order with the permitting agency. If the permitting
agency determines that additional information may be included in
the record, the agency shall remand the order to the appropriate
administrative law judge for further consideration. After
receiving exceptions and hearing argument on the exceptions, the
governing body or person within the permitting agency responsible
for making a final decision on a permit may adopt the proposed
order or issue a new order.
(5) Jurisdiction for judicial review of a permitting agency's
issuance or denial of a permit is conferred upon the Supreme
Court. Proceedings for review shall be instituted by filing a
petition in the Supreme Court. The petition shall be filed within
60 days following the date the permit is issued or denied. If the
permit with prescribed conditions is approved, the filing of the
petition for review shall stay the permit during the pendency of
judicial review for a period of up to six months from the date
the petition for review is filed. The Supreme Court may extend
the stay beyond the six-month period upon written request and a
showing by the petitioner that the activities under the permit
could result in irreparable harm to the site. Except as otherwise
provided in this subsection, the review by the Supreme Court
shall be as provided in ORS 183.482. The Supreme Court shall give
priority on its docket to such a petition for review.
(6) When only the applicant files a petition for judicial
review, the six-month stay imposed under subsection (5) of this
section may be removed by the permitting agency upon written
request within 60 days after the filing of the petition and a
showing by the applicant to support a finding by the permitting
agency that proceeding with any or all activities under the
permit will not result in irreparable harm to the site. In making
such findings the permitting agency may require an additional
bond or alternative security to be filed with the { - State
Department of Geology and Mineral Industries - }
{ + department + } as provided in ORS 517.987. The bond shall be
in an amount the permitting agency determines necessary to assure
complete restoration of the site if the petitioner elects not to
complete the project following judicial review. Agency denial of
the request to remove the stay is subject to review by the
Supreme Court under such rules as the Supreme Court may
establish.
SECTION 1188. ORS 517.984 is amended to read:
517.984. (1) The operator, the { - State Department of
Geology and Mineral Industries - } { + Oregon Department of
Natural Resources + }, any other permitting agency or a
cooperating agency may request modification of a permit issued
under the process established under ORS 517.952 to 517.989.
(2) If a permitting agency is requested to make a permit
modification that the permitting agency or a cooperating agency
finds is a significant permit modification under the provisions
of ORS 517.952 to 517.989, the agency shall notify the
{ - State Department of Geology and Mineral Industries - }
{ + department + }. The department shall coordinate the
organization of a project coordinating committee. The project
coordinating committee shall review the proposed modification and
determine those portions of ORS 517.952 to 517.989 with which the
applicant must comply. The decision of the project review
committee shall be:
(a) Limited to those portions of the chemical process mine
operation to be modified; and
(b) Consistent with public participation as set forth in ORS
517.952 to 517.989.
SECTION 1189. ORS 517.985 is amended to read:
517.985. In accordance with applicable provisions of ORS
chapter 183, the { - governing board of the State Department of
Geology and Mineral Industries - } { + Director of the Oregon
Department of Natural Resources + } shall adopt rules necessary
to implement the provisions of ORS 517.952 to 517.989. The rules
shall include but need not be limited to:
(1) The information required to be submitted in a notice of
intent;
(2) The fee that the { - department - } { + Oregon
Department of Natural Resources + } may collect from a person
requesting inclusion on the master list under ORS 517.959; and
(3) The form and content of the consolidated application.
SECTION 1190. ORS 517.986 is amended to read:
517.986. Notwithstanding any other provision of law, the
{ - State Department of Geology and Mineral Industries - }
{ + Oregon Department of Natural Resources + } and any other
permitting agency shall take final action to issue or deny a
permit subject to the consolidated application process set forth
in ORS 517.952 to 517.989 within one year after issuance of a
notice to proceed under ORS 517.977. However, with the
concurrence of the applicant, the processing of the application
may be suspended for a period of time to allow the applicant to
resolve issues having a bearing on, or necessary to any
permitting agency's decision or the department's decision on
whether to issue or deny a permit.
SECTION 1191. ORS 517.987 is amended to read:
517.987. (1) At the time of submitting a consolidated
application under ORS 517.971, the applicant shall estimate the
total cost of reclamation consistent with the standards imposed
under ORS 517.702 to 517.989. Using the reclamation estimate and
a credible accident analysis as a guide, the { - State
Department of Geology and Mineral Industries - } { + Oregon
Department of Natural Resources + } shall make an initial
determination as to the amount of the reclamation bond necessary
to protect human health and the environment. The department shall
distribute a bond proposal to all permitting and cooperating
agencies. The amount of the bond that the department may require
to cover the actual cost of reclamation shall not be limited.
(2) The reclamation bond or alternative security acceptable to
the department shall be posted before the start of mining
operations. The bond shall be issued by a bonding company
licensed to operate in Oregon. A mining operation may not satisfy
the requirements for a bond through self-insurance.
(3) The department shall assess annually the overall cost of
reclamation. If changes in the operation or modifications to a
permit cause the cost of reclamation to exceed the amount of the
reclamation bond currently held by the state, the operator shall
post an additional bond for the difference. All reclamation
calculations shall be approved by the department. Incremental
surety increases shall be provided for, with the level of surety
being consistent with the degree and forms of surface disturbance
anticipated within a time period specified by the department.
When the actual surface area to be disturbed approaches the level
expected by the department, the operator shall notify the
department sufficiently in advance of reaching the acreage limit
specified to allow for a review of surety requirements and
posting of additional surety by the operator prior to exceeding
the acreage limit set by the department.
(4) If reclamation costs will exceed the posted bond and the
operator does not increase the bond amount, the department and
other permitting agencies shall suspend all permits until the
operator posts the additional bond security.
(5) The department may seek a lien against the assets of the
operator to cover the cost of reclamation if the bond posted is
insufficient. The amount of the lien shall be the amount of the
costs incurred by the department to complete reclamation. All
current operating permits of the operator shall be suspended and
the department shall deny immediately all pending applications of
the operator to conduct mining operations.
(6)(a) The operator shall submit to the department a written
request for the release of its reclamation bond. If the operator
has conducted concurrent reclamation, the operator shall submit
an application for bond reduction which estimates the percentage
of reclamation done to date and the corresponding percentage of
reclamation funds that the operator believes should be returned.
A bond release or reduction request shall state in unambiguous
terms all measures taken to reclaim the site and any problem or
potential problems that may inhibit reclamation in accordance
with permit requirements.
(b) The department shall distribute the request to each
permitting or cooperating agency, to members of the public who
participated in the consolidated application under ORS 517.952 to
517.989, and to any person who requests notification. In
addition, the department shall publish a notice as provided in
ORS 517.959 announcing receipt of a request for bond release or
bond reduction.
(c) No sooner than 60 days after distributing the request and
providing notice of the receipt of the request, the department
shall conduct an informal public hearing to determine whether to
allow the bond release or bond reduction.
(7) The department may require security or an annuity for
post-reclamation monitoring and care to be paid before the final
bond release. The security or annuity shall be sufficient to
cover long-term site care and monitoring needs. The department
shall determine the amount of the proposed security or annuity
and distribute a proposal to all permitting and cooperating
agencies.
SECTION 1192. ORS 517.988 is amended to read:
517.988. { - (1) - } The { - State Department of Fish and
Wildlife - } { + Oregon Department of Natural Resources + }
shall develop conditions for the protection of fish and wildlife
resources that shall be included in any permit issued { - by
the State Department of Geology and Mineral Industries - } under
the process established under ORS 517.952 to 517.989.
{ - (2) The State Department of Fish and Wildlife shall have
the right of ingress and egress to and from a chemical process
mine operating under a permit that includes conditions imposed
pursuant to subsection (1) of this section, doing no unnecessary
injury to the property of the mine operator, to determine whether
the operator is complying with such conditions. If the State
Department of Fish and Wildlife determines that a violation has
occurred, the State Department of Fish and Wildlife shall inform
the State Department of Geology and Mineral Industries of the
violation and the State Department of Geology and Mineral
Industries shall cooperate with the State Department of Fish and
Wildlife to take appropriate enforcement action. - }
{ - (3) As used in this section 'chemical process mine' has
the meaning given in ORS 517.952. - }
SECTION 1193. ORS 517.989 is amended to read:
517.989. (1) Except as provided in subsections (2) and (3) of
this section, the { - State Department of Geology and Mineral
Industries - } { + Oregon Department of Natural Resources + }
and all permitting and commenting agencies shall review and take
action on a consolidated application in accordance with statutes
and rules in effect at the time the notice of intent to submit an
application is filed under ORS 517.961.
(2) Subsection (1) of this section shall not apply to a
consolidated application if:
(a) An applicant is responsible for unreasonable delays in the
processing of the application or fails to make a good faith
effort to comply with all requirements for issuance of the
permit;
(b) Application of a statute or rule is required under federal
law or is a requirement for the state to maintain approval of or
delegation of administration of a federal program; or
(c) The department, or a permitting agency or commenting
agency, finds that application of a rule is necessary to protect
the public from a serious threat to human health or safety.
(3) Subsection (1) of this section shall not apply to rules
adopted by the Environmental Quality Commission on or before
January 1, 1995.
SECTION 1194. ORS 517.990 is amended to read:
517.990. (1) A person who conducts a surface mining operation
without a valid operating permit as required by ORS 517.750 to
517.901 commits a Class A violation.
(2) Subject to ORS 153.022, violation of any provision of ORS
517.750 to 517.901, or any rules promulgated pursuant thereto, or
of any conditions of an operating permit is a Class A violation.
(3) Subject to ORS 153.022, violation of ORS 517.910 to
517.951, or any rules promulgated pursuant thereto, or of any
conditions of an operating permit for a nonaggregate surface
mining operation is punishable, upon conviction, by a fine of not
more than $10,000.
(4) Notwithstanding any other provision of the law, a person
who conducts a nonaggregate surface mining operation without a
valid operating permit as required by ORS 517.910 to 517.951
shall be punished, upon conviction, by a fine of not more than
$10,000.
(5) A person commits a violation subject to a fine of not more
than $10,000 if the person knowingly or recklessly causes
substantial harm to human health or the environment while:
(a) Conducting a surface mining operation without a valid
operating permit as required by ORS 517.750 to 517.901 or 517.905
to 517.951; or
(b) Violating an operating permit, a reclamation plan, a
provision of this chapter or any rule adopted by the { - State
Department of Geology and Mineral Industries - } { + Oregon
Department of Natural Resources + } to carry out the provisions
of this chapter.
(6) For purposes of this section, 'substantial harm to human
health or the environment' means:
(a) Physical injury, as defined in ORS 161.015, or risk of
serious physical injury, as defined in ORS 161.015, to humans; or
(b) Substantial damage to wildlife, plants, aquatic and marine
life, habitat or stream buffers.
SECTION 1195. ORS 517.992 is amended to read:
517.992. (1) In addition to any other sanction authorized by
law, the { - governing board of the State Department of Geology
and Mineral Industries - } { + Director of the Oregon
Department of Natural Resources + } may impose a civil penalty of
not less than $200 per day and not more than $50,000 per day for
any violation of ORS 517.702 to 517.989 related to a chemical
process mine, of any rules adopted under those provisions related
to a chemical process mine, of any orders issued under those
provisions related to a chemical process mine or of any
conditions of a permit issued under those provisions related to a
chemical process mine. A penalty may be imposed under this
section without regard to whether the violation occurs on
property covered by a permit issued under ORS 517.702 to 517.989.
(2)(a) In addition to any other sanction authorized by law, and
subject to the limitations of paragraph (b) of this subsection,
the { - governing board of the State Department of Geology and
Mineral Industries - } { + director + } may impose a civil
penalty of not more than $10,000 per day for any violation of ORS
517.702 to 517.740, 517.750 to 517.901 and 517.905 to 517.951 not
related to a chemical process mine, of any rules adopted under
those provisions not related to a chemical process mine, of any
orders issued under those provisions not related to a chemical
process mine or of any conditions of a permit issued under those
provisions not related to a chemical process mine.
(b) A penalty may be imposed under this subsection only if a
landowner or operator fails to complete erosion stabilization as
required by ORS 517.775 or { - board - } rules adopted { + by
the director + } to implement that section, if the operator has
failed to comply with an order issued under ORS 517.860 or
517.880, if the operation is being conducted in violation of
conditions imposed on an operating permit or reclamation plan
pursuant to ORS 517.835 or if the operation is being conducted:
(A) Without a permit;
(B) Outside the permit boundary; or
(C) Outside a permit condition regarding boundaries, setbacks,
buffers or the placement of surface mining refuse.
(3) Civil penalties under this section shall be imposed in the
manner provided by ORS 183.745.
(4) Failure to pay a civil penalty that has become final under
this section shall be grounds for revocation of any permit issued
under ORS 517.702 to 517.989 to the person against whom the
penalty has been assessed.
(5) Any civil penalty received by the State Treasurer under
this section shall be deposited in the { - General Fund to the
credit of the Geology and Mineral Industries Account and is
continuously appropriated to the State Department of Geology and
Mineral Industries - } { + Oregon Natural Resources Fund.
Moneys deposited in the fund under this subsection are
continuously appropriated to the Oregon Department of Natural
Resources + } to the extent necessary for the administration and
enforcement of the laws, rules and orders under which the penalty
was assessed.
(6) A reclamation fund shall be established into which funds
not used as described in subsection (5) of this section shall be
deposited. This money shall be used by the { - State Department
of Geology and Mineral Industries - } { + department + } for
the purpose of the reclamation of abandoned mine and drill sites.
(7) When a single incident violates statutes, rules,
{ - board - } orders { + of the director + } or permit
conditions administered by more than one agency, the department
shall coordinate with the other agencies having civil penalty
authority before imposing a civil penalty.
(8) In implementing this section, the department shall adopt
rules that provide civil penalties that are commensurate with the
severity of violations.
(9) A civil penalty may be imposed against the board of
directors and high managerial agents of a corporation if those
persons engage in, authorize, solicit, request, command or
knowingly tolerate the conduct for which the penalty is to be
imposed. As used in this subsection, 'agent' and 'high managerial
agent' have the meanings given those terms in ORS 161.170.
SECTION 1195a. ORS 520.005 is amended to read:
520.005. As used in this chapter, unless the context requires
otherwise:
(1) 'Condensate' means liquid hydrocarbons that were originally
in the gaseous phase in the reservoir.
(2) 'Field' means the general area underlaid by one or more
pools.
(3) 'Gas' means all natural gas and all other fluid
hydrocarbons not defined as oil in subsection (5) of this
section, including condensate originally in the gaseous phase in
the reservoir.
(4) 'Information hole' means a hole drilled for information
purposes only, including but not limited to core holes,
stratigraphic holes or other test holes.
(5) 'Oil' means crude petroleum oil and all other hydrocarbons,
regardless of gravity, that are produced in liquid form by
ordinary production methods, but does not include liquid
hydrocarbons that were originally in a gaseous phase in the
reservoir.
(6) 'Person' means any natural person, partnership,
corporation, association, receiver, guardian, fiduciary,
administrator, representative of any kind, or the State of Oregon
and any public body as defined in ORS 174.109.
(7) 'Pool' means an underground reservoir containing a common
accumulation of oil and natural gas. A zone of a structure that
is completely separated from any other zone in the same structure
is a pool.
(8) 'Owner' means a person who has the right to drill into and
to produce from any pool and to appropriate the oil or gas
produced therefrom either for others, for the person or for the
person and others.
(9) 'Protect correlative rights' means that the action or
regulation by the { - board - } { + Director of the Oregon
Department of Natural Resources + } affords a reasonable
opportunity to each person entitled thereto to recover or receive
the oil or gas in the tract or tracts of the person or the
equivalent thereof, without being required to drill unnecessary
wells or to incur other unnecessary expense to recover or receive
such oil or gas or its equivalent.
(10) 'Seismic program' means the collection of seismic
exploration data through a continuous field operation.
(11) 'Sidetrack' means to reenter a well from the well's
surface location with drilling equipment for the purpose of
deviating from the existing well bore to achieve production from
an alternate zone or bottom hole location, or to remedy an
engineering problem encountered in the existing well bore.
(12) 'Unit area' means one or more pools or parts thereof under
unit operation pursuant to ORS 520.260 to 520.330 and 520.230
(2).
(13) 'Underground reservoir' means any subsurface sand, strata,
formation, aquifer, cavern or void whether natural or
artificially created, suitable for the injection and storage of
natural gas therein and the withdrawal of natural gas therefrom,
but excluding a pool.
(14) 'Underground storage' means the process of injecting and
storing natural gas within and withdrawing natural gas from an
underground reservoir.
(15) 'Waste of oil or gas' means:
(a) The inefficient, excessive or improper use or dissipation
of reservoir energy of any pool, or the locating, spacing,
drilling, equipping, operating or producing of any oil well or
gas well in a manner that results or may result in reducing the
quantity of oil or gas ultimately recoverable from any pool; or
(b) The inefficient storing of oil and the locating, spacing,
drilling, equipping, operating or producing of oil wells or gas
wells in a manner that causes or may cause unnecessary or
excessive surface loss or destruction of oil or gas.
(16)(a) 'Well' means a well drilled for the purpose of
producing or storing oil or gas or other gaseous substances,
reservoir pressure maintenance, disposal of produced fluids, and
injection of water as part of a water flood.
(b) 'Well' includes a well drilled in search of a new or
undiscovered pool, or with the intent of extending the limits of
a developed pool.
(c) 'Well' does not include an information hole or a hole
drilled as part of a seismic program.
SECTION 1196. ORS 520.017 is amended to read:
520.017. (1) The following fees are established under this
chapter:
(a) The application fee for a permit to drill a well, $2,000.
(b) The fee for a request to extend the period for completion
of drilling, $500.
(c) The fee to modify operations at a well, $1,500.
(d) The fee to sidetrack a well, $500.
(e) The fee to plug and abandon a well, $1,000.
(f) The annual renewal fee for operation and maintenance of a
well, $1,500 the first renewal year and $500 for each subsequent
year.
(g) The application fee for a permit to drill an information
hole is to be determined by the { - State Department of Geology
and Mineral Industries - } { + Oregon Department of Natural
Resources + } based on the estimated cost of review and approval,
and the number and location of holes to be drilled. The fee may
not exceed $1,000 per information hole.
(h) The fee for approval of a seismic program shall be
determined by the department based on the estimated cost of
review and approval, but may not exceed $1,000.
(2) The { - governing board of the State Department of
Geology and Mineral Industries - } { + Director of the Oregon
Department of Natural Resources + } by rule may specify a
schedule of fees for costs incurred by the department for
activities related to field designation for purposes of this
section.
(3) All moneys received by the { - State Department of
Geology and Mineral Industries - } { + department + } under
this section shall be
{ - paid into the State Treasury and deposited in the General
Fund to the credit of the Geology and Mineral Industries Account
established in ORS 516.070. - } { + deposited in the Oregon
Natural Resources Fund. Moneys deposited in the fund under this
subsection are continuously appropriated to the department for
the purpose of carrying out the duties, functions and powers of
the department as prescribed by section 1 (8) of this 2011
Act. + }
SECTION 1197. ORS 520.025 is amended to read:
520.025. (1) A person may not drill or use a well without first
obtaining a permit from the { - State Department of Geology and
Mineral Industries - } { + Oregon Department of Natural
Resources + } and posting any bond that may be required pursuant
to ORS 520.095 (1). Drilling must be completed within one year
from the date the permit is issued unless an extension is granted
under subsection (2) of this section. When drilling has been
completed, the well must be maintained under a permit until it is
properly plugged and the site is reclaimed.
(2) An unused permit may be extended by the department for a
reasonable period upon receipt of a written request from the
permittee before the expiration date of the permit. The request
shall be accompanied by a nonrefundable fee established under ORS
520.017.
(3) A permittee maintaining or operating a well shall provide
the department with an annual report on a form provided by the
department. Subject to the determinations in subsection (4) of
this section, a permittee shall renew the permit for a well by
paying the fee established under ORS 520.017.
(4)(a) If upon receipt of the application the department
determines that the method and equipment to be used by the
applicant in drilling or operating the well comply with
applicable laws and rules, the department shall issue the permit.
(b) The department may refuse to issue, refuse to renew or
revoke a permit issued pursuant to this section if the department
determines that methods or equipment to be used or being used in
drilling or operating the well do not comply with applicable laws
or rules, or that the well will not be operated and maintained or
is not being operated or maintained in compliance with the permit
and applicable laws or rules.
SECTION 1198. ORS 520.027 is amended to read:
520.027. (1) A person may not drill an information hole or a
hole drilled as part of a seismic program without first applying
for approval from the { - State Department of Geology and
Mineral Industries - } { + Oregon Department of Natural
Resources + } and paying the fee established in ORS 520.017. The
application must be submitted on a form provided by the
department and must include all information requested by the
department.
(2) A person issued an approval under this section shall comply
with all terms of the department's approval and any other
applicable law or rule. The department may not require the person
receiving approval under this section to provide information from
seismic programs. The department may require the submittal of
information from information holes, but the information is a
trade secret under ORS 192.501 and is not subject to public
disclosure under ORS 192.410 to 192.505.
SECTION 1199. ORS 520.045 is amended to read:
520.045. The { - State Department of Geology and Mineral
Industries - } { + Oregon Department of Natural Resources + }
may determine whether waste of oil or gas over which it has
jurisdiction exists or is imminent. In the exercise of such power
the department may:
(1) Collect data.
(2) Make investigations and inspections.
(3) Examine properties, leases, papers, books and records,
including drilling records and logs.
(4) Examine, check, test and gauge oil and gas wells and tanks.
(5) Hold hearings.
(6) Provide for the keeping of records and the making of
reports.
(7) Take such action as may be reasonably necessary to enforce
this chapter.
SECTION 1200. ORS 520.055 is amended to read:
520.055. (1) The { - governing board of the State Department
of Geology and Mineral Industries - } { + Director of the
Oregon Department of Natural Resources + } has jurisdiction and
authority over all persons and property, including tidal
submerged and submersible lands of this state under ORS 274.705
to 274.860, necessary to enforce effectively this chapter and all
other laws relating to the conservation of oil and gas.
(2) In addition to and not in lieu of any other powers granted
under this chapter, the { - board - } { + director + } may
adopt rules and issue orders necessary to regulate geological,
geophysical and seismic surveys on, and operations to remove
sulfur from, the tidal submerged and submersible lands of this
state under ORS 274.705 to 274.860.
SECTION 1201. ORS 520.095 is amended to read:
520.095. { - The governing board of the State Department of
Geology and Mineral Industries may adopt rules and issue orders,
and the department may issue orders, as may be necessary in the
proper administration and enforcement of this chapter, - }
{ + The Director of the Oregon Department of Natural Resources
may adopt rules and issue orders to administer and enforce this
chapter, + } including but not limited to rules and orders for
the following purposes:
(1) To require the drilling, casing and plugging of wells to be
done in such a manner as to prevent the escape of oil or gas out
of one stratum to another; to prevent the intrusion of water into
oil or gas strata; to prevent the pollution of fresh water
supplies by oil, gas or salt water; and to require reasonable
bond conditioned upon compliance with applicable laws and rules
and upon the performance of the duty to plug each dry or
abandoned well.
(2) To compel the filing of logs from wells, including
electrical logs, if any are taken, drilling records, typical
drill cuttings or cores, if cores are taken, with the
{ - office of the State Geologist - } { + Oregon Department of
Natural Resources + }.
(3) To prevent wells from being drilled, operated and produced
in such a manner as to cause injury to neighboring leases or
property.
(4) To prevent the drowning by water of any stratum or part
thereof capable of producing oil or gas in paying quantities, and
to prevent the premature and irregular encroachment of water that
reduces, or tends to reduce, the total ultimate recovery of oil
or gas from any pool.
(5) To require the operation of wells with efficient gas-oil
ratios, and to fix ratios.
(6) To prevent blowouts, caving and seepage in the same sense
that conditions indicated by such terms are generally understood
in the oil and gas business.
(7) To prevent fires.
(8) To identify the ownership of all oil and gas wells,
producing leases, tanks, plants, structures and all storage
equipment and facilities.
(9) To regulate the stimulation and chemical treatment of
wells.
(10) To regulate secondary recovery methods, including the
introduction of gas, air, water or other substance into producing
formations.
(11) To require the filing currently of information as to the
volume of oil and gas, or either of them, produced and saved from
the respective properties.
(12) To require the protection of ground water.
(13) To require the disposal of salt water and oil field waste
so as not to damage land or property unnecessarily.
(14) To require that wells drilled for oil or gas be logged
adequately enough to identify the geologic formations penetrated
by the wells.
(15) To regulate the underground storage of natural gas and the
drilling and operation of any wells required therefor.
(16) To require the mitigation of off-site impacts of drilling
and to require reclamation for subsequent beneficial use of drill
sites and adjacent areas adversely affected by drilling or use of
the well and the filling of sumps.
(17) To require performance bonds or other forms of financial
security for compliance with the requirements of this chapter and
rules adopted or orders issued under this chapter.
(18) To regulate exploratory wells, including stratigraphic
wells and seismic program test wells, subject to the limitations
in ORS 520.027.
(19) To regulate geological, geophysical and seismic surveys
on, and operations to remove oil, gas and sulfur from, the tidal
submerged and submersible lands of this state under ORS 274.705
to 274.860.
SECTION 1202. ORS 520.097 is amended to read:
520.097. (1) For a period of two years from the date of
abandonment or completion of a well, all well logs and records
and well reports submitted to the { - State Department of
Geology and Mineral Industries - } { + Oregon Department of
Natural Resources + } are trade secrets under ORS 192.501 and are
not subject to public disclosure under ORS 192.410 to 192.505,
and all drill cuttings and cores may not be disclosed to the
public unless such protection is waived by the permittee or
disclosure is required by a court order.
(2) The department may extend the period under subsection (1)
of this section up to an additional five years on the request of
the permittee or the permittee's successor in interest.
SECTION 1203. ORS 520.125 is amended to read:
520.125. (1) The { - governing board of the State Department
of Geology and Mineral Industries - } { + Director of the
Oregon Department of Natural Resources + } may summon witnesses,
administer oaths and require the production of records, books and
documents for examination at any hearing or investigation
conducted before the
{ - board - } { + director for purposes related to the
administration and enforcement of this chapter + }.
(2) In case of failure or refusal on the part of any person to
comply with the subpoena issued by the { - board - }
{ + director + } or in the case of the refusal of any witness to
testify as to any matter regarding which the witness may lawfully
be interrogated it shall be the duty of the circuit court of any
county or any judge thereof, upon application of the
{ - board - } { + director + }, to issue an order to show
cause why such person should not be held for contempt as in the
case of disobedience of the requirements of a subpoena issued
from such court or a refusal to testify therein.
(3) The { - board - } { + director + } may, in any matter
before the
{ - board - } { + director + }, cause the depositions of
witnesses residing within or without the state to be taken in the
manner prescribed by law for like depositions in civil suits in
the circuit courts of this state.
SECTION 1204. ORS 520.145 is amended to read:
520.145. Any person adversely affected by any rule adopted by
the { - governing board of the State Department of Geology and
Mineral Industries under this chapter or any order issued by the
board or the State Department of Geology and Mineral
Industries - } { + Oregon Department of Natural Resources or
the Director of the Oregon Department of Natural Resources + }
under this chapter may obtain judicial review thereof pursuant to
ORS chapter 183.
SECTION 1205. ORS 520.175 is amended to read:
520.175. (1) Whenever it appears that any person is violating
or threatening to violate any provision of this chapter or any
rule adopted or order issued under this chapter, the
{ - governing board of the State Department of Geology and
Mineral Industries - } { + Director of the Oregon Department of
Natural Resources + } may bring an action against such person in
the circuit court of any county where the violation occurs or is
threatened, to restrain such person from continuing such
violation. In any such action, the court shall have jurisdiction
to grant to the { - board - } { + + } { + director + },
without bond or other undertaking, such temporary restraining
orders or final prohibitory and mandatory injunctions as the
facts may warrant, including any such orders restraining the
movement or disposition of oil or gas.
(2) If the { - board - } { + director + } fails to bring an
action to enjoin a violation or threatened violation of any
provision of this chapter or any rule adopted or order issued
under this chapter, within 60 days after receipt of a written
request to do so by any person who is or will be adversely
affected by such violation, then the person making such request
may bring an action to restrain such violation or threatened
violation in any court in which the { - board - }
{ + director + } might have brought such action. The
{ - board - } { + director + } shall be made a party
defendant in such action in addition to the person or persons
bringing the action and the action shall proceed and injunctive
relief may be granted without bond in the same manner as if the
action had been brought by the
{ - board - } { + director + }.
SECTION 1206. ORS 520.210 is amended to read:
520.210. (1) When necessary to prevent waste of oil or gas, to
avoid the drilling of unnecessary wells or to protect correlative
rights, the { - governing board of the State Department of
Geology and Mineral Industries - } { + Director of the Oregon
Department of Natural Resources + } shall establish spacing units
for a pool or field. Spacing units when established shall be of
uniform size and shape for the entire pool or field, except that
when found to be necessary for any of the above purposes the
{ - board - } { + director + } is authorized to divide any
pool or field into zones and establish spacing units for each
zone, which units may differ in size and shape from those
established in any other zone. The { - board - }
{ + director + } may not establish spacing units for injection
wells, withdrawal wells or monitoring wells drilled for the
purpose of storing gas or other gaseous substances, or wells
drilled for the underground disposal of fluids.
(2) The size and shape of spacing units shall be such as will
result in efficient and economical development of the pool or
field as a whole and the size thereof may not be smaller than the
maximum area that can be efficiently drained by one well.
(3) An order establishing spacing units for a pool or field
shall specify the size and shape of each unit and the location of
each permitted well thereon in accordance with a reasonably
uniform spacing plan. If an owner finds that a well drilled at
the prescribed location would not produce in paying quantities or
that surface conditions would substantially add to the burden or
hazard of drilling such well, then the owner may apply to the
{ - department - } { + Oregon Department of Natural
Resources + } for permission to drill a well at a location other
than that prescribed by such spacing order. The department shall
notify adjacent mineral owners of such application and any such
owner may request a hearing by the { - board - }
{ + director + } to consider the application. If no request for
a hearing is made in writing within 20 days, the department may
issue an order approving the drilling site. Any order by the
{ - board - } { + director + } or department under this
section shall include in the order suitable provisions to prevent
the production from the spacing unit of more than its just and
equitable share of the oil and gas in the pool.
(4) An order establishing spacing units for a pool or field
shall cover all lands determined or believed to be underlaid by
such pool or field and may be modified by the { - board - }
{ + director + } from time to time to include additional areas
determined to be underlaid by such pool or field. When necessary
to prevent waste of oil or gas, to protect correlative rights or
to provide for more efficient drainage, an order establishing
spacing units in a pool or field may be modified by the
{ - board - } { + director + } to increase the size of spacing
units for future wells in a pool or field or any zone thereof or
to permit the drilling of additional wells on a reasonably
uniform plan in such pool, field or zone.
SECTION 1207. ORS 520.220 is amended to read:
520.220. (1) When two or more separately owned tracts are
embraced within a spacing unit or when there are separately owned
interests in all or a part of such spacing unit, then the
interested persons may integrate their tracts or interests for
the development and operation of the spacing unit.
(2) In the absence of voluntary integration, the
{ - governing board of the State Department of Geology and
Mineral Industries - } { + Director of the Oregon Department of
Natural Resources + }, upon the application of any interested
person, shall make an order integrating all tracts or interests
in the spacing unit for the development and operation thereof and
for the sharing of production therefrom. The { - board - }
{ + director + }, as a part of the order establishing one or
more spacing units, may prescribe the terms and conditions upon
which the royalty interests in the units shall, in the absence of
voluntary agreement, be deemed to be integrated without the
necessity of a subsequent order integrating royalty interests.
Each such integration order shall be upon terms and conditions
that are just and reasonable.
SECTION 1208. ORS 520.230 is amended to read:
520.230. (1) An agreement for the unit or cooperative
development and operation of a field or pool in connection with
the conduct of repressuring or pressure maintenance operations,
cycling or recycling operations, including the extraction and
separation of liquid hydrocarbons from natural gas in connection
therewith, or any other method of operation, including water
floods, is authorized and may be performed and shall not be held
or construed to violate ORS 59.005 to 59.451, 59.710 to 59.830,
59.991 and 59.995 or any of the statutes of this state relative
to trusts, monopolies or contracts and combinations in restraint
of trade, if such agreement is approved by the { - governing
board of the State Department of Geology and Mineral
Industries - } { + Director of the Oregon Department of Natural
Resources + } as being in the public interest, for the protection
of correlative rights and reasonably necessary to increase
ultimate recovery or prevent waste of oil or gas. The failure to
submit such an agreement to the { - board - }
{ + director + } for approval does not, for that reason, imply
or constitute evidence that the agreement or operations conducted
pursuant thereto violate ORS 59.005 to 59.451, 59.710 to 59.830,
59.991 and 59.995 or any statute of this state now or hereafter
in effect relating to trusts and monopolies.
(2) An agreement for the unit or cooperative development or
operation of a field, pool or part thereof may be submitted to
the
{ - board - } { + director + } for approval as being in the
public interest or reasonably necessary to prevent waste or
protect correlative rights. Approval by the { - board - }
{ + director + } constitutes a complete defense to any
proceeding charging violation of ORS 59.005 to 59.451, 59.710 to
59.830, 59.991 and 59.995 or of any statute of this state now or
hereafter in effect relating to trusts and monopolies on account
thereof or on account of operations conducted pursuant thereto.
The failure to submit such an agreement to the { - board - }
{ + director + } for approval does not, for that reason, imply
or constitute evidence that the agreement or operations conducted
pursuant thereto violate ORS 59.005 to 59.451, 59.710 to 59.830,
59.991 and 59.995 or any statute of this state now or hereafter
in effect relating to trusts and monopolies.
SECTION 1209. ORS 520.260 is amended to read:
520.260. (1) The { - governing board of the State Department
of Geology and Mineral Industries - } { + Director of the
Oregon Department of Natural Resources + } upon { - its - }
{ + the director's + } own motion may, and upon the application
of any interested person shall, hold a hearing to consider the
need for the operation as a unit of one or more pools or parts
thereof in a field.
(2) The { - board - } { + director + } shall make an order
providing for the unit operation of a pool or part thereof if
{ - it - } { + the director + } finds that:
(a) Unit operation is reasonably necessary to effectively carry
on pressure control, pressure maintenance or repressuring
operations, cycling operations, water flooding operations,
injection operations, or any combination thereof, or any other
method of recovery designed to substantially increase the
ultimate recovery of oil from the pool or pools; and
(b) The value of the estimated additional recovery of oil or
gas exceeds the estimated additional cost incident to conducting
unit operations.
SECTION 1210. ORS 520.280 is amended to read:
520.280. (1) The allocation described in ORS 520.270 (3) shall
be in accord with the agreement, if any, of the interested
parties. If there is no such agreement, the { - governing board
of the State Department of Geology and Mineral Industries - }
{ + Director of the Oregon Department of Natural Resources + }
shall determine the relative value, from evidence introduced at
the hearing, of the separately owned tracts in the unit area,
exclusive of physical equipment, for development of oil and gas
by unit operations. The production allocated to each tract shall
be the proportion that the relative value of each tract so
determined bears to the relative value of all tracts in the unit
area.
(2) That portion of the unit production allocated to any tract,
and the proceeds from the sale thereof, are the property and
income of the several persons to whom, or to whose credit, they
are allocated or payable under the order providing for unit
operations.
SECTION 1211. ORS 520.290 is amended to read:
520.290. (1) No order of the { - governing board of the State
Department of Geology and Mineral Industries - } { + Director
of the Oregon Department of Natural Resources + } providing for
unit operations is effective until:
(a) The plan for unit operations prescribed by the
{ - board - } { + director + } under ORS 520.270 has been
approved in writing by (A) those owners who, under the
{ - board's - } { + director's + } order, will be required to
pay at least 75 percent of the costs of the unit operation, and
(B) those persons who, at the time of the order of the
{ - board - } { + director + }, owned of record legal title to
75 percent of royalty and overriding royalty payable with respect
to oil and gas produced from the pool or part thereof over the
entire unit area; and
(b) The { - board - } { + director + } has made a finding,
either in the order providing for unit operations or in a
supplemental order, that the plan for unit operations has been so
approved.
(2) If the plan for unit operations has not been approved
pursuant to subsection (1) of this section at the time the order
providing for unit operations is made, the { - board - }
{ + director + } shall upon application and notice hold such
supplemental hearings as are required to determine if and when
the plan for unit operations has been approved. If the persons
owning the percentage of interest in the unit area required by
subsection (1) of this section do not approve the plan for unit
operations within a period of six months after the date on which
the order providing for unit operations is made, the order is
ineffective and shall be revoked by the { - board - }
{ + director + } unless the { - board - } { + director + },
for good cause shown, extends the time for approval.
SECTION 1212. ORS 520.300 is amended to read:
520.300. An order providing for unit operations may be amended
by an order made by the { - governing board of the State
Department of Geology and Mineral Industries - } { + Director
of the Oregon Department of Natural Resources + } in the same
manner and subject to the same conditions as an original order
providing for unit operations. However:
(1) If the amendment affects only the rights and interests of
the owners, the approval of the amendment by the royalty owners
is not required.
(2) The order of amendment may not change the percentage for
the allocation of:
(a) Oil and gas as established for any separately owned tract
by the original order, except with the consent of all persons
owning oil and gas rights in the tract; or
(b) Cost as established for any separately owned tract by the
original order, except with the consent of all owners in the
tract.
SECTION 1213. ORS 520.310 is amended to read:
520.310. (1) The { - governing board of the State Department
of Geology and Mineral Industries - } { + Director of the
Oregon Department of Natural Resources + } by order may provide
for the unit operation of a pool or pools or parts thereof that
embrace a unit area established by a previous order of the
{ - board - } { + director + }. The order, in providing for
the allocation of unit production, shall first treat as a single
tract the unit area previously established, and the portion of
the unit production so allocated thereto shall then be allocated
among the separately owned tracts included in the previously
established unit area in the same proportions as those specified
in the previous order.
(2) An order may provide for unit operations on less than the
whole of a pool where the unit area is of such size and shape as
may reasonably be required for that purpose, and the conduct
thereof will have no adverse effect upon other portions of the
pool.
SECTION 1214. ORS 520.330 is amended to read:
520.330. All operations, including but not limited to the
commencement, drilling or operation of a well, upon any portion
of the unit area, are considered for all purposes the conduct of
such operations upon each separately owned tract in the unit area
by the several owners thereof. The portion of the unit production
allocated to a separately owned tract in a unit area, when
produced, is considered for all purposes to have been actually
produced from that tract by a well drilled thereon. Operations
conducted pursuant to an order of the { - governing board of
the State Department of Geology and Mineral Industries - }
{ + Director of the Oregon Department of Natural Resources + }
providing for unit operations constitute a fulfillment of all the
express or implied obligations of each lease or contract covering
lands in the unit area to the extent that compliance with such
obligations cannot be had because of the order of the
{ - board - } { + director + }.
SECTION 1215. ORS 520.350 is amended to read:
520.350. (1) All natural gas in an underground reservoir
utilized for underground storage, whether acquired by eminent
domain or otherwise, shall at all times be the property of the
natural gas company utilizing said underground storage, its
heirs, successors, or assigns. In no event shall such gas be
subject to the rights of the owner of the surface of the land
under which said underground reservoir lies or of the owner of
any mineral interest therein or of any person other than said
natural gas company, its heirs, successors and assigns to
release, produce, take, reduce to possessions, or otherwise
interfere with or exercise any control thereof.
(2) Any right of condemnation granted for the purposes of ORS
520.340, 772.610 to 772.625 and this section shall be without
prejudice to the rights of the owner of the condemned lands or of
the rights and interest therein to drill or bore through the
underground reservoir in such a manner as shall protect the
underground reservoir against pollution and against the escape of
natural gas in a manner which complies with the orders and rules
of the { - State Department of Geology and Mineral
Industries - } { + Oregon Department of Natural Resources + }.
Such condemnation shall be without prejudice to the owners of
such lands or other rights or interests therein as to all other
uses thereof. The additional costs of complying with rules or
orders to protect the underground shall be paid by the condemnor.
SECTION 1216. ORS 520.991 is amended to read:
520.991. Subject to ORS 153.022, violation of any provision of
this chapter, any rule adopted by the { - governing board of
the State Department of Geology and Mineral Industries - }
{ + Director of the Oregon Department of Natural Resources + }
under this chapter or any order issued by the { - board or the
State Department of Geology and Mineral Industries - }
{ + director + } under this chapter is punishable, upon
conviction, by a fine not exceeding $2,500 or imprisonment in the
county jail for a term not exceeding six months, or both.
SECTION 1217. ORS 522.005 is amended to read:
522.005. As used in this chapter, unless the context requires
otherwise:
{ - (1) 'Board' means the governing board of the State
Department of Geology and Mineral Industries. - }
{ - (2) - } { + (1) + } 'By-product' means any mineral or
minerals, exclusive of helium or of oil, hydrocarbon gas or other
hydrocarbon substances, that are found in solution or in
association with geothermal resources and that have a value of
less than 75 percent of the value of the geothermal resource or
are not, because of quantity, quality, or technical difficulties
in extraction and production, of sufficient value to warrant
extraction and production by themselves.
{ - (3) - } { + (2) + } 'Completed geothermal well' means a
well producing geothermal resources for which the operator has
received
{ - the department's - } written assurance { + from the
Oregon Department of Natural Resources + } that the manner of
drilling of and producing geothermal resources from the well are
satisfactory.
{ - (4) - } { + (3) + } 'Cooperative agreement' means an
agreement or plan of development and operation for the production
or utilization of geothermal resources in which separate
ownership units independently operate without allocation of
production.
{ - (5) - } { + (4) + } 'Correlative rights' means the
right of each owner in a geothermal area to obtain that owner's
just and equitable share of the underlying geothermal resource,
or an economic equivalent of that share of the resource, produced
in a manner and in an amount that does not injure the reservoir
to the detriment of others.
{ - (6) 'Department' means the State Department of Geology
and Mineral Industries. - }
{ - (7) - } { + (5) + } 'Drilling' includes drilling,
redrilling and deepening of a geothermal well.
{ - (8) - } { + (6) + } 'Enhanced recovery' means the
increased recovery from a reservoir achieved by artificial means
or by the application of energy extrinsic to the reservoir. The
artificial means include, but are not limited to, reinjection of
hot brine, fluid or water into a reservoir.
{ - (9) - } { + (7) + } 'Geothermal area' means any parcel
of land that is, or reasonably appears to be, underlaid by
geothermal resources.
{ - (10) - } { + (8) + } 'Geothermal reinjection well'
means any well or converted well constructed to dispose of
geothermal fluids derived from geothermal resources into an
underground reservoir.
{ - (11) - } { + (9) + } 'Geothermal resources' means the
natural heat of the earth, the energy, in whatever form, below
the surface of the earth present in, resulting from, or created
by, or that may be extracted from, the natural heat, and all
minerals in solution or other products obtained from naturally
heated fluids, brines, associated gases, and steam, in whatever
form, found below the surface of the earth, exclusive of helium
or of oil, hydrocarbon gas or other hydrocarbon substances, but
including, specifically:
(a) All products of geothermal processes, including indigenous
steam, hot water and hot brines;
(b) Steam and other gases, hot water and hot brines resulting
from water, gas, or other fluids artificially introduced into
geothermal formations;
(c) Heat or other associated energy found in geothermal
formations; and
(d) Any by-product derived from them.
{ - (12) - } { + (10) + } 'Geothermal well' includes any
excavation made for producing geothermal resources and any
geothermal reinjection well.
{ - (13) - } { + (11) + } 'Land' means both surface and
mineral rights.
{ - (14) - } { + (12) + } 'Operator' means the person:
(a) Who possesses the legal right to drill a geothermal well;
(b) Who has obtained a drilling permit pursuant to ORS 522.135;
or
(c) Who possesses the legal right to operate a completed
geothermal well or who has been granted the authority to operate
the well by that person.
{ - (15) - } { + (13) + } 'Prospect well' includes any well
drilled as a geophysical test well, seismic shot hole, mineral
exploration drilling, core drilling or temperature gradient test
well and drilled in prospecting for geothermal resources.
'Prospect well ' does not include a geothermal well.
{ - (16) - } { + (14) + } 'Reservoir' means an aquifer or
combination of aquifers or zones containing a common geothermal
or ground water resource. 'Reservoir' includes, but is not
limited to, a hot dry rock conductive system.
{ - (17) - } { + (15) + } 'Royalty interest' means a right
or interest in geothermal resources produced from land or in the
proceeds of the first sale of those resources.
{ - (18) - } { + (16) + } 'Unit agreement' means an
agreement or plan of development and operation developed under
the provisions of ORS 273.775, 308A.050 to 308A.128, 522.015,
522.405 to 522.545, 522.815 and 522.990 and this section for the
production or use of geothermal resources in separately owned
interests as a single consolidated unit and that provides for the
allocation of costs and benefits.
{ - (19) - } { + (17) + } 'Unit area' means the area
described in a unit agreement that constitutes the land subject
to development under the agreement.
{ - (20) - } { + (18) + } 'Unit operator' means the person
designated in the unit agreement to manage and conduct the
operation involving unitized land.
{ - (21) - } { + (19) + } 'Unit production' means all
geothermal resources produced from a unit area from the effective
date of a unit agreement approved by the { - board - }
{ + Director of the Oregon Department of Natural Resources + }
under ORS 522.405.
{ - (22) - } { + (20) + } 'Waste' means:
(a) Any physical waste, including, but not limited to,
underground waste resulting from the inefficient, excessive or
improper use or dissipation of reservoir energy or resulting from
the location, spacing, drilling, equipping, operation or
production of a geothermal resource well in such a manner that
reduces or tends to reduce the ultimate economic recovery of the
geothermal resources within a reservoir; and
(b) Surface waste resulting from the inefficient storage of
geothermal resources and the location, spacing, drilling,
equipping, operation or production of a geothermal resource well
in such a manner that causes or tends to cause the unnecessary or
excessive surface loss or destruction of geothermal resources
released from a reservoir.
{ - (23) - } { + (21) + } 'Working interest' means an
interest in geothermal resources or in land containing geothermal
resources that is held under a lease, operating agreement, fee
title or otherwise and under which, except as otherwise provided
in a unit or cooperative agreement, the owner of the interest has
the right to explore for, develop, produce or utilize the
resources. ' Working interest' does not include a right
delegated to a unit operator as such by a unit agreement.
SECTION 1218. ORS 522.015 is amended to read:
522.015. (1) The Legislative Assembly hereby finds and declares
that:
(a) The people of the State of Oregon have a direct and primary
interest in the development of geothermal resources situated in
this state.
(b) The State of Oregon, through the { - State Department of
Geology and Mineral Industries - } { + Oregon Department of
Natural Resources + }, shall control the drilling, redrilling and
deepening of wells for the discovery and production of geothermal
resources so that such wells will be constructed, operated,
maintained, plugged and decommissioned in the manner necessary to
safeguard the life, health, property and welfare of the people of
this state, to safeguard the air, water and other natural
resources of this state, and to encourage the maximum economic
recovery of geothermal resources therefrom.
(2) It is the policy of the Legislative Assembly that this
chapter be administered:
(a) To prevent damage to and waste of geothermal resources;
(b) To prevent interference with or damage to waters used or to
be used for beneficial purposes that may result from improper
drilling, operation, maintenance, plugging or decommissioning of
geothermal or prospect wells;
(c) To supervise the drilling, operation, maintenance, plugging
and decommissioning of geothermal or prospect wells in a manner
permitting the operator to utilize all methods known to the
industry for the purpose of increasing the ultimate economic
recovery of geothermal resources, that are suitable, and
consistent with protection of the air, water and other natural
resources of the state; and
(d) To provide for the development, management and production
of geothermal resources in a manner that minimizes state
involvement, enhances resource recovery, prevents waste,
maximizes economic development and protects correlative rights of
the resource owners.
SECTION 1219. ORS 522.019 is amended to read:
522.019. (1)(a) In order to accomplish the policy of ORS
522.015 all geothermal fluids derived from geothermal resources
shall be reinjected into the same reservoir from which withdrawn
unless it is determined by the { - State Department of Geology
and Mineral Industries - } { + Oregon Department of Natural
Resources + } that these policies and the public interest require
other disposal of the fluids.
(b) Subject to the determination in paragraph (a) of this
subsection, injection into other reservoirs or disposal by other
means may be allowed by the department in specific instances
where it is shown that such action is consistent with the
policies cited in this section. Disposal by other means may
include any secondary use of geothermal fluid after the primary
use of such fluid for electrical power generation or for other
direct application of the heat or other associated energy
contained in such fluids or for by-product extraction. Secondary
uses may include, but shall not be limited to, use of condensate
resulting from electrical power plant operations for
plant-cooling purposes, or use of such geothermal fluid for
agricultural, commercial or industrial purposes.
(2) The { - State Department of Geology and Mineral
Industries - } { + department + } shall adopt rules governing
the disposal by reinjection or other means of geothermal fluids
derived from geothermal resources from wells of 250 or more
degrees Fahrenheit bottom hole temperature or wells 2,000 or more
feet deep. The rules shall include standards whereby
contamination may be determined, construction standards for
reinjection wells, testing procedures for identifying aquifers,
standards and procedures for determining whether adjacent
aquifers are being degraded by the reinjection process,
guidelines for conservation of the resource, criteria for
evaluating reservoirs or zones for geothermal fluid disposal and
requirements for prior approval of all geothermal fluid
reinjection proposals.
(3) In addition to the permit required by ORS 522.115, an
operator of a geothermal well must obtain a water quality permit
from the Department of Environmental Quality under ORS 468B.050
or under rules authorized by ORS 468B.195 before injection of any
fluid, except well drilling fluids. Nothing in this chapter
limits the authority of the Department of Environmental Quality
to regulate the subsurface injection of fluids pursuant to ORS
468B.195, 468B.196 and 468B.197.
SECTION 1220. ORS 522.025 is amended to read:
522.025. (1) The provisions of this chapter relating to the
location and drilling of any well for the production of
geothermal resources do not apply to any wells producing
geothermal resources on July 1, 1975, or wells, other than
prospect wells, where:
(a) The geothermal fluids produced are of less than 250 degrees
Fahrenheit bottom hole temperature; or
(b) Such fluids have been appropriated pursuant to ORS 537.505
to 537.795 and 537.992.
(2) The provisions of this chapter relating to regulation of
production of geothermal resources from a geothermal reservoir
apply only to wells with a bottom hole temperature of at least
250 degrees Fahrenheit.
(3) If the bottom hole temperature of a well that was initially
at least 250 degrees Fahrenheit falls below 250 degrees
Fahrenheit, the { - State Geologist and the Water Resources
Director - } { + Director of the Oregon Department of Natural
Resources + }, after consulting with the well owner, shall
determine the agency with regulatory responsibility for that
specific well. This determination shall be documented in writing
and shall supersede a determination made under subsection (1) or
(2) of this section. This chapter does not limit the authority
of the { - Water Resources Department - } { + Oregon
Department of Natural Resources + } to regulate the appropriation
of water pursuant to ORS 537.505 to 537.795 and 537.992.
SECTION 1221. ORS 522.045 is amended to read:
522.045. Any well drilled under authority of this chapter from
which usable geothermal resources cannot be derived, or the owner
or operator has no intention of deriving usable geothermal
resources, and that is not expected to provide information useful
to the development of geothermal resources shall be plugged and
decommissioned as provided in this chapter or, upon the
operator's written application to the { - State Department of
Geology and Mineral Industries and with the concurrence and
approval of the Water Resources Director, jurisdiction over the
well may be transferred to the Water Resources Director and, in
such case - } { + Oregon Department of Natural Resources and
the approval of the Director of the Oregon Department of Natural
Resources + }, the well shall no longer be subject to the
provisions of this chapter but shall be subject to any applicable
laws and rules relating to wells drilled for appropriation and
use of ground waters. { - If an application is made to transfer
jurisdiction, a copy of all logs, records, histories and
descriptions shall be provided to the Water Resources Director by
the applicant. - }
SECTION 1222. ORS 522.055 is amended to read:
522.055. (1) No person shall engage in drilling a prospect well
without first obtaining a permit issued under the authority of
the { - State Department of Geology and Mineral Industries - }
{ + Oregon Department of Natural Resources + } and without
complying with the conditions of such permit.
(2) An application to drill prospect wells shall contain such
information as the department may require, including but not
limited to a plugging and decommissioning plan, and shall be
accompanied by a nonrefundable fee in the amount determined by
the department to be the estimated cost of review of the proposed
prospect wells. Each application may include up to five prospect
wells in a given project area. The amount of the fee may not
exceed $1,000 per five prospect wells. A permit to drill remains
valid until it is revoked or modified by the department based on
new information or changed conditions.
(3) The permittee shall provide an annual nonrefundable fee of
$500 on or before the anniversary of the issuance date of each
active permit.
(4) A request by a permittee to transfer a permit issued under
this section shall be accompanied by a nonrefundable fee of $500.
(5) All moneys received by the department under this section
shall be { - paid into the State Treasury and deposited in the
General Fund to the credit of the Geology and Mineral Industries
Account established by ORS 516.070. - } { + deposited in the
Oregon Natural Resources Fund. Moneys deposited in the fund under
this subsection are continuously appropriated to the department
for the purpose of carrying out the duties, functions and powers
of the department as prescribed by section 1 (8) of this 2011
Act. + }
SECTION 1223. ORS 522.065 is amended to read:
522.065. (1) Upon receipt of a complete application to drill
prospect wells, the { - State Department of Geology and Mineral
Industries shall circulate copies of the application to the Water
Resources Department, the Department of Environmental Quality,
the Department of Land Conservation and Development and the
Department of State Lands. The State Department of Geology and
Mineral Industries may circulate copies - } { + Oregon
Department of Natural Resources shall transmit a copy of the
application to the Department of Environmental Quality. The
Oregon Department of Natural Resources may circulate copies of
the application + } to other public agencies that may have an
interest in the permit application.
(2) Any public agency receiving a copy of the application as
provided in subsection (1) of this section may suggest conditions
under which a permit should be granted. A public agency shall
submit any suggested conditions to the { - State Department of
Geology and Mineral Industries - } { + Oregon Department of
Natural Resources + } within 45 days of the public agency's
receipt of the copy of the application. The department shall
consider any suggested conditions that a public agency submits to
the department within the 45-day period.
(3) A permit issued under this section is subject to such
conditions as the { + Oregon + } Department { + of Natural
Resources + } may impose. Included among the conditions shall be
provision for the proper and safe plugging and decommissioning of
each prospect well. Subject to ORS 522.075, the department shall
issue or deny the permit by a written order within 60 days after
receipt of a complete application unless the department
determines that a longer period is necessary to respond to
comments or new information or for other good cause.
SECTION 1224. ORS 522.075 is amended to read:
522.075. (1)(a) The { - State Department of Geology and
Mineral Industries - } { + Oregon Department of Natural
Resources + } may not issue a permit for a prospect well until
the applicant has provided a bond or alternative form of
financial security as specified in rules adopted by the
{ - governing board of the State Department of Geology and
Mineral Industries - } { + Director of the Oregon Department of
Natural Resources + }.
(b) The amount of the bond or alternative form of financial
security may not be less than $10,000 for each prospect well or
not less than $50,000 for all prospect wells to be drilled.
(2) The bond or alternative form of financial security must be
conditioned upon compliance with the requirements of this chapter
and rules adopted and orders issued pursuant to this chapter and
must secure the state against all losses, charges and expenses,
including court costs and attorney fees, incurred by the state in
obtaining such compliance.
(3) With the consent of the department, any bond or acceptable
alternative form of financial security submitted pursuant to this
section may be terminated or canceled. However, the department
may not consent to the termination or cancellation of any bond or
security until each prospect well covered by such bond or
security has been properly and safely plugged and decommissioned
pursuant to the plan required by the permit or until another bond
or security for each well has been submitted and approved by the
department.
SECTION 1225. ORS 522.080 is amended to read:
522.080. In addition to any other liability imposed by law, the
operator of a prospect well shall be liable to any person or
public agency that sustains damages from failure of the operator
to comply with:
(1) A condition in a permit requiring the operator to provide
for the protection of ground water in the area affected by the
well; or
(2) Any rules of the { - governing board of the State
Department of Geology and Mineral Industries - } { + Director
of the Oregon Department of Natural Resources + } establishing
standards for blowout prevention, equipment and casing design and
removal, and any other procedures necessary to shut out
detrimental substances from strata containing ground or surface
water usable for beneficial purposes.
SECTION 1226. ORS 522.085 is amended to read:
522.085. Upon completion of all drilling and testing undertaken
pursuant to an application to drill prospect wells, the applicant
shall file with the { - State Department of Geology and Mineral
Industries - } { + Oregon Department of Natural Resources + } a
report certifying the completion of the plugging and
decommissioning plan required by the permit.
SECTION 1227. ORS 522.115 is amended to read:
522.115. (1) No person shall engage in the drilling or
operating of any geothermal well without first obtaining a permit
issued under the authority of the { - State Department of
Geology and Mineral Industries - } { + Oregon Department of
Natural Resources + }, and without complying with the conditions
of such permit.
(2) An application for a permit shall contain:
(a) The location and elevation of the floor of the proposed
derrick.
(b) The number or other designation approved by the department
by which the well shall be known.
(c) The applicant's estimate of the depths to be drilled.
(d) The nature and character of the geothermal resource sought.
(e) A reclamation plan for the well pad.
(f) Such other information as the { - governing board of the
State Department of Geology and Mineral Industries - }
{ + Director of the Oregon Department of Natural Resources + }
by rule may require.
(3) An application for a permit shall be accompanied by a
nonrefundable fee of $2,000.
(4) The permittee shall provide an annual nonrefundable renewal
fee on or before the anniversary of the issuance date of each
active permit as follows:
(a) $1,500 for the first renewal year.
(b) $500 for each subsequent renewal year.
(5) A request by a permittee to modify a permit shall be
accompanied by a nonrefundable fee not to exceed $1,500.
(6) A request by a permittee to transfer a permit issued under
this section shall be accompanied by a nonrefundable fee of $500.
(7) A request by a permittee to plug and decommission a
geothermal well shall be accompanied by a nonrefundable fee of
$1,000.
(8) All moneys received by the department under this section
shall be { - paid into the State Treasury and deposited in the
General Fund to the credit of the Geology and Mineral Industries
Account established by ORS 516.070. - } { + deposited in the
Oregon Natural Resources Fund. Moneys deposited in the fund under
this subsection are continuously appropriated to the department
for the purpose of carrying out the duties, functions and powers
of the department as prescribed by section 1 (8) of this 2011
Act. + }
SECTION 1228. ORS 522.125 is amended to read:
522.125. (1) Upon receipt of a complete application for a
permit to drill or operate a geothermal well, the { - State
Department of Geology and Mineral Industries shall circulate
copies of the application to the Water Resources Department, the
State Department of Fish and Wildlife, the Department of
Environmental Quality, the State Parks and Recreation Department,
the Department of Land Conservation and Development, the State
Department of Energy, the Department of State Lands - }
{ + Oregon Department of Natural Resources shall transmit copies
of the application to the Department of Environmental Quality,
the State Department of Energy + } and the governing body of the
county and the geothermal heating district in which the well will
be located. The
{ - State Department of Geology and Mineral Industries - }
{ + Oregon Department of Natural Resources + } may circulate
copies to other public agencies that have an interest in the
application.
(2) Any public agency receiving a copy of the application as
provided in subsection (1) of this section may suggest conditions
under which a permit should be granted. A public agency shall
submit any suggested conditions to the { - State Department of
Geology and Mineral Industries - } { + Oregon Department of
Natural Resources + } within 45 days of the public agency's
receipt of the copy of the application. The department shall
consider any suggested conditions that a public agency submits to
the department within the 45-day period.
SECTION 1229. ORS 522.135 is amended to read:
522.135. (1) Within 60 days after receipt of a complete
application for a permit to drill or operate a geothermal well,
the { - State Department of Geology and Mineral Industries - }
{ + Oregon Department of Natural Resources + } shall by order
issue or deny the permit unless the department determines that a
longer period is necessary to respond to comments or new
information or for other good cause.
(2) Except as provided in ORS 522.145, the department shall
issue the permit if, after receipt of comments from the agencies
referred to in ORS 522.125, the department determines that
issuance of the permit would be consistent with the provisions of
this chapter and ORS chapters 468A, 468B and 537, any rule
adopted under this chapter by the { - governing board of the
State Department of Geology and Mineral Industries, any rule
adopted by the Water Resources Commission under ORS chapter 537
and any rule adopted under ORS chapter 468 or 468B by the
Environmental Quality Commission - } { + Director of the Oregon
Department of Natural Resources, ORS chapter 537 by the Oregon
Natural Resources Commission or ORS chapter 468 or 468B by the
Environmental Quality Commission + }.
(3) If the department issues a permit pursuant to this section,
the department shall impose such conditions as the department
considers necessary to carry out the provisions of this chapter
and ORS chapters 468A, 468B and 537 { - , any rule adopted under
this chapter by the governing board of the department, any rule
adopted by the Water Resources Commission under ORS chapter 537
and any rule adopted under ORS chapter 468 or 468B by the
Environmental Quality Commission - } { + or any rule adopted
under this chapter or ORS chapter 468, 468B or 537 + }. The
department shall include in the permit a statement that issuance
of the permit does not relieve any person from any obligation to
comply with ORS 468B.035, 468B.050, 468B.195, 537.090 or 537.535
or any other applicable state or federal environmental laws.
(4) The { - State Geologist - } { + Director of the Oregon
Department of Natural Resources + } shall incorporate into the
permit requirements:
(a) Any conditions { - made by the Water Resources
Director - } necessary to comply with the purposes set forth in
ORS 537.525; and
(b) Any conditions made by the Department of Environmental
Quality necessary to comply with the purposes set forth in ORS
468A.010 and 468B.015.
(5) Drilling, redrilling or deepening must begin within one
year after the date of permit issuance or the permit shall
expire. However, the { - State Department of Geology and
Mineral Industries - } { + Oregon Department of Natural
Resources + } may extend the unused permit for a reasonable
period not to exceed one year beyond the initial one-year period
upon receipt of a written request from the permittee before the
expiration date of the permit. The request shall be accompanied
by the nonrefundable fee specified in ORS 522.115.
SECTION 1230. ORS 522.145 is amended to read:
522.145. (1)(a) The { - State Department of Geology and
Mineral Industries - } { + Oregon Department of Natural
Resources + } may not issue a permit for a geothermal well until
the applicant has provided a bond or alternative form of
financial security as specified in rules adopted by the
{ - governing board of the State Department of Geology and
Mineral Industries - } { + Director of the Oregon Department of
Natural Resources + }.
(b) The amount of the bond or alternative form of financial
security may not be less than $25,000 for each well or not less
than $150,000 for all wells to be drilled.
(2) The bond or alternative form of financial security must be
conditioned upon compliance with the requirements of this chapter
and rules adopted and orders issued pursuant to this chapter and
must secure the state against all losses, charges and expenses,
including court costs and attorney fees, incurred by the state in
obtaining such compliance.
(3) With the consent of the department, any bond or acceptable
alternative form of financial security submitted pursuant to this
section may be terminated or canceled. However, the department
may not consent to the termination or cancellation of any bond or
security until each geothermal well covered by such bond or
security has been properly and safely plugged and decommissioned
pursuant to the plan required by the permit or until another bond
or security for each well has been submitted and approved by the
department.
SECTION 1231. ORS 522.155 is amended to read:
522.155. In addition to any other liability imposed by law, the
operator of a geothermal well shall be liable to any person or
public agency that sustains damages from failure of the operator
to comply with:
(1) A condition in a permit requiring the operator to provide
for the protection of ground water in the area affected by the
well; or
(2) Any rules of the { - governing board of the State
Department of Geology and Mineral Industries - } { + Director
of the Oregon Department of Natural Resources + } establishing
standards for blowout prevention, equipment and casing design and
removal, and any other procedures necessary to shut out
detrimental substances from strata containing ground or surface
water usable for beneficial purposes.
SECTION 1232. ORS 522.175 is amended to read:
522.175. (1) No person shall abandon a geothermal well without
first plugging and decommissioning the well in conformance with a
plugging and decommissioning plan approved by the { - State
Department of Geology and Mineral Industries - } { + Oregon
Department of Natural Resources + } and complying with the
provisions of ORS 522.245.
(2) The { - governing board of the department - }
{ + Director of the Oregon Department of Natural Resources + }
shall adopt rules designed to:
(a) Protect underground and surface water usable for beneficial
purposes from pollution resulting from infiltration or addition
of any detrimental substance;
(b) Prevent the escape of all fluids to the surface;
(c) Close the surface aperture of the well; and
(d) Remove all surface equipment except that necessary to
maintain permanent closure of the well.
SECTION 1233. ORS 522.195 is amended to read:
522.195. Except as excluded by rule adopted by the
{ - governing board of the State Department of Geology and
Mineral Industries - } { + Director of the Oregon Department of
Natural Resources + }, the operator of any completed geothermal
well shall file with the
{ - department - } { + Oregon Department of Natural
Resources + } a monthly statement of the geothermal resources
production from such well during the preceding calendar month.
SECTION 1234. ORS 522.205 is amended to read:
522.205. (1) Except as excluded from the provisions of this
section by rule of the { - governing board of the State
Department of Geology and Mineral Industries - } { + Director
of the Oregon Department of Natural Resources + }, any
prospective operator of a geothermal well shall notify the
{ - department - } { + Oregon Department of Natural
Resources + } in such form as the department may direct of the
purchase, assignment, transfer, conveyance or exchange of the
well within 45 days of the purchase and shall accompany such
notice with an application for transfer of the permit for the
particular well. The application must include the transfer fee
specified in ORS 522.115.
(2) Any buyer of land on which a geothermal well is located
shall notify the department of the purchase, assignment,
transfer, conveyance or exchange of the land upon which such well
is situated within 45 days of such purchase.
SECTION 1235. ORS 522.215 is amended to read:
522.215. (1) No operator shall suspend drilling or operation of
a geothermal well without obtaining permission from the
{ - State Department of Geology and Mineral Industries - }
{ + Oregon Department of Natural Resources + }.
(2) The department may authorize an operator to suspend for a
specific period operations or remove equipment from an
uncompleted geothermal well upon such terms as the department may
specify, upon written application of the operator and an
affidavit showing good cause therefor.
(3) Within a period of six months from the ending date
specified for such suspension, the operator may make written
application for an extension of suspension and file it with an
affidavit showing good cause for such an extension. Upon a
finding that the extension is merited, the { - governing board
of the department - } { + Director of the Oregon Department of
Natural Resources + } may extend the suspension for an additional
specific period.
(4) If, after suspension, operations are not resumed by the
operator within six months from the ending date specified for the
suspension or extension thereof, an intention to abandon and
unlawful abandonment shall be presumed.
(5) Whenever an operator whose operations have been suspended
fails to comply with such terms as the department may specify in
its authorization, the geothermal well shall be presumed
unlawfully abandoned. A well shall also be deemed unlawfully
abandoned, if, without notice to the department, any drilling or
producing equipment is removed.
(6) An unlawful abandonment shall be declared by order of the
{ - board - } { + director + }, and written notice thereof
shall be mailed by registered mail or by certified mail with
return receipt both to such operator at the last-known
post-office address of the operator, to the registered agent of
the operator, if any, and to the operator's sureties.
(7) After declaration of unlawful abandonment, the
{ - board - } { + director + } may proceed against the
operator and the surety of the operator as provided for in ORS
522.145 and may bring suit pursuant to ORS 522.810 or take any
other enforcement or recovery action authorized by law.
SECTION 1236. ORS 522.225 is amended to read:
522.225. (1) Before commencing any operation to discontinue the
use of a geothermal well, the operator shall give notice to the
{ - State Department of Geology and Mineral Industries - }
{ + Oregon Department of Natural Resources + } of the intention
to plug and decommission the well and the date upon which the
work will begin.
(2) Such notice shall be given at least 24 hours before the
commencement of plugging and decommissioning operations and shall
indicate:
(a) The condition of the well;
(b) The proposed method of the plugging and decommissioning
operation; and
(c) Any additional information that may be required by the
department.
SECTION 1237. ORS 522.245 is amended to read:
522.245. (1) A representative of the { - State Department of
Geology and Mineral Industries - } { + Oregon Department of
Natural Resources + } may be present during any operation to plug
and decommission a geothermal well. If the representative
determines that the plugging and decommissioning is satisfactory,
the representative shall approve the plugging and decommissioning
of the well.
(2) Within 45 days after the completion of the plugging and
decommissioning of any geothermal well, the operator of the well
shall make a written report of all work done. Within 45 days
after the receipt of the report, the department shall furnish the
operator with a written final approval of the plugging and
decommissioning or a written disapproval setting forth the
conditions upon which the disapproval is based.
(3) Failure to plug and decommission in accordance with the
approved method, failure to submit to the department any notice
or report required by this chapter or failure to furnish the
department with any required information shall constitute
sufficient grounds for disapproval of the plugging and
decommissioning and shall constitute unlawful abandonment of the
well.
(4) When the department has issued a written disapproval of the
plugging and decommissioning, the { - governing board of the
department - } { + Director of the Oregon Department of Natural
Resources + } may proceed against the operator and the surety of
the operator as provided for in ORS 522.145 and may bring suit
pursuant to ORS 522.810 or take any other enforcement or recovery
action authorized by law.
SECTION 1238. ORS 522.255 is amended to read:
522.255. If interference between an existing geothermal well
permitted under this chapter and an existing water appropriation
permitted under ORS chapter 537 is found by { - either the
State Geologist or the Water Resources Director, the State
Geologist and the Water Resources Director shall work
cooperatively to - } { + the Director of the Oregon Department
of Natural Resources, the director shall + } resolve the conflict
and develop a cooperative management program for the area. In
determining what action should be taken, { - they - } { + the
director + } shall consider the following goals:
(1) Achieving the most beneficial use of the water and heat
resources;
(2) Allowing all existing users of the resources to continue to
use those resources to the greatest extent possible; and
(3) Insuring that the public interest in efficient use of water
and heat resources is protected.
SECTION 1239. ORS 522.305 is amended to read:
522.305. (1) In accordance with the applicable provisions of
ORS chapter 183, the { - governing board of the State
Department of Geology and Mineral Industries - } { + Director
of the Oregon Department of Natural Resources + } may adopt rules
necessary to implement the provisions of this chapter. This
authority includes, but is not limited to, rules relating to:
(a) Establishing procedures for the issuance, modification,
transfer, denial, suspension and revocation of permits;
(b) Establishing procedures for enforcing permit conditions,
for enforcing the requirements of this chapter and for enforcing
rules adopted to implement the provisions of this chapter; and
(c) Establishing civil penalties for violations of this
chapter, for violations of rules adopted to implement the
provisions of this chapter and for violations of permits and
orders issued pursuant to this chapter.
(2) Any final determination made by the { - State Department
of Geology and Mineral Industries - } { + Oregon Department of
Natural Resources + } in carrying out the provisions of this
chapter or in rules adopted thereunder may be reviewed in the
manner provided by the applicable provisions of ORS chapter 183.
SECTION 1240. ORS 522.315 is amended to read:
522.315. Whenever the { - State Department of Geology and
Mineral Industries - } { + Oregon Department of Natural
Resources + } gives any written direction concerning any
geothermal well and the operator requests in writing that a final
order for purposes of ORS chapter 183 be made, the department
shall, within 15 days after receipt of the notice, deliver such
final written order to the operator.
SECTION 1241. ORS 522.325 is amended to read:
522.325. (1) The operator of any geothermal well shall within
15 days from the date of the service of any order, either comply
with the order or file with the { - State Department of Geology
and Mineral Industries - } { + Oregon Department of Natural
Resources + } a written statement that the order is not
acceptable, and the reasons therefor, and the statement shall
constitute an appeal from such order to the { - governing board
of the department - } { + Director of the Oregon Department of
Natural Resources + }.
(2) Any final written order of the { - board - }
{ + director + } may be appealed in the manner provided in ORS
chapter 183 for appeals from final orders in contested cases.
SECTION 1242. ORS 522.355 is amended to read:
522.355. (1) The operator of any geothermal well shall keep, or
cause to be kept, a careful and accurate log, core record and
history of the drilling of the well.
(2) The log referred to in subsection (1) of this section shall
show the character and depth of each formation encountered in the
drilling of the well; the amount, size and weight of casing used;
and the location, depth and temperature of water-bearing strata,
including the temperature, chemical composition and other
chemical and physical characteristics of fluid encountered from
time to time, so far as determined.
(3) The core record referred to in subsection (1) of this
section shall show the depth, character and fluid content of
cores obtained, so far as determined from the study and analysis
thereof.
(4) The history referred to in subsection (1) of this section
shall show the location and amount of sidetracked casings, tools
or other material; the depth and quantity of cement in cement
plugs; the shots of dynamite or other explosives used; the
results of production and other tests during drilling operations;
and completion data.
(5) The log referred to in subsections (1) and (2) of this
section shall be kept in the local office of the operator and,
together with the tour reports of the operator, shall be subject,
during business hours, to inspection by the { - governing board
of the State Department of Geology and Mineral Industries, or the
department - } { + Director of the Oregon Department of Natural
Resources or an authorized representative of the director + }.
(6) The operator of any geothermal well shall, in addition to
furnishing the log, records, and tests required by this section,
collect representative drill cuttings. The operator shall
additionally, in the event cores are taken, collect
representative core samples. The drill cuttings and core samples
shall be filed with the { - department - } { + Oregon
Department of Natural Resources + } promptly upon completion or
upon its written request, and upon plugging and decommissioning
or upon suspension of operations for a period of at least six
months.
SECTION 1243. ORS 522.365 is amended to read:
522.365. (1) Each operator of any geothermal well or the
designated agent of the operator shall file with the { - State
Department of Geology and Mineral Industries - } { + Oregon
Department of Natural Resources + } a copy of the log, history
and core record, or any portion thereof, promptly upon
completion, or upon the written request of the department at any
time after the commencement of the work of drilling any
geothermal well, and upon plugging and decommissioning or upon
suspension of operations for a period of at least six months.
(2) For a period of four years after the receipt of any log,
history, core record, or any portion thereof, such record shall
be exempt from disclosure as a trade secret pursuant to ORS
192.501 unless the operator gives approval to release the data.
SECTION 1244. ORS 522.405 is amended to read:
522.405. (1) When two or more separately owned tracts of land
are within an area under which a reservoir is located or
reasonably believed to be located, or when there are separately
owned interests in all or part of such an area, the
{ - governing board of the State Department of Geology and
Mineral Industries, upon its - } { + Director of the Oregon
Department of Natural Resources upon the director's + } own
motion may { + , + } or upon the application of an interested
person or state or local governmental governing body, special
district or agency { - , - } shall { + , + } review the need
for unitization of the area. The { - board - }
{ + director + } by rule or order may require the development of
a unit agreement for the geothermal resource area if it finds:
(a) Unitized management, operation and development of the
geothermal resources in a reservoir is necessary to increase the
ultimate recovery of the resources;
(b) The application of unitized methods of operation will
prevent waste and aid efficient production and utilization of the
resource; or
(c) Unitization and the unitized method of operation are in the
public interest and reasonably necessary to protect the
correlative rights of owners.
(2) When the { - board - } { + director + } requires the
development of a unit agreement under this section, { - it - }
{ + the director + } shall encourage the development of a
voluntary agreement between the affected parties. In the absence
of a voluntary agreement, the
{ - board - } { + director + } shall { - itself - }
develop or cause to be developed a unit agreement that satisfies
the provisions of ORS 273.775, 308A.050 to 308A.128, 522.005,
522.015, 522.405 to 522.545, 522.815 and 522.990. In adopting a
rule or entering an order for a unit agreement, the
{ - board - } { + director + } shall consider any plant
dedicated area agreement in effect and shall not contravene or
interfere with that agreement unless { - it - } { + the
director + } finds that a term or condition of that agreement
violates the policies stated in ORS 522.015. The { - board - }
{ + director + } shall require the development of the resource
in accordance with a proposed unit agreement if
{ - it - } { + the director + } finds that the agreement
conforms with the provisions of ORS 273.775, 308A.050 to
308A.128, 522.005, 522.015, 522.405 to 522.545, 522.815 and
522.990.
(3) The development of a unit agreement under subsections (1)
and (2) of this section shall be conducted as a rulemaking
proceeding in accordance with ORS chapter 183 unless an
interested party requests that it be conducted as a contested
case in accordance with ORS chapter 183. In either event, notice
shall be given in accordance with the applicable provisions of
ORS chapter 183.
(4) As used in this section, 'plant dedicated area agreement'
means a contractual relationship in geothermal energy development
between a geothermal resource owner and a customer which makes a
specific surface area and related resource base available
exclusively to that customer.
SECTION 1244a. ORS 522.415 is amended to read:
522.415. A voluntary { - or board-sponsored - } unit
agreement { + , or a unit agreement sponsored by the Director of
the Oregon Department of Natural Resources, that is + } developed
in response to a rule adopted or an order issued under ORS
522.405 shall provide a unit operation plan that includes:
(1) A description of the geothermal reservoir and the
overlaying land to be operated as a unit.
(2) A statement of the nature of the operations contemplated.
(3) A provision for credits and charges to be made in the
adjustment among the owners in a unit area for their respective
investments in geothermal wells, prospect wells, machinery,
materials and equipment used in the unit operation.
(4) The division of interest or a formula for apportionment of
unit production among the separately owned tracts within the unit
area which reasonably permits a person or state or local
governing body, special district or agency otherwise entitled to
share in or benefit by production from a tract to receive an
equitable and reasonable share of the unit production or other
benefit. An equitable and reasonable share of unit production is
measured by the proportion the value of the separately owned
tract for geothermal resources recovery bears to the value of the
unit for that purpose, taking acreage into account.
(5) Provisions which state how the costs will be paid, how unit
production is to be measured and when, how and by whom unit
production is to be allocated. The provision shall provide that
unit production due to an owner who does not pay that owner's
share of the cost of unit operation or that owner's interest may
be sold and the proceeds applied to the cost.
(6) A provision, if necessary, for making financing available
to any person or state or local governing body, special district
or agency that wishes to obtain financing. The provision shall
allow a reasonable interest charge for the service payable out of
that respective share of production.
(7) A provision for the supervision and conduct of the unit
operation. Each person or state or local governing body, special
district or agency shall have a vote on the provision with a
weight corresponding to the percentage of the cost of unit
operation chargeable against that respective interest.
(8) The time when the unit operation shall begin and the manner
and circumstances under which the unit operation shall terminate.
(9) Provisions, if necessary, for the protection of preexisting
water users within the unit area and for administration of future
water development from the reservoir covered by the unit
agreement.
SECTION 1245. ORS 522.425 is amended to read:
522.425. Any rule or order of the { - governing board of the
State Department of Geology and Mineral Industries - }
{ + Director of the Oregon Department of Natural Resources + }
providing for the unit operation of a geothermal resource area
may include provisions for:
(1) Division of a reservoir into zones;
(2) Establishment of spacing units, including a description of
their location, size and shape;
(3) The integration of separately owned tracts or interests
within a spacing unit, the development and operation of the
spacing unit and the sharing of production;
(4) The protection of existing and future beneficial uses of
water;
(5) Maintenance of the renewability of geothermal resources and
any other natural resources; and
(6) Any additional provisions the { - board - }
{ + director + } considers necessary for carrying out the
provisions of this chapter or for protection of the public
health, safety and welfare.
SECTION 1246. ORS 522.435 is amended to read:
522.435. Any rule adopted or order entered under ORS 522.405
shall supersede any right or privilege previously granted by the
{ - governing board of the State Department of Geology and
Mineral Industries - } { + Director of the Oregon Department of
Natural Resources + } to the same person or state or local
governing body, special district or agency with respect to the
reservoir.
SECTION 1247. ORS 522.445 is amended to read:
522.445. (1) No rule or order of the { - governing board of
the State Department of Geology and Mineral Industries which - }
{ + Director of the Oregon Department of Natural Resources
that + } creates a unit and prescribes a unitization plan and no
applicable unit agreement shall be effective unless the plan of
unit operation required by the { - board - } { + director + }
under ORS 522.405 has been approved in writing by:
(a) The operators who will be required to pay under the
{ - board's - } { + director's + } rule or order at least 75
percent of the unit operation costs; and
(b) The persons or state or local governing body, special
district or agency that, at the time of the { - board - }
{ + director's + } rule or order, own record legal title to 75
percent of the royalties payable with respect to the geothermal
resource produced from the unit area.
(2) If the royalty owners who own the required percentage
interest in the unit area and the operators have not approved the
unitization plan within six months of the date on which the rule
or order creating the unit is adopted or entered, that rule or
order shall become ineffective and shall be considered to have
been repealed or revoked by the { - board - }
{ + director + }.
SECTION 1248. ORS 522.455 is amended to read:
522.455. (1) Any person or state or local governing body,
special district or agency with an interest in geothermal
resources within an area to be designated as a unit that is
adversely affected by any rule or order of the { - governing
board of the State Department of Geology and Mineral
Industries - } { + Director of the Oregon Department of Natural
Resources + } may apply to the
{ - board - } { + director + } for a rehearing within 30 days
after the adoption of the rule or entry of the order. The
{ - board - } { + director + } shall decide within 45 days
after the filing date of the rule or order whether to grant a
rehearing. If granted, the rehearing shall be held without undue
delay. Failure to act within the 45-day period constitutes
approval of the rehearing request.
(2) Any person or state or local governing body, special
district or agency that holds a working interest in geothermal
resources in a designated or proposed unit area that is adversely
affected by any rule promulgated or order entered by the
{ - board - } { + director + } may obtain judicial review of
the rule or order pursuant to ORS chapter 183.
SECTION 1249. ORS 522.465 is amended to read:
522.465. As part of a proposed rule or order designating a unit
area and approving a unitization plan or as part of a unit
agreement, the working interest owners under the agreement,
within the time specified by the { - governing board of the
State Department of Geology and Mineral Industries - }
{ + Director of the Oregon Department of Natural Resources + },
shall appoint the unit operator. If the working interest owners
do not make the appointment within the specified time, the
{ - board - } { + director + } shall appoint the unit
operator.
SECTION 1250. ORS 522.475 is amended to read:
522.475. (1) Any disagreement with respect to the unit
operation between persons or between persons and state or local
governing bodies, special districts or agencies owning any
interest in the geothermal resources in a unit area, or between
persons or state and local governing bodies, special districts or
agencies owning an interest in geothermal resources in a unit
area and a unit operator, including a dispute over replacement of
a unit operator, may be submitted to the { - governing board of
the State Department of Geology and Mineral Industries - }
{ + Director of the Oregon Department of Natural Resources + }
for its review and decision.
(2) The { - board - } { + director's + } decision under
this section may be appealed to the Court of Appeals. The appeal
must be filed within 60 days of the date of the { - board's - }
{ + director's + } decision.
SECTION 1250a. ORS 522.495 is amended to read:
522.495. Any operation on any portion of the unit area,
including, but not limited to, the drilling or operation of a
well, is considered for all purposes the conduct of the same
operation on the whole unit area. The portion of unit production
allocated to a separately owned tract in a unit area is
considered for all purposes to actually have been produced from a
well drilled upon that tract. An operation conducted pursuant to
a
{ - board - } rule adopted or { + an + } order issued { + by
the Director of the Oregon Department of Natural Resources + }
under ORS 522.405 constitutes a fulfillment of all express or
implied obligations under each lease or contract covering lands
in the unit area.
SECTION 1250b. ORS 522.505 is amended to read:
522.505. (1) The operation of a geothermal well in a unit area
by anyone other than by a person or state or local governing
body, special district or agency acting under the unit's
authority shall be unlawful. That operation is prohibited from
the effective date of the { - board - } rule or order { + of
the Director of the Oregon Department of Natural Resources + }
creating the unit and prescribing the unitization plan or the
unit agreement, except in the manner and to the extent provided
in the unitization plan or agreement.
(2) The provisions of ORS 273.775, 308A.050 to 308A.128,
522.005, 522.015, 522.405 to 522.545, 522.815 and 522.990 shall
not affect the ability of a ground water user to exercise a water
right that existed before the initiation of a unit agreement.
SECTION 1250c. ORS 522.515 is amended to read:
522.515. (1) A unit agreement or unitization plan under a
{ - board - } rule adopted or { + an + } order issued { + by
the Director of the Oregon Department of Natural Resources + }
pursuant to ORS 522.405 shall not be held or construed to violate
ORS 59.005 to 59.451, 59.710 to 59.830, 59.991 and 59.995 or any
state statute relating to trusts, monopolies or contracts and
combinations in restraint of trade if the { - board - }
{ + director + } has made a finding that the agreement is in the
public interest for the protection of correlative rights and is
necessary to enhance recovery of geothermal resources or to
prevent waste.
(2) Any voluntary unit agreement or plan for unitization
between owners, holders of working interests and holders of
royalty interests for the exploration, development and operation
of a unit area shall not be held or construed to violate ORS
59.005 to 59.451, 59.710 to 59.830, 59.991 and 59.995 or any
state statute relating to trusts, monopolies or contracts and
combinations in restraint of trade if the agreement is approved
by the { - board - } { + director + } as being in the public
interest for the protection of correlative rights and necessary
to enhance recovery of geothermal resources or to prevent waste.
(3) A voluntary agreement may be submitted to the
{ - board - } { + director + } for approval as being in the
public interest for the protection of correlative rights and
necessary to enhance recovery of geothermal resources or to
prevent waste. { - Board - } { + The director's + } approval
constitutes a complete defense to any proceeding charging
violation of ORS 59.005 to 59.451, 59.710 to 59.830, 59.991 and
59.995 or of any state statute relating to trusts or monopolies
on account of operations conducted pursuant to the agreement.
(4) The failure to submit a voluntary agreement for
{ - board - } approval { + by the director + } does not
constitute evidence that the agreement or operation violates ORS
59.005 to 59.451, 59.710 to 59.830, 59.991 and 59.995 or any
state statute relating to trusts or monopolies.
SECTION 1250d. ORS 522.525 is amended to read:
522.525. { - Board - } { + The + } authority { + of the
Director of the Oregon Department of Natural Resources + }
applies to all private, municipal, state and federal land in the
state { - which - } { + that + } is subject to the state's
regulatory authority. When land subject to federal jurisdiction
is committed to a unit agreement or cooperative
agreement { + , + } the { - board - } { + director + } may
suspend the operation of this chapter or any provision of this
chapter if:
(1) The unit operation is regulated by the United States; and
(2) The unit agreement prevents waste and encourages maximum
economic development of the resource.
SECTION 1251. ORS 522.535 is amended to read:
522.535. (1) The { - governing board of the State Department
of Geology and Mineral Industries - } { + Director of the
Oregon Department of Natural Resources + } shall establish
reasonable fees by rule pursuant to ORS chapter 183 for the
purpose of the development and administration of a unit agreement
to be paid by all persons or state or local governing bodies,
special districts or agencies with a royalty interest in that
unitized development. The fee schedule shall recognize the
reduced workload involved in review of a voluntary unit agreement
that complies with this chapter.
(2) When a person or state or local governing body, special
district or agency with a royalty interest fails to pay a fee
imposed by the { - board - } { + director + } under ORS
522.545 or this section, the { - board - } { + director + }
may require that the fee be paid from the proceeds of the sale of
the unit production attributable to that interest.
SECTION 1252. ORS 522.545 is amended to read:
522.545. The { - governing board of the State Department of
Geology and Mineral Industries - } { + Director of the Oregon
Department of Natural Resources + } may make, in compliance with
ORS chapter 183, rules and orders for the following purposes:
(1) To review and enforce voluntary unit agreements governing
production of geothermal resources in a manner that is consistent
with the provisions of this chapter.
(2) To provide application forms and procedures to enable a
person to request the { - board - } { + director + } to
initiate a unit agreement.
(3) To develop and enforce, when necessary, unit agreements
satisfying the requirements of this chapter.
(4) To settle disagreements between the parties to a unit
agreement over unit operation.
(5) To change the boundaries of a unit area.
(6) To prevent the drilling and operation of geothermal wells
and the production of geothermal resources in a manner that
causes injury to neighboring leaseholds or property.
(7) To levy fees on any operator, person, state or local
governing body, special district or agency that holds a royalty
interest in a unit area to cover reasonable costs associated with
the development and administration of a unit agreement.
SECTION 1253. ORS 522.810 is amended to read:
522.810. Whenever it appears that any person is violating or
threatening to violate any provision of this chapter or any rule
or order of the { - governing board of the State Department of
Geology and Mineral Industries - } { + Director of the Oregon
Department of Natural Resources + } made thereunder, or is
threatening to or committing waste, the { - board - }
{ + director + } may bring suit against such person in the
circuit court of any county where the violation or waste occurs
or is threatened, to restrain such person from continuing such
violation or waste. In any such suit, the court shall have
jurisdiction to grant to the { - board - } { + director + },
without bond or other undertaking, such temporary restraining
orders or final prohibitory and mandatory injunctions as the
facts may warrant, including any such orders restraining the
movement, disposition or waste of geothermal resources.
SECTION 1254. ORS 522.815 is amended to read:
522.815. (1) In accordance with the rulemaking provisions of
ORS chapter 183, the { - governing board of the State
Department of Geology and Mineral Industries - } { + Director
of the Oregon Department of Natural Resources + } may adopt rules
necessary to conserve geothermal resources or other natural
resources, or to protect the environment, the correlative rights
of any person having an ownership interest in the affected land
or resource, or beneficial uses of water, or to accomplish the
efficient and economical development of a geothermal reservoir.
The rules shall include a description of the geothermal reservoir
and the overlying land and may also include provisions for the
following:
(a) Division of a geothermal reservoir into zones;
(b) Establishment of spacing units including a description of
the location, size and shape of such spacing units;
(c) The integration of separately owned tracts or interests
within a spacing unit for the development and operation of the
spacing unit and the sharing of production therefrom;
(d) The protection of existing and future beneficial uses of
water;
(e) Maintaining the renewability of geothermal resources and
any other natural resources; and
(f) Any additional provisions the { - board - }
{ + director + } deems necessary for carrying out the provisions
of this chapter or for protecting the public health, safety and
welfare.
(2) Any rule adopted under this section may in the
{ - board's - } { + director's + } discretion supersede any
right or privilege previously granted by or previously entered by
the { - board - } { + director + } with respect to such
reservoir and may be amended in accordance with the rulemaking
provisions of ORS chapter 183 as appears necessary to the
{ - board - } { + director + } to further the policy stated in
ORS 522.015.
(3) Any proceeding under this section shall be conducted as a
rulemaking proceeding in accordance with ORS chapter 183 unless
an interested party requests that it be conducted as a contested
case in accordance with ORS chapter 183. In either event, notice
shall be given in accordance with the requirements of ORS chapter
183. Notice shall always be given to the following persons:
(a) Any operator who has a drilling permit issued pursuant to
ORS 522.135 or has a legal right to operate a completed
geothermal well in the geothermal reservoir; and
(b) Any person who has an ownership interest in the geothermal
reservoir.
SECTION 1255. ORS 522.910 is amended to read:
522.910. No person shall knowingly aid or abet any other person
in the violation of any provision of this chapter or of any rule
or order of the { - governing board of the State Department of
Geology and Mineral Industries - } { + Director of the Oregon
Department of Natural Resources + } made thereunder.
SECTION 1256. ORS 522.990 is amended to read:
522.990. Subject to ORS 153.022, violation of any provision of
this chapter or of any rule or order of the { - governing board
of the State Department of Geology and Mineral Industries - }
{ + Director of the Oregon Department of Natural Resources + }
made thereunder, excluding ORS 522.405 to 522.545 and any rule
promulgated thereunder, is punishable, upon conviction, by a fine
of not more than $2,500 or by imprisonment in the county jail for
not more than six months, or both.
SECTION 1257. ORS 672.615 is amended to read:
672.615. (1) The State Board of Geologist Examiners shall
operate as a semi-independent state agency subject to ORS 182.456
to 182.472 for the purpose of carrying out ORS 672.505 to
672.705. The board shall consist of four geologists and one
public member, appointed by the Governor.
(2) Each member of the board shall be a citizen of the United
States, and shall have been a resident of this state for one year
preceding appointment. Each of the { - appointed - } geologist
members of the board { + appointed by the Governor + } shall be
a geologist registered under ORS 672.505 to 672.705. The
{ - State Geologist shall be an ex officio member of the
board - } { + Director of the Oregon Department of Natural
Resources shall choose a qualified individual to serve on the
board as a representative of the Oregon Department of Natural
Resources + }. Insofar as possible the board shall be composed of
members having diverse geological specialties including at least
one engineering geologist.
(3) Members of the board { + appointed by the Governor + }
shall hold office until the expiration of the term for which they
were appointed and until their successors have been appointed and
qualified. On the expiration of the term of any member { +
appointed by the Governor + }, the successor of the member shall
be appointed in like manner for a term of three years.
(4) No person { + appointed by the Governor + } shall serve as
a member of the board for more than two consecutive three-year
terms.
(5) The Governor may remove any member of the board
{ + appointed by the Governor + } for misconduct, incompetency,
neglect of duty or other sufficient cause. Vacancies in the
membership of the board shall be filled for the unexpired term by
appointment as provided for in this section.
(6) The board shall hold at least two regular meetings each
year.
(7) The board may fix qualifications of and appoint an
administrator who shall not be a member of the board. The board
shall fix the compensation of the administrator, who shall be in
the unclassified service.
(8) The board shall have the authority to appoint committees as
required or as considered advisable to perform such duties as the
board may direct. Such committees shall be composed of registered
geologists. Membership on all such committees is at the pleasure
of the board.
{ +
WATER RESOURCES DEPARTMENT + }
{ +
(Abolishment and Transfer of + }
{ +
Duties, Functions and Powers) + }
SECTION 1258. { + (1) The Water Resources Department and the
Water Resources Commission are abolished. On the operative date
of this section, the tenure of office of the Water Resources
Director and the members of the Water Resources Commission
ceases.
(2)(a) All the duties, functions and powers of the Water
Resources Department are imposed upon, transferred to and vested
in the Oregon Department of Natural Resources. + }
{ + (b) Where the law imposed the duty or function upon or
vested the power in the Water Resources Director, the duty,
function or power is imposed upon, transferred to or vested in
the Director of the Oregon Department of Natural Resources.
(c) Where the law imposed the duty or function upon or vested
the power in the Water Resources Commission, the duty, function
or power is imposed upon, transferred to and vested in the Oregon
Natural Resources Commission. + }
{ +
(Transfer of Records, Property and Employees) + }
SECTION 1259. { + (1) The Water Resources Director and the
Water Resources Commission shall:
(a) Deliver to the Oregon Department of Natural Resources all
records and property within the jurisdiction of the director or
the commission that relate to the duties, functions and powers
transferred by section 1258 of this 2011 Act; and
(b) Transfer to the Oregon Department of Natural Resources
those employees engaged primarily in the exercise of the duties,
functions and powers transferred by section 1258 of this 2011
Act.
(2) The Director of the Oregon Department of Natural Resources
and the Oregon Natural Resources Commission shall take possession
of the records and property, and shall take charge of the
employees and employ them in the exercise of the duties,
functions and powers transferred by section 1258 of this 2011
Act, without reduction of compensation but subject to change or
termination of employment or compensation as provided by law.
(3) The Governor shall resolve any dispute between the Water
Resources Department and the Oregon Department of Natural
Resources, or the Water Resources Commission and the Oregon
Natural Resources Commission, relating to transfers of records,
property and employees under this section, and the Governor's
decision is final. + }
{ +
(Transfer of Unexpended Revenues) + }
SECTION 1260. { + (1) The unexpended balances of amounts
authorized to be expended by the Water Resources Department for
the biennium beginning July 1, 2011, from revenues dedicated,
continuously appropriated, appropriated or otherwise made
available for the purpose of administering and enforcing the
duties, functions and powers transferred by section 1258 of this
2011 Act are transferred to and are available for expenditure by
the Oregon Department of Natural Resources for the biennium
beginning July 1, 2011, for the purpose of administering and
enforcing the duties, functions and powers transferred by section
1258 of this 2011 Act.
(2) The expenditure classifications, if any, established by
Acts authorizing or limiting expenditures by the Water Resources
Department remain applicable to expenditures by the Oregon
Department of Natural Resources under this section.
(3) The unexpended balances of amounts authorized to be
expended by the Water Resources Commission for the biennium
beginning July 1, 2011, from revenues dedicated, continuously
appropriated, appropriated or otherwise made available for the
purpose of administering and enforcing the duties, functions and
powers transferred by section 1258 of this 2011 Act are
transferred to and are available for expenditure by the Oregon
Natural Resources Commission for the biennium beginning July 1,
2011, for the purpose of administering and enforcing the duties,
functions and powers transferred by section 1258 of this 2011
Act.
(4) The expenditure classifications, if any, established by
Acts authorizing or limiting expenditures by the Water Resources
Commission remain applicable to expenditures by the Oregon
Natural Resources Commission under this section. + }
{ +
(Action, Proceeding and Prosecution) + }
SECTION 1261. { + The transfer of duties, functions and powers
to the Oregon Department of Natural Resources by section 1258 of
this 2011 Act does not affect any action, proceeding or
prosecution involving or with respect to such duties, functions
and powers begun before and pending at the time of the transfer,
except that:
(1) The Oregon Department of Natural Resources is substituted
for the Water Resources Department where the Water Resources
Department is involved in the action, proceeding or prosecution;
or
(2) The Oregon Natural Resources Commission is substituted for
the Water Resources Commission where the Water Resources
Commission is involved in the action, proceeding or
prosecution. + }
{ +
(Liability, Duty and Obligation) + }
SECTION 1262. { + (1) Nothing in sections 1258 to 1265 of this
2011 Act, the amendments to statutes by sections 28 to 411, 422
to 576, 585 to 901, 912 to 1090, 1099 to 1112, 1122 to 1257, 1269
to 1749k, 1758 to 1780, 1791 to 2081 and 2091 to 2160 of this
2011 Act or the repeal of ORS 536.022, 536.025, 536.026, 536.027,
536.032, 536.037, 536.039, 537.249 or 537.895 by section 2161 of
this 2011 Act relieves a person of a liability, duty or
obligation accruing under or with respect to the duties,
functions and powers transferred by section 1258 of this 2011
Act. The Oregon Department of Natural Resources may undertake the
collection or enforcement of any such liability, duty or
obligation.
(2) The rights and obligations of the Water Resources
Department, or of the Water Resources Commission, legally
incurred under contracts, leases and business transactions
executed, entered into or begun before the operative date of
section 1258 of this 2011 Act are transferred to the Oregon
Department of Natural Resources or the Oregon Natural Resources
Commission. For the purpose of succession to these rights and
obligations:
(a) The Oregon Department of Natural Resources is a
continuation of the Water Resources Department where the right or
obligation was incurred by the Water Resources Department; or
(b) The Oregon Department of Natural Resources is a
continuation of the Water Resources Commission where the right or
obligation was incurred by the Water Resources Commission. + }
{ +
(Rules) + }
SECTION 1263. { + (1) Notwithstanding the transfer of duties,
functions and powers by section 1258 of this 2011 Act, the rules
of the Water Resources Department, or of the Water Resources
Commission, in effect on the operative date of section 1258 of
this 2011 Act continue in effect until superseded or repealed by
rules of the Oregon Department of Natural Resources or the Oregon
Natural Resources Commission.
(2) References in rules of the Water Resources Department to
the Water Resources Department, or to an officer or employee of
the Water Resources Department, are considered to be references
to the Oregon Department of Natural Resources or to an officer or
employee of the Oregon Department of Natural Resources.
(3) References in rules of the Water Resources Commission to
the Water Resources Commission, or to an officer or employee of
the Water Resources Commission, are considered to be references
to the Oregon Natural Resources Commission or to an officer or
employee of the Oregon Natural Resources Commission. + }
{ +
(References) + }
SECTION 1264. { + (1) Whenever, in any uncodified law or
resolution of the Legislative Assembly or in any rule, document,
record or proceeding authorized by the Legislative Assembly,
reference is made to the Water Resources Department, or to an
officer or employee of the Water Resources Department, the
reference is considered to be a reference to the Oregon
Department of Natural Resources or to an officer or employee of
the Oregon Department of Natural Resources.
(2) Whenever, in any uncodified law or resolution of the
Legislative Assembly or in any rule, document, record or
proceeding authorized by the Legislative Assembly, reference is
made to the Water Resources Commission, or to an officer or
employee of the Water Resources Commission, the reference is
considered to be a reference to the Oregon Natural Resources
Commission or to an officer or employee of the Oregon Natural
Resources Commission. + }
{ +
(Compacts) + }
SECTION 1265. { + (1) For purposes related to the
administration of the Oregon-California Goose Lake Interstate
Compact, the Director of the Oregon Department of Natural
Resources is the successor in interest to the Water Resources
Director, and the amendments to ORS 542.520 by section 1626 of
this 2011 Act do not affect a person's rights under Article III
of the Oregon-California Goose Lake Interstate Compact.
(2) For purposes related to the administration of the Klamath
River Basin Compact, the Oregon Department of Natural Resources
is the Water Resources Commission of Oregon's successor in
interest and the amendments to ORS 542.620 by section 1627 of
this 2011 Act do not change the State of Oregon's
responsibilities under Article IX of the Klamath River Basin
Compact. + }
{ +
(Agency Name Change) + }
SECTION 1266. { + (1) For the purpose of harmonizing and
clarifying statutory law, the Legislative Counsel may substitute
for words designating the 'Water Resources Department,' wherever
they occur in statutory law, words designating the 'Oregon
Department of Natural Resources. '
(2) For the purpose of harmonizing and clarifying statutory
law, the Legislative Counsel may substitute for words designating
the 'Water Resources Director,' wherever they occur in statutory
law, words designating the 'Director of the Oregon Department of
Natural Resources.' + }
{ +
(Fund Name Changes) + }
SECTION 1267. { + For the purpose of harmonizing and
clarifying statutory law, the Legislative Counsel may substitute
for words designating the 'Water Resources Department Water Right
Operating Fund' and 'Water Resources Department Hydroelectric
Fund, ' wherever they occur in statutory law, words designating
the ' Oregon Natural Resources Fund.' + }
{ +
(Commission Name Change) + }
SECTION 1268. { + For the purpose of harmonizing and
clarifying statutory law, the Legislative Counsel may substitute
for words designating the 'Water Resources Commission,' wherever
they occur in statutory law, words designating the 'Oregon
Natural Resources Commission.' + }
{ +
(Conforming Amendments) + }
SECTION 1269. ORS 225.300 is amended to read:
225.300. Any filing made by any city upon the unappropriated
waters of this state for use in the future development of a
hydroelectric plant by such city shall be reserved to such city
and shall not be subject to appropriation by any other person,
municipality or corporation unless it is judicially determined
that the filing exceeds the reasonable present and future
requirements of such city. In that event the surplus or excess
may, by judgment of a court of competent jurisdiction, be
released and discharged from the filing. Proceedings in court for
the determination of whether or not the filing by any city
exceeds its reasonable present and future requirements may be
instituted by the State of Oregon, by the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + } in
the name of and for the State of Oregon, or by any other
applicant for the right to use the waters involved.
SECTION 1270. ORS 261.330 is amended to read:
261.330. Any filing made by any people's utility district upon
the unappropriated waters of this state for use in the future
development of a hydroelectric plant by the district shall be
reserved to the district and shall not be subject to
appropriation by any other person, city or corporation, unless it
is judicially determined that such filing exceeds the reasonable
present and future requirements of the district, in which event
the surplus or excess may be by judgment of a court of competent
jurisdiction released and discharged from such filing.
Proceedings in court for the determination of whether or not the
filing by any utility district exceeds its reasonable present and
future requirements may be instituted by the State of Oregon, by
the { - Water Resources Commission - } { + Oregon Natural
Resources Commission + } in the name of and for the State of
Oregon { - , - } or by any other applicant for the right to the
use of the waters involved.
SECTION 1270a. ORS 285B.560 is amended to read:
285B.560. As used in ORS 285B.560 to 285B.599:
(1) 'Direct project management costs' means new expenses
incurred by a municipality solely to support, plan for and manage
an infrastructure project, funded in whole or in part through
financial assistance under ORS 285B.560 to 285B.599, during the
planning and construction phases of the project.
(2) 'Fund' means the Water Fund.
(3) 'Municipality' has the meaning given that term in ORS
285B.410.
(4) 'Safe drinking water project' means a project for
constructing or improving a drinking water system or a water
development project, as defined in ORS 541.700 { - (6)(a), (b)
and (d) to (f) - } { + (4)(a), (b) and (d) to (f) + }, that is
owned and operated by a municipality.
(5) 'Waste water system improvement project' means a project
for constructing or improving a system for waste water collection
or treatment, including storm drainage systems.
(6) 'Water project' means a safe drinking water project or a
waste water system improvement project.
SECTION 1271. ORS 285B.563 is amended to read:
285B.563. (1) There is established in the State Treasury,
separate and distinct from the General Fund, the Water Fund.
Interest earned by the Water Fund shall be credited to the fund.
All moneys in the Water Fund are continuously appropriated to the
Oregon Business Development Department for the Oregon
Infrastructure Finance Authority for the purposes described in
ORS 285B.560 to 285B.599, including the direct project management
costs.
(2)(a) Moneys in the Water Fund may be obligated to water
projects.
(b) Moneys shall be used primarily to make loans to
municipalities. The authority may make a loan only if:
(A) The municipality applying for the loan certifies to the
{ + Oregon Business Development + } Department that adequate
funds will be available to repay the loan; and
(B) The authority determines that the amount of the loan
applied for is based on a reasonable and prudent expectation of
the municipality's ability to repay the loan.
(c) The authority may award a grant if a loan is not feasible
due to:
(A) Financial hardship to the municipality, as determined by
the authority, based on consideration of anticipated water
service charges or anticipated waste water service charges, the
per capita income of the municipality and any other factors as
the department by rule may establish; and
(B) Special circumstances of the water project.
(d) The authority may also award grants from the fund to:
(A) Identify and implement sustainable technologies and
practices;
(B) Build asset management capacity for municipalities;
(C) Plan for strategic initiatives that focus on the
regionalization of water systems; or
(D) Provide third party technical assistance to communities in
the development of water systems that include asset management
components.
(e) The authority may determine the amount of grant or loan
funding on a case-by-case basis.
(3) The moneys in the fund may also be used to assist the
authority in selling revenue bonds on behalf of municipalities in
order to carry out the purposes of ORS 285B.560 to 285B.599.
(4) Moneys in the Water Fund may be invested as provided by ORS
293.701 to 293.820. The earnings from the investments and other
program income shall be credited to the Water Fund.
(5) The Water Fund shall consist of:
(a) Moneys appropriated to the fund by the Legislative
Assembly.
(b) Moneys transferred to the fund by the authority from the
Special Public Works Fund created by ORS 285B.455.
(c) Moneys transferred to the Water Fund by the { - Water
Resources Commission - } { + Oregon Natural Resources
Commission + } from the Water Development Fund created by Article
XI-I(1) of the Oregon Constitution.
(d) Moneys from any federal, state or other grants.
(e) Proceeds of revenue bonds issued under ORS 285B.575.
(f) Earnings on the Water Fund.
(6) The authority shall administer the fund.
(7) The { - department - } { + Oregon Business Development
Department + } shall adopt rules and policies for the
administration of the fund. The { - department - }
{ + Oregon Business Development Department + } shall coordinate
its rulemaking regarding safe drinking water projects with the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + } and the Oregon Health Authority. The rules
adopted under this subsection for safe drinking water projects
shall:
(a) Require the installation of meters on all new active
service connections from any distribution lines funded with
moneys from the fund or from the proceeds of revenue bonds issued
under ORS 285B.572 to 285B.578.
(b) Require a plan, to be adopted by a municipality receiving
financial assistance from the fund, for installation of meters on
all service connections throughout the drinking water system not
later than two years after the completion of a safe drinking
water project.
(8)(a) The Oregon Infrastructure Finance Authority shall manage
the Water Fund and any expenditures from accounts in the fund and
transfers between accounts so that the fund provides a continuing
source of financing consistent with ORS 285B.413.
(b) If necessary to ensure repayment of bonds issued under ORS
285B.560 to 285B.599, the authority may reduce the value of the
fund when the authority:
(A) Finds that without a reduction in fund value, bonds secured
by the fund are likely to be in default; and
(B) Imposes a moratorium on grants until the requirements of
paragraph (a) of this subsection are satisfied.
(9)(a) The authority may charge administrative costs to the
fund, but not to moneys segregated in the account created by
subsection (11) of this section, to pay for administrative costs
incurred by the authority.
(b) To the extent permitted by federal law, administrative
costs of the authority may be paid from bond proceeds.
(10) The authority may establish other accounts within the
Water Fund for the payment of water projects costs, reserves,
debt service payments, credit enhancements, costs of issuing
revenue bonds, administrative costs and operating expenses or any
other purpose necessary to carry out ORS 285B.560 to 285B.599.
(11) There is created within the Water Fund a separate and
distinct account for the proceeds from the sale of water
development general obligation bonds issued for safe drinking
water projects and credited to the special account under this
section. Any investment earnings thereon shall be segregated in
and continuously appropriated to a special, separately accounted
for subaccount of this account. Moneys credited to this account
shall be maintained separate and distinct from moneys credited to
subaccounts created under subsection (10) of this section.
Notwithstanding ORS 285B.566 or subsection (4) of this section,
all repayments of moneys loaned from the account created by this
subsection, including interest on the moneys, shall be credited
to the Water Development Administration and Bond Sinking Fund
created by ORS 541.830.
(12) As used in this section, 'administrative costs ' include
the authority's direct and indirect costs for investigating and
processing an application, developing a contract, monitoring the
use of funds by a municipality, investigating and resolving a
budget discrepancy, closing a project and providing financial and
other assistance to a municipality.
SECTION 1272. ORS 390.010 is amended to read:
390.010. The Legislative Assembly recognizes and declares:
(1) It is desirable that all Oregonians of present and future
generations and visitors who are lawfully present within the
boundaries of this state be assured adequate outdoor recreation
resources. It is desirable that all levels of government and
private interests take prompt and coordinated action to the
extent practicable without diminishing or affecting their
respective powers and functions to conserve, develop, and utilize
such resources for the benefit and enjoyment of all the people.
(2) The economy and well-being of the people are in large part
dependent upon proper utilization of the state's outdoor
recreation resources for the physical, spiritual, cultural,
scientific and other benefits which such resources afford.
(3) It is in the public interest to increase outdoor recreation
opportunities commensurate with the growth in need through
necessary and appropriate actions, including, but not limited to,
the following:
(a) Protection of existing and needed open spaces for
appreciation, use and enjoyment of Oregon's scenic landscape.
(b) Provision of adequate land for outdoor recreation.
(c) Preservation and restoration for public enjoyment and
education of structures, objects, facilities and resources which
are examples of Oregon history, archaeology and natural science.
(d) Development of a system of scenic roads to enhance
recreational travel and sightseeing.
(e) Encouragement of outdoor activities such as festivals,
fairs, and events relating to music, dance, drama, art and
sports.
(f) Expansion of facilities for camping, picnicking and lodging
in or near recreational areas and along routes of travel.
(g) Provision of tourist hospitality centers, which may include
informational services, sanitary facilities, camping and
picnicking areas at points near major highway entrances into the
state.
(h) Provision of trails for horseback riding, hiking, bicycling
and motorized trail vehicle riding.
(i) Development of waterways, land and water facilities for
recreational boating, hunting and fishing.
(j) Development of all recreation potentials of the several
river basins, compatible with programs of water use enunciated by
the { - Water Resources Commission - } { + Oregon Natural
Resources Commission + }.
(k) Provision for access to public lands and waters having
recreational values.
(L) Encouragement of the development of winter sports
facilities.
(m) Encouragement of programs for recreational enjoyment of
mineral resources.
(4) It is in the public interest that all efforts be made
through research, education and enforcement to the end that
Oregon's outdoor recreation resources will be used under the
highest standards of conduct.
(5) It shall be the policy of the State of Oregon to supply
those outdoor recreation areas, facilities and opportunities
which are clearly the responsibility of the state in meeting
growing needs; and to encourage all agencies of government,
voluntary and commercial organizations, citizen recreation groups
and others to work cooperatively and in a coordinated manner to
assist in meeting total recreation needs through exercise of
their appropriate responsibilities.
SECTION 1273. ORS 431.120 is amended to read:
431.120. The Oregon Health Authority shall:
(1) Enforce state health policies and rules.
(2) Have the custody of all books, papers, documents and other
property belonging to the State Health Commission, which may be
deposited in the authority's office.
(3) Give any instructions that may be necessary, and forward
them to the various local public health administrators throughout
the state.
(4) Routinely conduct epidemiological investigations for each
case of sudden infant death syndrome including, but not limited
to, the identification of risk factors such as birth weight,
maternal age, prenatal care, history of apnea and socioeconomic
characteristics. The authority may conduct the investigations
through local health departments only upon adoption by rule of a
uniform epidemiological data collection method.
(5) Adopt rules related to loans and grants awarded under ORS
285B.560 to 285B.599 or 541.700 to 541.855 for the improvement of
drinking water systems for the purpose of maintaining compliance
with applicable state and federal drinking water quality
standards. In adopting rules under this subsection, the authority
shall coordinate the authority's rulemaking process with the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + } and the Oregon Business Development
Department in order to ensure that rules adopted under this
subsection are consistent with rules adopted under ORS 285B.563
and 541.845.
(6) Control health care capital expenditures by administering
the state certificate of need program pursuant to ORS 442.325 to
442.344.
SECTION 1274. ORS 450.695 is amended to read:
450.695. (1) A water authority may acquire water rights from
any local government as defined in ORS 174.116. Upon request by
the authority if the water right acquired was for municipal use,
the { - Water Resources Commission - } { + Oregon Natural
Resources Commission + } shall issue a new water right
certificate to the water authority preserving the previously
established priority of water rights.
(2) In accordance with ORS 540.520 and 540.530, a water
authority may change the points of diversion of water or move the
water intake sources as specified in the water right permits or
certificates of those local governments as defined in ORS 174.116
that were merged into the authority.
SECTION 1275. ORS 450.700 is amended to read:
450.700. (1) A water authority may acquire water rights from
any city or any district, as defined in ORS 543.655. Upon request
by the authority, the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } shall issue a new
water right certificate to the water authority preserving the
previously established priority of water rights.
(2) Upon compliance with ORS 540.520 and 540.530, a water
authority may change the points of diversion of water or move the
water intake sources as specified in the water right permits of
those districts that were merged into the authority. Upon the
filing of notice of such changes with the { - Water Resources
Department - } { + Oregon Department of Natural Resources + },
the changes shall not impair any water right previously vested in
those districts.
SECTION 1276. ORS 468B.040 is amended to read:
468B.040. (1) The Director of the Department of Environmental
Quality shall approve or deny certification of any federally
licensed or permitted activity related to hydroelectric power
development, under section 401 of the Federal Water Pollution
Control Act, P.L. 92-500, as amended. In making a decision as to
whether to approve or deny such certification, the director
shall:
(a) Solicit and consider the comments of all affected state
agencies relative to adverse impacts on water quality caused by
the project, according to sections 301, 302, 303, 306 and 307 of
the Federal Water Pollution Control Act, P.L. 92-500, as amended.
(b) Approve or deny a certification only after making findings
that the approval or denial is consistent with:
(A) Rules adopted by the Environmental Quality Commission on
water quality;
(B) Provisions of sections 301, 302, 303, 306 and 307 of the
Federal Water Pollution Control Act, P.L. 92-500, as amended;
(C) Except as provided in subsection (2) of this section,
standards established in ORS 543.017 and rules adopted by the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + } implementing such standards; and
(D) Except as provided in subsection (2) of this section,
standards of other state and local agencies that are consistent
with the standards of ORS 543.017 and that the director
determines are other appropriate requirements of state law
according to section 401 of the Federal Water Pollution Control
Act, P.L. 92-500, as amended.
(2) If the proposed certification is for the reauthorization of
a federally licensed project, as defined in ORS 543A.005, or for
a project that is subject to federal relicensing but that
operates under a water right that does not expire, the director
shall not determine consistency under subsection (1)(b)(C) and
(D) of this section, but shall determine whether the approval or
denial is consistent with the rules and provisions referred to in
subsection (1)(b)(A) and (B) of this section, standards
established in ORS 543A.025 (2) to (4), rules adopted by the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + } implementing such standards and rules of
other state and local agencies that are consistent with the
standards of ORS 543A.025 (2) to (4) and that the director
determines are other appropriate requirements of state law
according to section 401 of the Federal Water Pollution Control
Act, P.L. 92-500, as amended.
(3) If the proposed certification is for the reauthorization of
a federally licensed project, as defined in ORS 543A.005, or for
a project that is subject to federal relicensing but that
operates under a water right that does not expire, the director
shall act in accordance with the recommendation of the
Hydroelectric Application Review Team, except as provided in ORS
543A.110. If the proposed certification is for a project that is
subject to federal relicensing but that operates under a water
right that does not expire, and the Hydroelectric Application
Review Team develops a unified state position under ORS 543A.400
(4)(b), the director shall act in accordance with the
recommendation of the Hydroelectric Application Review Team,
except as provided in ORS 543A.110.
SECTION 1277. ORS 468B.045 is amended to read:
468B.045. Within 60 days after the Department of Environmental
Quality receives notice that any federal agency is considering a
permit or license application related to a change to a
hydroelectric project or proposed hydroelectric project that was
previously certified by the Director of the Department of
Environmental Quality according to section 401 of the Federal
Water Pollution Control Act P.L. 92-500, as amended:
(1) The director shall:
(a) Solicit and consider the comments of all affected state
agencies relative to adverse impacts on water quality caused by
changes in the project, according to sections 301, 302, 303, 306
and 307 of the Federal Water Pollution Control Act, P.L. 92-500,
as amended.
(b) Approve or deny a certification of the proposed change
after making findings that the approval or denial is consistent
with:
(A) Rules adopted by the Environmental Quality Commission on
water quality;
(B) Provisions of sections 301, 302, 303, 306 and 307 of the
Federal Water Pollution Control Act, P.L. 92-500, as amended;
(C) Except as provided in subsection (2) of this section,
standards established in ORS 543.017 and rules adopted by the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + } implementing such standards; and
(D) Except as provided in subsection (2) of this section,
standards of other state and local agencies that are consistent
with the standards of ORS 543.017 and that the director
determines are other appropriate requirements of state law
according to section 401 of the Federal Water Pollution Control
Act, P.L. 92-500, as amended.
(2) If the proposed certification is for a change to a
federally licensed project, as defined in ORS 543A.005, that has
been reauthorized under ORS 543A.060 to 543A.300, or for a change
to a project that is subject to federal relicensing but that
operates under a water right that does not expire, the director
shall not determine consistency under subsection (1)(b)(C) and
(D) of this section, but shall determine consistency with the
rules and provisions referred to in subsection (1)(b)(A) and (B)
of this section, standards established in ORS 543A.025 (2) to
(4), rules adopted by the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } implementing such
standards and rules of other state and local agencies that are
consistent with the standards of ORS 543A.025 (2) to (4) and that
the director determines are other appropriate requirements of
state law according to section 401 of the Federal Water Pollution
Control Act, P.L. 92-500, as amended.
(3) On the basis of the evaluation and determination under
subsections (1) and (2) of this section, the director shall
notify the appropriate federal agency that:
(a) The proposed change to the project is approved; or
(b) There is no longer reasonable assurance that the project as
changed complies with the applicable provisions of the Federal
Water Pollution Control Act, P.L. 92-500, as amended, because of
changes in the proposed project since the director issued the
construction license or permit certification.
SECTION 1278. ORS 468B.048 is amended to read:
468B.048. (1) The Environmental Quality Commission by rule may
establish standards of quality and purity for the waters of the
state in accordance with the public policy set forth in ORS
468B.015. In establishing such standards, the commission shall
consider the following factors:
(a) The extent, if any, to which floating solids may be
permitted in the water;
(b) The extent, if any, to which suspended solids, settleable
solids, colloids or a combination of solids with other substances
suspended in water may be permitted;
(c) The extent, if any, to which organisms of the coliform
group, and other bacteriological organisms or virus may be
permitted in the waters;
(d) The extent of the oxygen demand which may be permitted in
the receiving waters;
(e) The minimum dissolved oxygen content of the waters that
shall be maintained;
(f) The limits of other physical, chemical, biological or
radiological properties that may be necessary for preserving the
quality and purity of the waters of the state;
(g) The extent to which any substance must be excluded from the
waters for the protection and preservation of public health; and
(h) The value of stability and the public's right to rely upon
standards as adopted for a reasonable period of time to permit
institutions, municipalities, commerce, industries and others to
plan, schedule, finance and operate improvements in an orderly
and practical manner.
(2) Standards established under this section shall be
consistent with policies and programs for the use and control of
water resources of the state adopted by the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + }
under ORS 536.220 to 536.540.
(3) Subject to the approval of the Department of Environmental
Quality, any person responsible for complying with the standards
of water quality or purity established under this section shall
determine the means, methods, processes, equipment and operation
to meet the standards.
SECTION 1279. ORS 468B.190 is amended to read:
468B.190. (1) In cooperation with the { - Water Resources
Department - } { + Oregon Department of Natural Resources + },
the Department of Environmental Quality and the Oregon State
University Agricultural Experiment Station shall conduct an
ongoing statewide monitoring and assessment program of the
quality of the ground water resource of this state. The program
shall be designed to identify:
(a) Areas of the state that are especially vulnerable to ground
water contamination;
(b) Long-term trends in ground water quality;
(c) Ambient quality of the ground water resource of Oregon; and
(d) Any emerging ground water quality problems.
(2) The Oregon State University Agricultural Experiment Station
shall forward copies of all information acquired from the
statewide monitoring and assessment program conducted under this
section to the Department of Environmental Quality for inclusion
in the central repository of information about Oregon's ground
water resource established pursuant to ORS 468B.167.
SECTION 1280. ORS 469.470 is amended to read:
469.470. The Energy Facility Siting Council shall:
(1) Conduct and prepare, independently or in cooperation with
others, studies, investigations, research and programs relating
to all aspects of site selection.
(2) In accordance with the applicable provisions of ORS chapter
183, and subject to the provisions of ORS 469.501 (3), adopt
standards and rules to perform the functions vested by law in the
council including the adoption of standards and rules for the
siting of energy facilities pursuant to ORS 469.501, and
implementation of the energy policy of the State of Oregon set
forth in ORS 469.010 and 469.310.
(3) Encourage voluntary cooperation by the people,
municipalities, counties, industries, agriculture, and other
pursuits, in performing the functions vested by law in the
council.
(4) Advise, consult, and cooperate with other agencies of the
state, political subdivisions, industries, other states, the
federal government and affected groups, in furtherance of the
purposes of ORS 469.300 to 469.563, 469.590 to 469.619, 469.930
and 469.992.
(5) Consult with the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } on the need for
power and other areas within the expertise of the council when
the { - Water Resources - } commission is determining whether
to allocate water for hydroelectric development.
(6) Perform such other and further acts as may be necessary,
proper or desirable to carry out effectively the duties, powers
and responsibilities of the council described in ORS 469.300 to
469.563, 469.590 to 469.619, 469.930 and 469.992.
SECTION 1281. ORS 469.571 is amended to read:
469.571. There is created an Oregon Hanford Cleanup Board that
shall consist of the following members:
(1) The Director of the State Department of Energy or designee;
(2) The { - Water Resources Director - } { + Director of
the Oregon Department of Natural Resources + } or designee;
(3) A representative of the Governor;
(4) One member representing the Confederated Tribes of the
Umatilla Indian Reservation;
(5) Ten members of the public, appointed by the Governor, one
of whom shall be a representative of a local emergency response
organization in eastern Oregon and one of whom shall serve as
chairperson; and
(6) Three members of the Senate, appointed by the President of
the Senate, and three members of the House of Representatives,
appointed by the Speaker of the House of Representatives who
shall serve as advisory members without vote.
SECTION 1282. ORS 536.007 is amended to read:
536.007. As used in ORS 196.600 to 196.905, 541.010 to 541.320
and 541.430 to 541.545, 541.700 to 541.990 and ORS chapters 536
to 540, 542 and 543:
(1) 'Commission' means the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + }.
(2) 'Department' means the { - Water Resources Department - }
{ + Oregon Department of Natural Resources + }.
(3) 'Director' means the { - Water Resources Director - }
{ + Director of the Oregon Department of Natural Resources + }.
(4) 'Existing right' or 'vested right' or words of similar
import include an inchoate right to the use of water to the
fullest extent that the right is recognized, defined or declared
by the commission, the director or any court within this state.
(5) 'Order' has the meaning given in ORS 183.310.
(6) 'Person' includes individuals, corporations, associations,
firms, partnerships, joint stock companies, public and municipal
corporations, political subdivisions, the state and any agencies
thereof, and the federal government and any agencies thereof.
(7) 'Public corporation' includes any city, county or district
organized for public purposes.
(8) 'Rule' has the meaning given in ORS 183.310.
(9) 'State agency' includes any office, board, commission or
department of a state government.
(10) 'State water resources policy' means the water resources
policy provided for in ORS 536.295 to 536.350 and 537.505 to
537.534.
(11) 'Undetermined vested right' means a water right claimed
under ORS 539.010 as having vested or as having been initiated
before February 24, 1909, that has not been determined in an
adjudication proceeding under ORS chapter 539 nor is evidenced by
a permit or certificate issued under the Water Rights Act.
(12) 'Waters of this state' means any surface or ground waters
located within or without this state and over which this state
has sole or concurrent jurisdiction.
(13) 'Water resources of this state' means waters of this state
and the following auxiliary lands whose usage directly affects
the development and control of the waters of this state:
(a) Potential reservoir sites.
(b) Floodplain areas forming the predictable channels of
floodwater drainage of rivers and streams.
SECTION 1283. ORS 536.009 is amended to read:
536.009. { - (1) There is established in the State Treasury
the Water Resources Department Water Right Operating Fund,
separate and distinct from the General Fund, to provide for the
payment of the program and administrative expenses of the Water
Resources Commission and the Water Resources Department in
carrying out the provisions of ORS chapters 536, 537, 540 and
541. Interest earned by the fund shall be credited to the
fund. - }
{ - (2) The fund shall consist of: - }
{ - (a) All moneys received under ORS 536.050 and
537.747. - }
{ - (b) All moneys received on behalf of the fund by gift,
grant or appropriation from whatever source. - }
{ - (3) All moneys in the fund are continuously appropriated
to the Water Resources Department for payment of expenses as
described in this section. - } { + All moneys received under
ORS 536.050 and 537.747 shall be deposited in the Oregon Natural
Resources Fund. All moneys deposited in the fund under this
section are continuously appropriated to the Oregon Department of
Natural Resources for the purpose of carrying out the provisions
of ORS chapters 536, 537, 540 and 541. + }
SECTION 1284. ORS 536.015 is amended to read:
536.015. (1) { - The Water Resources Department Hydroelectric
Fund is established separate and distinct from the General Fund
of the State Treasury. Except as provided in subsections (4) to
(6) of this section, of the moneys in the Water Resources
Department Hydroelectric Fund: - } { + All fees received by the
Oregon Department of Natural Resources for hydroelectric projects
under ORS 536.050, 543.078 to 543.092, 543.210, 543.280, 543.300,
543.710, 543A.405 and 543A.415 shall be deposited in the Oregon
Natural Resources Fund. + }
{ - (a) - } { + (2) + } A portion equal to 67 percent of
the total moneys received each year { + under subsection (1) of
this section + } shall be transferred to the { + Oregon Fish and
Wildlife Hydroelectric + } Fund
{ - created - } { + established + } under ORS
496.835 { + . + } { - ; - }
{ - (b) - } { + (3) + } A portion equal to 10.3 percent of
the total moneys received each year { + under subsection (1) of
this section + } shall be transferred to an account of the
Department of Environmental Quality to be used to review
applications for certification of hydroelectric projects under
ORS 468B.040 and 468B.045 { + . + } { - ; and - }
{ - (c) - } { + (4) + } All of the remaining moneys
received each year { + under subsection (1) of this section + }
are continuously appropriated to the { - Water Resources
Commission and the Water Resources Department - } { + Oregon
Natural Resources Commission and the Oregon Department of Natural
Resources + } to provide for the payment of the administrative
expenses of the commission and the department in carrying out
their responsibilities related to the issuance of permits,
licenses or water right certificates for hydroelectric projects.
{ - (2) The following shall be deposited into the State
Treasury and credited to the Water Resources Department
Hydroelectric Fund: - }
{ - (a) Fees received by the Water Resources Department for
hydroelectric projects under ORS 536.050, 543.078 to 543.092,
543.210, 543.280, 543.300, 543.710, 543A.405 and 543A.415;
and - }
{ - (b) All moneys received on behalf of this account by
gift, grant or appropriation from whatever source. - }
{ - (3) All interest, if any, from moneys credited to the
Water Resources Department Hydroelectric Fund shall be credited
to the fund and shall inure to the benefit of the Water Resources
Department Hydroelectric Fund. - }
{ - (4) - } { + (5) + } Application fees received under ORS
543A.405 shall be disbursed to { - the various - }
{ + participating + } agencies in the amounts specified in the
cost reimbursement agreement executed with each reauthorization
applicant.
{ - (5) - } { + (6) + } Four cents of each 28 cents paid as
a reauthorization fee under ORS 543A.415 shall be paid to the
Department of Environmental Quality.
{ - (6) - } { + (7) + } Annual fees paid under ORS 543.078
shall be disbursed to state agencies pursuant to a memorandum of
agreement developed by the Department of Environmental Quality
{ - , the State Department of Fish and Wildlife and the Water
Resources Department - } { + and the Oregon Department of
Natural Resources + }.
SECTION 1285. ORS 536.017 is amended to read:
536.017. The { - Water Resources Commission and the State
Department of Fish and Wildlife shall maintain records of
expenditures from the Water Resources Department Hydroelectric
Fund established - } { + Oregon Department of Natural Resources
shall maintain records of expenditures made + }under ORS
536.015. The records shall account for costs imposed against
specific operating hydroelectric projects and against projects in
the process of obtaining a state or federal hydroelectric permit,
certificate or license.
SECTION 1286. ORS 536.021 is amended to read:
536.021. (1) The Water Measurement Cost Share Program Revolving
Fund is established separate and distinct from the General Fund.
All moneys in the Water Measurement Cost Share Program Revolving
Fund are continuously appropriated to the { - Water Resources
Department - } { + Oregon Department of Natural Resources + }
for the purposes described in this section.
(2) The fund established in this section consists of moneys
appropriated by the Legislative Assembly and moneys gifted,
bequested, donated or granted from any person for the purpose of
installing, substantially repairing or replacing streamflow
gauges, measuring devices or headgates with measuring devices.
(3) The department may use the moneys in the fund to contribute
up to 75 percent of the moneys needed to install, substantially
repair or replace a streamflow gauge, measuring device or
headgate with a measuring device on authorized diversions on the
waters of this state where the gauge, measuring device or
headgate will be used to protect in-stream flow or to monitor
water rights and streamflow.
(4) The department may receive funds from, and may enter into
agreements or contracts with, any person for the purpose of
implementing the Water Measurement Cost Share Program Revolving
Fund.
(5) The department shall prioritize the expenditure of moneys
from the fund for streamflow gauges, measuring devices and
headgates with measuring devices in the following descending
order:
(a) Installation.
(b) Replacement.
(c) Substantial repair.
SECTION 1287. ORS 536.028 is amended to read:
536.028. In accordance with applicable provisions of ORS
chapter 183, the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } may adopt rules
necessary to administer the provisions of ORS 390.835 pertaining
to the issuance of a water right within or above a scenic
waterway.
SECTION 1288. ORS 536.031 is amended to read:
536.031. (1) Except as provided in subsection (2) of this
section, { - the Water Resources Department - } { + for rules
adopted pursuant to the water laws of this state, the Oregon
Department of Natural Resources + } may apply only those rules of
the department that are in effect as of the date that a completed
application is made for a permit in deciding whether to approve,
deny or impose conditions on the permit.
(2) This section does not affect the application of any rule of
the department that:
(a) Is required by federal law;
(b) Is required by any agreement between the state and a
federal agency;
(c) The applicant voluntarily agrees to make applicable to the
application; or
(d) Is necessary to protect public health and safety.
SECTION 1289. ORS 536.040 is amended to read:
536.040. (1) The records of the { - Water Resources
Department - } { + Oregon Department of Natural Resources that
relate to the water resources of this state + } are public
records and shall remain on file in the department and be open to
the inspection of the public at all times during business hours.
The records shall show in full all maps, profiles, and
engineering data relating to the use of water, and certified
copies thereof shall be admissible as evidence in all cases where
the original would be admissible as evidence.
(2) Whenever a record is required to be filed or maintained in
the { - Water Resources - } department, the record may be
handwritten, typewritten, printed or a photostated or
photographic copy and any means of recording the information is
acceptable, including but not limited to papers, maps, magnetic
or paper tapes, photographic films and prints, magnetic or
punched cards, discs, drums or other preservation of the document
or the information contained in the document.
(3) Notwithstanding any provision of subsection (2) of this
section, the { - Water Resources - } department shall maintain
a paper copy of each final water use permit, certificate,
{ - order of the Water Resources Commission or Water Resources
Director, decree or - } certificate of registration { + or order
of the Director of the Oregon Department of Natural Resources or
Oregon Natural Resources Commission that pertains to the water
resources of this state + }. The copies shall be retained in a
secure location in the department.
SECTION 1290. ORS 536.050 is amended to read:
536.050. (1) The { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } may collect the
following fees in advance:
(a) For examining an application for a permit:
(A) To appropriate water, except as provided under ORS 543.280
for an application for a hydroelectric project:
(i) A base fee of $700 for an appropriation of water through a
single use, point of diversion or point of appropriation;
(ii) $250 for the first second-foot or fraction thereof
appropriated under the permit;
(iii) $250 for each additional second-foot or fraction thereof
appropriated under the permit;
(iv) $250 for each additional use, point of diversion or point
of appropriation included in the application;
(v) If appropriating stored water, $25 for the first acre-foot
or fraction thereof up to 20 acre-feet, plus $1 for each
additional acre-foot or fraction thereof; and
(vi) If appropriating ground water, in addition to any other
fees, $300 for each application filed.
(B) To store water under ORS 537.400 or 537.534 (4):
(i) A base fee of $700;
(ii) $25 for the first acre-foot or fraction thereof up to 20
acre-feet, plus $1 for each additional acre-foot or fraction
thereof; and
(iii) $100 for each additional storage location.
(C) To exclusively appropriate stored water:
(i) A base fee of $400; and
(ii) $25 for the first acre-foot or fraction thereof up to 20
acre-feet, plus $1 for each additional acre-foot or fraction
thereof.
(b) For a permit issued under ORS 537.147, 537.211, 537.409 or
537.625 to appropriate or store water:
(A) A base fee of $400 for recording the permit; and
(B) An additional fee of $500 if the permit is issued pursuant
to a final order that contains provisions requested by the
applicant for mitigating impacts to the proposed water source.
(c) For filing and recording the assignment or partial
assignment of a water right application, permit or license under
ORS 537.220 or 537.635, $75.
(d) For copying records in the department, $2 for the first
page and 50 cents for each additional page.
(e) For certifying copies, documents, records or maps, $10 for
each certificate.
(f) For a blueprint copy of any map or drawing, the actual cost
of the work.
(g) For a computer-generated map, the actual cost of the work.
(h) For examining an application for approval of a change to an
existing water right or permit:
(A) A base fee of $900 for a change to a single water right or
permit;
(B) $700 for each additional type of change requested;
(C) For a request for a change in place of use or type of use
or for a water exchange under ORS 540.533, $250 for each
second-foot or fraction thereof requested beyond the first
second-foot;
(D) $400 for each additional water right or permit included in
the application; and
(E) An additional fee of $300 per application, if the
application is for an additional point of appropriation, a change
in a point of appropriation or a change from surface water to
ground water or for substitution as described in ORS 540.524.
(i) For examining an application for a temporary change in
place of use under ORS 540.523, for a temporary transfer under
ORS 540.585 or for a temporary change in place of use, a change
in the point of diversion to allow for the appropriation of
ground water or a change of a primary right to a supplemental
right under ORS 540.570, a base fee of $600 for the first water
right or permit, plus $200 for each additional water right or
permit included in the application and:
(A) For nonirrigation uses, $150 for each second-foot or
fraction thereof requested beyond the first second-foot; or
(B) For irrigation uses, $2 per acre of land irrigated or, if
the application and required map are submitted to the department
in a department-approved digital format, 50 cents per acre of
land irrigated.
(j) For submitting a protest to the department:
(A) $600 if the protest is by a nonapplicant; and
(B) $300 if the protest is by an applicant.
(k) For filing an application for extension of time within
which irrigation or other works shall be completed or a water
right perfected, $500.
(L) For a limited license under ORS 537.143 or 537.534 (2), the
fee established by rule by the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + }.
(m) For filing, examining and certifying a petition under ORS
541.329, $300 plus 10 cents per acre of water involved in the
application. For purposes of computing this fee, when any acreage
within a quarter quarter of a section is involved, the 10 cents
per acre shall apply to all acres in that quarter quarter of a
section. Notwithstanding the fee amount established in this
paragraph, a district notifying the department under ORS 541.327
(4) shall pay the actual cost of filing, examining and certifying
the petition.
(n) For requesting standing under ORS 537.153, 537.621 or
543A.120, $150.
(o) For participating in a contested case proceeding under ORS
537.170, 537.622 or 543A.130, $350.
(p) Except for an applicant, for obtaining a copy of both a
proposed final order and a final order for a water right
application under ORS 537.140 to 537.252, 537.505 to 537.795 or
543A.005 to 543A.300 or an extension issued under ORS 537.230,
537.248 or 537.630, $20.
(q) For examining an application to store water under ORS
537.409:
(A) A base fee of $300; and
(B) $25 for each acre-foot or fraction thereof.
(r) For submitting a notice of intent under ORS 543A.030 or
543A.075, the amount established by the { - Water Resources
Director - } { + Director of the Oregon Department of Natural
Resources + } under ORS 543A.410.
(s) For examining an application for a substitution made under
ORS 540.524:
(A) A base fee of $630 for the first well substitution; and
(B) A fee of $300 for each additional well substitution.
(t) For examining an application for an allocation of conserved
water under ORS 537.455 to 537.500:
(A) A base fee of $850 for the first water right that is part
of the allocation; and
(B) An additional fee of $300 for each water right that is part
of the allocation beyond the first water right.
(u) For submitting a water management and conservation plan
pursuant to rules of the commission:
(A) $400, if the plan is submitted by an agricultural water
supplier;
(B) $800, if the plan is submitted by a municipal water
supplier serving a population of 1,000 or fewer persons; or
(C) $1,600, if the plan is submitted by a municipal water
supplier serving a population of more than 1,000 persons.
(v) For examining a new application for an in-stream water
right lease under ORS 537.348:
(A) $400 for an application for a lease with four or more
landowners or four or more water rights; or
(B) $250 for all other applications.
(w) For examining an application for an in-stream water right
lease renewal, $100.
(x) For submitting a claim of beneficial use under a permit
having a priority date of July 9, 1987, or later, $150.
(y) For submitting a request no later than 60 days after
cancellation of a permit under ORS 537.260 to reinstate the
permit, $400.
(z) For submitting a request for a basin program exception
under ORS 536.295, $500.
(2)(a) The department may charge a dam owner an annual fee
based upon the dam's hazard rating as determined by the
department. The fees the department may charge the dam owner are:
(A) $75 for a dam with a low hazard rating.
(B) $150 for a dam with a significant hazard rating.
(C) $500 for a dam with a high hazard rating.
(D) If the dam owner fails to pay an annual fee on or before
six months after the billing date, a late fee of $100.
(b) If a dam owner fails to pay an annual fee or a late fee
charged by the department, the department may, after giving the
dam owner notice by certified mail, place a lien on the real
property where the dam is located for the fees owed by the dam
owner.
(3) Notwithstanding the fees established under subsection (1)
of this section, the commission may establish lower examination
and permit fees by rule for:
(a) The right to appropriate water for a storage project of
five acre-feet or less; or
(b) The right to appropriate water for the purpose of allowing
the applicant to water livestock outside of a riparian area, as
that term is defined in ORS 541.351.
(4)(a) The director may refund all or part of a fee paid to the
department under this section if the director determines that a
refund of the fee is appropriate in the interests of fairness to
the public or necessary to correct an error of the department.
(b) The director may refund all or part of the protest fee
described in subsection (1)(j) of this section to the legal owner
or occupant who filed a protest under ORS 540.641 if an order of
the { - Water Resources - } commission establishes that all or
part of a water right has not been canceled or modified under ORS
540.610 to 540.650.
(5) The director may waive all or part of a fee for a change to
a water right permit under ORS 537.211 (4), a change to a water
right subject to transfer under ORS 540.520 or 540.523 or an
allocation of conserved water under ORS 537.470, if the change or
allocation of conserved water is:
(a) Made pursuant to ORS 537.348; { + or + }
(b) Necessary to complete a project funded under ORS
541.375 { + . + } { - ; or - }
{ - (c) Approved by the State Department of Fish and Wildlife
as a change or allocation of conserved water that will result in
a net benefit to fish and wildlife habitat. - }
(6) Notwithstanding the fees established pursuant to this
section, the commission may adopt by rule reduced fees for
persons submitting materials to the department in a digital
format approved by the department.
(7) All moneys received under this section, less any amounts
refunded under subsection (4) of this section, shall be deposited
in the { - Water Resources Department Water Right Operating
Fund. - } { + Oregon Natural Resources Fund. Moneys deposited
in the fund under this subsection are continuously appropriated
to the Oregon Department of Natural Resources for purposes
described in ORS 536.015. + }
{ - (8) Notwithstanding subsection (7) of this section, all
fees received by the department for power purposes under ORS
543.280 shall be deposited in the Water Resources Department
Hydroelectric Fund established by ORS 536.015. - }
SECTION 1291. ORS 536.050, as amended by section 12, chapter
819, Oregon Laws 2009, is amended to read:
536.050. (1) The { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } may collect the
following fees in advance:
(a) For examining an application for a permit:
(A) To appropriate water, except as provided under ORS 543.280
for an application for a hydroelectric project:
(i) A base fee of $500 for an appropriation of water through a
single use, point of diversion or point of appropriation;
(ii) $200 for the first second-foot or fraction thereof
appropriated under the permit;
(iii) $100 for each additional second-foot or fraction thereof
appropriated under the permit;
(iv) $200 for each additional use, point of diversion or point
of appropriation included in the application; and
(v) If appropriating stored water, $20 for the first acre-foot
or fraction thereof up to 20 acre-feet, plus $1 for each
additional acre-foot or fraction thereof.
(B) To store water under ORS 537.400 or 537.534 (4):
(i) A base fee of $500; and
(ii) $20 for the first acre-foot or fraction thereof up to 20
acre-feet, plus $1 for each additional acre-foot or fraction
thereof.
(C) To exclusively appropriate stored water:
(i) A base fee of $250; and
(ii) $15 for the first acre-foot or fraction thereof up to 10
acre-feet, plus $1 for each additional acre-foot or fraction
thereof.
(b) For recording a permit to appropriate or store water, $300.
(c) For filing and recording the assignment or partial
assignment of a water right application, permit or license under
ORS 537.220 or 537.635, $50.
(d) For copying records in the department, $2 for the first
page and 50 cents for each additional page.
(e) For certifying copies, documents, records or maps, $10 for
each certificate.
(f) For a blueprint copy of any map or drawing, the actual cost
of the work.
(g) For a computer-generated map, the actual cost of the work.
(h) For examining an application for approval of a change to an
existing water right or permit:
(A) A base fee of $400 for a change to a single water right or
permit;
(B) $400 for each additional type of change requested;
(C) For a request for a change in place of use or type of use
or for a water exchange under ORS 540.533, $200 for each
second-foot or fraction thereof requested beyond the first
second-foot; and
(D) $200 for each additional water right or permit included in
the application.
(i) For examining an application for a temporary change in
place of use under ORS 540.523, for a temporary transfer under
ORS 540.585 or for a temporary change in place of use, a change
in the point of diversion to allow for the appropriation of
ground water or a change of a primary right to a supplemental
right under ORS 540.570, a base fee of $200 for the first water
right or permit, plus $50 for each additional water right or
permit included in the application and:
(A) For nonirrigation uses, $80 for each second-foot or
fraction thereof requested beyond the first second-foot; or
(B) For irrigation uses, $1 per acre of land irrigated or, if
the application and required map are submitted to the department
in a department-approved digital format, 25 cents per acre of
land irrigated.
(j) For submitting a protest to the department, $350.
(k) For filing an application for extension of time within
which irrigation or other works shall be completed or a water
right perfected, $350.
(L) For a limited license under ORS 537.143 or 537.534 (2), the
fee established by rule by the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + }.
(m) For filing, examining and certifying a petition under ORS
541.329, $250 plus 10 cents per acre of water involved in the
application. For purposes of computing this fee, when any acreage
within a quarter quarter of a section is involved, the 10 cents
per acre shall apply to all acres in that quarter quarter of a
section. Notwithstanding the fee amount established in this
paragraph, a district notifying the department under ORS 541.327
(4) shall pay the actual cost of filing, examining and certifying
the petition.
(n) For requesting standing under ORS 537.153, 537.621 or
543A.120, $100.
(o) For participating in a contested case proceeding under ORS
537.170, 537.622 or 543A.130, $250.
(p) Except for an applicant, for obtaining a copy of both a
proposed final order and a final order for a water right
application under ORS 537.140 to 537.252, 537.505 to 537.795 or
543A.005 to 543A.300 or an extension issued under ORS 537.230,
537.248 or 537.630, $10.
(q) For examining an application to store water under ORS
537.409:
(A) A base fee of $80; and
(B) $20 for each acre-foot or fraction thereof.
(r) For submitting a notice of intent under ORS 543A.030 or
543A.075, the amount established by the { - Water Resources
Director - } { + Director of the Oregon Department of Natural
Resources + } under ORS 543A.410.
(s) For examining an application for a substitution made under
ORS 540.524, $280.
(t) For examining an application for an allocation of conserved
water under ORS 537.455 to 537.500, $700.
(u) For submitting a water management and conservation plan
pursuant to rules of the commission:
(A) $250, if the plan is submitted by an agricultural water
supplier;
(B) $500, if the plan is submitted by a municipal water
supplier serving a population of 1,000 or fewer persons; or
(C) $1,000, if the plan is submitted by a municipal water
supplier serving a population of more than 1,000 persons.
(v) For examining a new application for an in-stream water
right lease under ORS 537.348:
(A) $200 for an application for a lease with four or more
landowners or four or more water rights; or
(B) $100 for all other applications.
(w) For examining an application for an in-stream water right
lease renewal, $50.
(2) Notwithstanding the fees established under subsection (1)
of this section, the commission may establish lower examination
and permit fees by rule for:
(a) The right to appropriate water for a storage project of
five acre-feet or less; or
(b) The right to appropriate water for the purpose of allowing
the applicant to water livestock outside of a riparian area, as
that term is defined in ORS 541.351.
(3)(a) The director may refund all or part of a fee paid to the
department under this section if the director determines that a
refund of the fee is appropriate in the interests of fairness to
the public or necessary to correct an error of the department.
(b) The director may refund all or part of the protest fee
described in subsection (1)(j) of this section to the legal owner
or occupant who filed a protest under ORS 540.641 if an order of
the { - Water Resources - } commission establishes that all or
part of a water right has not been canceled or modified under ORS
540.610 to 540.650.
(4) The director may waive all or part of a fee for a change to
a water right permit under ORS 537.211 (4), a change to a water
right subject to transfer under ORS 540.520 or 540.523 or an
allocation of conserved water under ORS 537.470, if the change or
allocation of conserved water is:
(a) Made pursuant to ORS 537.348; { + or + }
(b) Necessary to complete a project funded under ORS
541.375 { + . + } { - ; or - }
{ - (c) Approved by the State Department of Fish and Wildlife
as a change or allocation of conserved water that will result in
a net benefit to fish and wildlife habitat. - }
(5) Notwithstanding the fees established pursuant to this
section, the commission may adopt by rule reduced fees for
persons submitting materials to the department in a digital
format approved by the department.
(6) All moneys received under this section, less any amounts
refunded under subsection (3) of this section, shall be deposited
in the { - Water Resources Department Water Right Operating
Fund. - } { + Oregon Natural Resources Fund. Moneys deposited
in the fund under this subsection are continuously appropriated
to the Oregon Department of Natural Resources for purposes
described in ORS 536.015. + }
{ - (7) Notwithstanding subsection (6) of this section, all
fees received by the department for power purposes under ORS
543.280 shall be deposited in the Water Resources Department
Hydroelectric Fund established by ORS 536.015. - }
SECTION 1292. ORS 536.055 is amended to read:
536.055. (1) The { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } may, with any
person, enter into an agreement that sets fees to be paid to the
department for the purpose of enabling the department to expedite
or enhance the regulatory process { - to provide services
voluntarily requested under the agreement - } { + of providing
services related to the water resources of this state + }.
Pursuant to the agreement, the department may hire additional
temporary staff members, contract for services or provide
additional services to the person that are within the authority
of the department to provide.
(2) Notwithstanding the fees established in ORS 536.050, as
part of an agreement entered into under this section, the
department may waive all or part of a fee imposed for a service.
(3) The department may not modify existing processing
priorities or schedules or create processing priorities or
schedules for a particular department-provided service in order
to compel a person to enter into an agreement under this section.
However, without violating this subsection, the department may
modify its processing priorities or schedules based on the
overall operating needs of the department.
(4) The department may not require that a person pay more for a
service under an agreement entered into under this section than
the cost to the department in providing the service to the
person.
(5) The department shall review the responsibilities of the
department to identify services provided by the department that
are appropriate for the department to perform under the
provisions of this section. Failure to identify responsibilities
under this subsection does not prohibit the department from
entering into agreements under this section.
(6) Fees paid under this section shall be deposited in the
State Treasury to the credit of the department. Such moneys are
continuously appropriated to the department for the purpose of
reviewing department responsibilities to determine those services
for which the authority provided in this section may be used and
for fulfilling the individual agreements entered into pursuant to
this section, including the processing and review of:
(a) Water right permit applications, permit extensions, permit
amendments and final proof surveys;
(b) Water right exchanges and transfers; and
(c) Water management and conservation plans required by rule by
the department.
SECTION 1293. ORS 536.075 is amended to read:
536.075. (1) Any party affected by a final order other than
contested case { - issued by the Water Resources Commission or
Water Resources Department - } { + issued by the Oregon Natural
Resources Commission or the Oregon Department of Natural
Resources that relates to the administration of the water
resources of this state + } may appeal the order to the Circuit
Court of Marion County or to the circuit court of the county in
which all or part of the property affected by the order is
situated. The review shall be conducted according to the
provisions of ORS 183.484, 183.486, 183.497 and 183.500. A final
order other than contested case issued by the { - Water
Resources Commission or the Water Resources Department - }
{ + commission or department that relates to the administration
of the water resources of this state + } must state on the first
page of the order that the order is a final order other than
contested case, that the order is subject to judicial review
under ORS 183.484 and that any petition for judicial review of
the order must be filed within the time specified by ORS 183.484
(2). Any order other than contested case issued by the
{ - Water Resources Commission or by the Water Resources
Department - } { + commission or department that relates to the
administration of the water resources of this state + } that does
not comply with the requirements of this section is not a final
order.
(2) Any party affected by a final order in a contested case
issued by the { - Water Resources Commission or the Water
Resources Department - } { + commission or department that
relates to the administration of the water resources of this
state + } may appeal the order to the Court of Appeals.
(3) An appeal under subsection (2) of this section shall be
conducted as provided in ORS 183.482 except as specifically
provided in subsections (4), (5) and (6) of this section.
(4) { - The petition - } { + A petition challenging an
order issued under subsections (1) or (2) of this section + }
shall state the facts showing how the petitioner is adversely
affected by the order and the ground or grounds upon which the
petitioner contends the order should be reversed or remanded.
(5) The filing of a petition { + challenging an order issued
under subsections (1) or (2) of this section + } in either the
circuit court or the Court of Appeals shall stay enforcement of
the order of the commission or the department unless the
commission or the department determines that substantial public
harm will result if the order is stayed. If the commission or the
department denies the stay, the denial shall be in writing and
shall specifically state the substantial public harm that will
result from allowing the stay.
(6) The review by the Court of Appeals under subsection (2) of
this section shall be on the entire record forwarded by the
commission or department. The court may remand the case for
further evidence taking, correction or other necessary action.
The court may affirm, reverse, modify or supplement the order
appealed from, and make such disposition of the case as the court
determines to be appropriate.
(7) The provisions of this section shall not apply to any
proceeding under ORS 537.670 to 537.695 or ORS chapter 539.
(8) For the purposes of this section, 'final order' and '
contested case' have the meanings given those terms in ORS
183.310.
SECTION 1294. ORS 536.090 is amended to read:
536.090. (1) In carrying out the duties, functions and powers
prescribed by law, the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } shall appoint a
ground water advisory committee to:
(a) Advise the commission on all matters relating to:
(A) Rules for the development, securing, use and protection of
ground water; and
(B) Licensing of well constructors, including the examination
of such persons for license.
(b) Review the proposed expenditure of all revenues generated
under ORS 537.762 (5). At least once each year, and before the
expenditure of such funds on new program activities, the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + } and the ground water advisory committee
shall develop jointly a proposed expenditure plan for concurrence
by the { - Water Resources - } commission. The plan may be
modified, if necessary, upon the joint recommendation of the
department and the ground water advisory committee with
concurrence by the commission.
(2) The committee shall consist of nine members who represent a
range of interests or expertise. At least three of the members
shall be individuals actively engaged in some aspect of the water
supply or monitoring well drilling industry. Members shall serve
for such terms as the commission may specify. The committee shall
meet at least once every three months and at other times and
places as the commission may specify.
(3) A member of the committee { - shall - } { + may + } not
receive compensation, but at the discretion of the commission may
be reimbursed for travel expenses incurred, subject to ORS
292.495.
SECTION 1295. ORS 536.220 is amended to read:
536.220. (1) The Legislative Assembly recognizes and declares
that:
(a) The maintenance of the present level of the economic and
general welfare of the people of this state and the future growth
and development of this state for the increased economic and
general welfare of the people thereof are in large part dependent
upon a proper utilization and control of the water resources of
this state, and such use and control is therefore a matter of
greatest concern and highest priority.
(b) A proper utilization and control of the water resources of
this state can be achieved only through a coordinated, integrated
state water resources policy, through plans and programs for the
development of such water resources and through other activities
designed to encourage, promote and secure the maximum beneficial
use and control of such water resources, all carried out by a
single state agency.
(c) The economic and general welfare of the people of this
state have been seriously impaired and are in danger of further
impairment by the exercise of some single-purpose power or
influence over the water resources of this state or portions
thereof by each of a large number of public authorities, and by
an equally large number of legislative declarations by statute of
single-purpose policies with regard to such water resources,
resulting in friction and duplication of activity among such
public authorities, in confusion as to what is primary and what
is secondary beneficial use or control of such water resources
and in a consequent failure to utilize and control such water
resources for multiple purposes for the maximum beneficial use
and control possible and necessary.
(2) The Legislative Assembly, therefore, finds that:
(a) It is in the interest of the public welfare that a
coordinated, integrated state water resources policy be
formulated and means provided for its enforcement, that plans and
programs for the development and enlargement of the water
resources of this state be devised and promoted and that other
activities designed to encourage, promote and secure the maximum
beneficial use and control of such water resources and the
development of additional water supplies be carried out by a
single state agency which, in carrying out its functions, shall
give proper and adequate consideration to the multiple aspects of
the beneficial use and control of such water resources with an
impartiality of interest except that designed to best protect and
promote the public welfare generally.
(b) The state water resources policy shall be consistent with
the goal set forth in ORS 468B.155.
(3)(a) The { - Water Resources Department - } { + Oregon
Department of Natural Resources + } shall develop an integrated
state water resources strategy to implement the state water
resources policy specified in subsection (2) of this section. The
department shall design the strategy to meet Oregon's in-stream
and out-of-stream water needs.
(b) The { - Water Resources Department shall work in close
cooperation with the Department of Environmental Quality and the
State Department of Fish and Wildlife - } { + Oregon Department
of Natural Resources and the Department of Environmental Quality
shall collaborate + } to develop the integrated state water
resources strategy in consultation with other state, local and
federal agencies, with other states, with Indian tribes, with
stakeholders and with the public.
(c) The { - Water Resources Department, in close cooperation
with the Department of Environmental Quality and the State
Department of Fish and Wildlife, - } { + Oregon Department of
Natural Resources, in cooperation with the Department of
Environmental Quality, + } shall develop data on an ongoing basis
to forecast Oregon's in-stream and out-of-stream water needs,
including but not limited to in-stream, underground water, human
consumption and water supply needs, for the purpose of developing
and updating the integrated state water resources strategy.
(d) The integrated water resources strategy shall describe the
following:
(A) Oregon's in-stream and out-of-stream water needs, including
but not limited to ecosystem services, water quality and water
supply needs.
(B) Objectives of the strategy.
(C) Actions that are designed to achieve the objectives of the
strategy.
(D) Plans related to the challenges presented by climate
change.
(E) Provisions to ensure communication and partnership with key
stakeholders.
(F) Specific functions and roles to be played by { - state
agencies, including but not limited to the State Department of
Agriculture, the State Forestry Department, the Department of
Human Services, the Oregon Business Development Department, the
Department of Land Conservation and Development, the Oregon
Watershed Enhancement Board, the State Parks and Recreation
Department, the Department of State Lands and other - } relevant
state agencies { + , including the State Department of
Agriculture, the Department of Human Services and the Oregon
Business Development Department + }.
(G) Public policy options and recommendations.
(H) Relevant strategy factors, including but not limited to
population growth and land use change.
(I) Recommendations of the { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } regarding the
continuous monitoring of climate change effects on Oregon's water
supply and regarding water user actions that are necessary to
address climate change.
(e)(A) The { - Water Resources Commission shall give the
Environmental Quality Commission, the State Department of
Agriculture and the State Department of Fish and Wildlife - }
{ + Oregon Natural Resources Commission shall give the
Environmental Quality Commission and the State Department of
Agriculture + } notice of the integrated state water resources
strategy prior to adoption of the strategy. The strategy shall
take effect upon adoption by the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + }.
(B) The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } shall review and update the
integrated state water resources strategy every five years. The
{ - Water Resources Commission shall give notice to the
Environmental Quality Commission, the State Department of
Agriculture and the State Department of Fish and Wildlife - }
{ + Oregon Natural Resources Commission shall give notice to the
Environmental Quality Commission and the State Department of
Agriculture + } prior to adopting any revisions of the strategy.
Revisions of the strategy shall take effect upon the { - Water
Resources Commission's - } { + Oregon Natural Resources
Commission's + } adoption of the revised strategy by reference in
rule.
(4) This section does not limit the authority granted the
Environmental Quality Commission or the Department of
Environmental Quality under ORS chapter 468B.
SECTION 1296. ORS 536.235 is amended to read:
536.235. It is the policy of the State of Oregon that
establishment of minimum perennial streamflows is a high priority
of the { - Water Resources Commission and the Water Resources
Department - } { + Oregon Department of Natural Resources and
the Oregon Natural Resources Commission + }.
SECTION 1297. ORS 536.295 is amended to read:
536.295. (1) Notwithstanding any provision of ORS 536.300 or
536.340, the { - Water Resources Commission may allow the Water
Resources Department - } { + Oregon Natural Resources
Commission may allow the Oregon Department of Natural
Resources + } to consider an application to appropriate water for
a use not classified in the applicable basin program if the use:
(a) Will be of short duration during each year;
(b) Will be for a continuous period of no longer than five
years;
(c) Is largely nonconsumptive in nature and not likely to be
regulated for other water rights;
(d) Is necessary to ensure public health, welfare and safety;
(e) Is necessary to avoid extreme hardship;
(f) Will provide a public benefit such as riparian or watershed
improvement; or
(g) Is of an unusual nature not likely to recur in the basin,
and unlikely to have been within the uses considered by the
commission in classifying the uses presently allowed in the
applicable basin program including but not limited to:
(A) Exploratory thermal drilling;
(B) Heat exchange;
(C) Maintaining water levels in a sewage lagoon; or
(D) Facilitating the watering of livestock away from a river or
stream.
(2) A permit granted on or before January 1, 1993, for a
quasi-municipal use of water shall be considered a permit for a
classified use under ORS 536.340 if at the time the application
was submitted or the permit was granted, the basin program
identified municipal use as a classified use.
(3) The commission by rule may determine the specific uses
permitted within a classified use.
(4) In making the determination under subsection (1) of this
section, the commission shall evaluate whether the proposed use
is consistent with the general policies established in the
applicable basin program.
(5) The { - Water Resources - } department shall process and
evaluate an application allowed by the commission under
subsections (1) to (4) of this section in the same manner as any
other water right application, including determining whether the
proposed use would result in injury to an existing water right.
SECTION 1298. ORS 536.300 is amended to read:
536.300. (1) The { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } shall proceed as
rapidly as possible to study: existing water resources of this
state; means and methods of conserving and augmenting such water
resources; existing and contemplated needs and uses of water for
domestic, municipal, irrigation, power development, industrial,
mining, recreation, wildlife, and fish life uses and for
pollution abatement, all of which are declared to be beneficial
uses, and all other related subjects, including drainage,
reclamation, floodplains and reservoir sites.
(2) Based upon said studies and after an opportunity to be
heard has been given to all other state agencies which may be
concerned, the commission shall progressively formulate an
integrated, coordinated program for the use and control of all
the water resources of this state and issue statements thereof.
(3) The commission may adopt or amend a basin program only
after holding at least one public hearing in the affected river
basin. After the commission itself conducts one public hearing in
the affected river basin, the commission may delegate to the
{ - Water Resources Director - } { + Director of the Oregon
Department of Natural Resources + } the authority to conduct
additional public hearings in the affected river basin.
SECTION 1299. ORS 536.310 is amended to read:
536.310. In formulating the water resources program under ORS
536.300 (2), the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } shall take into
consideration the purposes and declarations enumerated in ORS
536.220 and also the following additional declarations of policy:
(1) Existing rights, established duties of water, and relative
priorities concerning the use of the waters of this state and the
laws governing the same are to be protected and preserved subject
to the principle that all of the waters within this state belong
to the public for use by the people for beneficial purposes
without waste;
(2) It is in the public interest that integration and
coordination of uses of water and augmentation of existing
supplies for all beneficial purposes be achieved for the maximum
economic development thereof for the benefit of the state as a
whole;
(3) That adequate and safe supplies be preserved and protected
for human consumption, while conserving maximum supplies for
other beneficial uses;
(4) Multiple-purpose impoundment structures are to be preferred
over single-purpose structures; upstream impoundments are to be
preferred over downstream impoundments. The fishery resource of
this state is an important economic and recreational asset. In
the planning and construction of impoundment structures and
milldams and other artificial obstructions, due regard shall be
given to means and methods for its protection;
(5) Competitive exploitation of water resources of this state
for single-purpose uses is to be discouraged when other feasible
uses are in the general public interest;
(6) In considering the benefits to be derived from drainage,
consideration shall also be given to possible harmful effects
upon ground water supplies and protection of wildlife;
(7) The maintenance of minimum perennial streamflows sufficient
to support aquatic life, to minimize pollution and to maintain
recreation values shall be fostered and encouraged if existing
rights and priorities under existing laws will permit;
(8) Watershed development policies shall be favored, whenever
possible, for the preservation of balanced multiple uses, and
project construction and planning with those ends in view shall
be encouraged;
(9) Due regard shall be given in the planning and development
of water recreation facilities to safeguard against pollution;
(10) It is of paramount importance in all cooperative programs
that the principle of the sovereignty of this state over all the
waters within the state be protected and preserved, and such
cooperation by the commission shall be designed so as to
reinforce and strengthen state control;
(11) Local development of watershed conservation, when
consistent with sound engineering and economic principles, is to
be promoted and encouraged;
(12) When proposed uses of water are in mutually exclusive
conflict or when available supplies of water are insufficient for
all who desire to use them, preference shall be given to human
consumption purposes over all other uses and for livestock
consumption, over any other use, and thereafter other beneficial
purposes in such order as may be in the public interest
consistent with the principles of chapter 707, Oregon Laws 1955,
under the existing circumstances; and
(13) Notwithstanding any other provision of this section, when
available supplies of water are insufficient in the South Umpqua
River to provide for both the needs of human consumption pursuant
to a municipal water right and the maintenance of previously
established minimum streamflows, preference shall be given to the
municipal needs if the municipality adopts and enforces an
ordinance restricting use of the water so obtained to direct
human consumption uses.
SECTION 1300. ORS 536.315 is amended to read:
536.315. As part of the water resources policy statement
authorized under ORS 536.300, the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + } may
designate the exact land areas included within the auxiliary
lands described in ORS 536.007.
SECTION 1301. ORS 536.320 is amended to read:
536.320. { - The Water Resources Commission shall - }
{ + In the administration of the water resources of this state,
the Oregon Natural Resources Commission does + } not have power:
(1) To interfere with, supervise or control the internal
affairs of any state agency or public corporation;
(2) To modify, set aside or alter any existing right to use
water or the priority of such use established under existing
laws; or
(3) To modify or amend any standard or policy as prescribed in
ORS 536.310 nor to adopt any rule or regulation in conflict
therewith.
SECTION 1302. ORS 536.330 is amended to read:
536.330. Chapter 707, Oregon Laws 1955, shall be construed by
the { - Water Resources Commission - } { + Oregon Natural
Resources Commission + } as supplemental to existing statutes and
not in lieu thereof except to the extent that existing statutes
are expressly amended or repealed by chapter 707, Oregon Laws
1955. ORS 536.220 to 536.540 and the authority of the { - Water
Resources Department - } { + Oregon Department of Natural
Resources + } thereunder shall include all laws now existing or
hereinafter enacted that relate to or affect the use and control
of the water resources of this state.
SECTION 1303. ORS 536.340 is amended to read:
536.340. (1) Subject at all times to existing rights and
priorities to use waters of this state, the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + }:
(a) May, by a water resources statement referred to in ORS
536.300 (2), classify and reclassify the lakes, streams,
underground reservoirs or other sources of water supply in this
state as to the highest and best use and quantities of use
thereof for the future in aid of an integrated and balanced
program for the benefit of the state as a whole. The commission
may so classify and reclassify portions of any such sources of
water supply separately. Classification or reclassification of
sources of water supply as provided in this subsection has the
effect of restricting the use and quantities of use thereof to
the uses and quantities of uses specified in the classification
or reclassification, and no other uses or quantities of uses
except as approved by the commission under ORS 536.370 to 536.390
or as accepted by the commission under ORS 536.295. Restrictions
on use and quantities of use of a source of water supply
resulting from a classification or reclassification under this
subsection shall apply to the use of all waters of this state
affected by the classification or reclassification, and shall
apply to uses listed in ORS 537.545 that are initiated after the
classification or reclassification that imposes the restriction.
(b) Shall diligently enforce laws concerning cancellation,
release and discharge of excessive unused claims to waters of
this state to the end that such excessive and unused amounts may
be made available for appropriation and beneficial use by the
public.
(c) May, by a water resources statement referred to in ORS
536.300 (2) and subject to the preferential uses named in ORS
536.310 (12), prescribe preferences for the future for particular
uses and quantities of uses of the waters of any lake, stream or
other source of water supply in this state in aid of the highest
and best beneficial use and quantities of use thereof. In
prescribing such preferences the commission shall give effect and
due regard to the natural characteristics of such sources of
water supply, the adjacent topography, the economy of such
sources of water supply, the economy of the affected area,
seasonal requirements of various users of such waters, the type
of proposed use as between consumptive and nonconsumptive uses
and other pertinent data.
(2) In classifying or reclassifying a source of water supply or
prescribing preferences for the future uses of a source of water
supply under subsection (1) of this section, the commission
shall:
(a) Comply with the requirements set forth in the { - Water
Resources Department - } { + Oregon Department of Natural
Resources + } coordination program developed pursuant to ORS
197.180; and
(b) Cause notice of the hearing held under ORS 536.300 (3) to
be published in a newspaper of general circulation once each week
for four successive weeks in each county:
(A) In which waters affected by the action of the commission
under subsection (1) of this section are located; or
(B) That is located within the basin under consideration.
(3) Before beginning any action under subsection (2) of this
section that would limit new ground water uses that are exempt
under ORS 537.545 from the requirement to obtain a water right,
the commission shall:
(a) Review the proposed action to determine whether the
proposal is consistent with ORS 537.780;
(b) Provide an opportunity for review by:
(A) Any member of the Legislative Assembly who represents a
district where the proposed action would apply; and
(B) Any interim committee of the Legislative Assembly
responsible for water-related issues; and
(c) Receive and consider a recommendation on the proposal from
the ground water advisory committee appointed under ORS 536.090.
SECTION 1304. ORS 536.350 is amended to read:
536.350. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } shall deliver a copy of each
water resources statement referred to in ORS 536.300 (2) to each
state agency or public corporation of this state which may be
concerned with or which may carry on activities likely to affect
the use or control of the water resources of this state. Each
state agency or public corporation of this state which receives a
copy of a water resources statement shall give to the commission
a receipt for the water resources statement. A copy of any such
statement duly certified by the { - Water Resources
Director - } { + Director of the Oregon Department of Natural
Resources + } to be a full, true and correct copy shall be
received in evidence in any court in the state and if the
certificate recites that a copy of the statement was delivered to
a particular state agency or public corporation of this state, it
shall be presumed that the same was actually delivered as stated
in the certificate.
SECTION 1305. ORS 536.360 is amended to read:
536.360. In the exercise of any power, duty or privilege
affecting the water resources of this state, every state agency
or public corporation of this state shall give due regard to the
statements of the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } and shall conform
thereto. No exercise of any such power, duty or privilege by any
such state agency or public corporation which would tend to
derogate from or interfere with the state water resources policy
shall be lawful.
SECTION 1306. ORS 536.370 is amended to read:
536.370. (1) No exercise by any state agency or public
corporation of this state which has received a copy of a state
water resources statement as provided in ORS 536.350, of any
power, duty or privilege, including the promulgating or
undertaking of any order, rule, regulation, plan, program,
policy, project or any other activity, which would in any way
conflict with the state water resources policy as set forth in
the statement, shall be effective or enforceable until approved
by the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + } as provided in subsection (2) of this
section.
(2) The exercise of any power, duty or privilege referred to in
subsection (1) of this section shall be deemed approved by the
commission if:
(a) The commission grants its approval as provided in ORS
536.390; or
(b) The commission does not notify the state agency or public
corporation within 30 days after the filing of the notification
as provided in ORS 536.380 (1) of the intention of the commission
to review the proposed exercise of the power, duty or privilege;
or
(c) The commission grants its approval as provided in ORS
536.380 (4).
SECTION 1307. ORS 536.380 is amended to read:
536.380. (1) Except as otherwise provided in ORS 536.390,
whenever any state agency or public corporation of this state
which has received a copy of a state water resources statement as
provided in ORS 536.350, proposes to exercise any power, duty or
privilege referred to in ORS 536.370 (1), it shall first file
with the { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } a notification of the proposed
exercise. The notification shall be in such form and shall
contain a description of the proposed exercise and such other
information as the commission may require. The notification shall
be a public record in the office of the commission.
(2) Within 30 days after the filing of the notification as
provided in subsection (1) of this section, the commission shall
notify the state agency or public corporation of the intention of
the commission to review the proposed exercise of the power, duty
or privilege, if:
(a) The commission, in its discretion, determines that a review
should be undertaken; or
(b) A protest against the proposed exercise is filed with the
commission within 25 days after the filing of the notification as
provided in subsection (1) of this section by any person, state
agency or public corporation of this state or agency of the
federal government.
(3) The commission, in its discretion, may hold a public
hearing on the proposed exercise of the power, duty or privilege.
The commission shall determine the time and place of the public
hearing, and shall give written notice thereof to the state
agency or public corporation whose proposed exercise of a power,
duty or privilege is being reviewed and to each protestant under
subsection (2)(b) of this section, if any, at least 10 days prior
to the hearing. Notice of the hearing shall also be published in
at least one issue each week for at least two consecutive weeks
prior to the hearing in a newspaper of general circulation
published in each county in which the proposed exercise of the
power, duty or privilege is to take place or be effective.
(4) After the commission has notified the state agency or
public corporation of the intention of the commission to review
the proposed exercise of the power, duty or privilege as provided
in subsection (2) of this section, the commission shall undertake
the review and proceed therewith with reasonable diligence. At
the conclusion of the review the commission shall make a
determination approving the proposed exercise, approving the
proposed exercise subject to conditions specified in the
determination or disapproving the proposed exercise. A copy of
the determination by the commission shall be delivered to the
state agency or public corporation whose proposed exercise of a
power, duty or privilege was reviewed and to each protestant
under subsection (2)(b) of this section, if any.
SECTION 1308. ORS 536.390 is amended to read:
536.390. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } may enter into agreements or
provide by orders, rules or regulations whereby it approves the
exercise of any one or more of the powers, duties or privileges
referred to in ORS 536.370 (1) by a state agency or public
corporation of this state which has received a copy of a state
water resources statement as provided in ORS 536.350, without the
filing of the notification as provided in ORS 536.380 (1). Each
agreement, order, rule or regulation shall specifically provide
for the modification or revocation thereof at the discretion of
the commission and upon reasonable notice to the state agency or
public corporation, and may contain such other conditions,
limitations or requirements as the commission, in its discretion,
may require to insure the accomplishment of the purposes of the
state water resources policy.
SECTION 1309. ORS 536.400 is amended to read:
536.400. (1) As used in subsection (2) of this section, '
violation' means any exercise or attempt to exercise by any state
agency or public corporation of this state which has received a
copy of a state water resources statement as provided in ORS
536.350, of any power, duty or privilege which would in any way
conflict with the state water resources statement, without the
approval of the { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } as provided in ORS 536.370 (2).
(2) The commission, may apply to the circuit court of the
county in which a violation is alleged to exist for the
restraining by appropriate process of the commission or
continuation of a violation, or for the enforcement by
appropriate process of compliance with ORS 536.370 to 536.390.
SECTION 1310. ORS 536.410 is amended to read:
536.410. (1) When the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } determines that it
is necessary to insure compliance with the state water resources
policy or that it is otherwise necessary in the public interest
to conserve the water resources of this state for the maximum
beneficial use and control thereof that any unappropriated waters
of this state, including unappropriated waters released from
storage or impoundment into the natural flow of a stream for
specified purposes, be withdrawn from appropriation for all or
any uses including exempt uses under ORS 537.545, the commission,
on behalf of the state, may issue an order of withdrawal.
(2) Prior to the issuance of the order of withdrawal the
commission shall hold a public hearing on the necessity for the
withdrawal. Notice of the hearing shall be published in at least
one issue each week for at least two consecutive weeks prior to
the hearing in a newspaper of general circulation published in
each county in which are located the waters proposed to be
withdrawn.
(3) The order of withdrawal shall specify with particularity
the waters withdrawn from appropriation, the uses for which the
waters are withdrawn, the reason for the withdrawal and the
duration of the withdrawal. The commission may modify or revoke
the order at any time.
(4) Copies of the order of withdrawal and notices of any
modification or revocation of the order of withdrawal shall be
filed in the { - Water Resources Department - } { + Oregon
Department of Natural Resources + }.
(5) While the order of withdrawal is in effect, no application
for a permit to appropriate the waters withdrawn for the uses
specified in the order and no application for a preliminary
permit or license involving appropriations of such waters shall
be received for filing by the { - Water Resources - }
commission.
SECTION 1311. ORS 536.420 is amended to read:
536.420. (1) The Governor shall designate the { - Water
Resources Director or a member or members of the Water Resources
Commission - } { + Director of the Oregon Department of Natural
Resources or a member or members of the Oregon Natural Resources
Commission + } to act on behalf of and to represent the state in
formulating, entering into and carrying out any formal or
informal compact or other agreement authorized by the Legislative
Assembly concerning the use and control of the water resources of
this state, between this state or any state agency or public
corporation thereof and any other state, any state agency or
public corporation thereof or the federal government or any
agency thereof.
(2) The representative or representatives designated by the
Governor under subsection (1) of this section shall make every
effort practicable to ensure that the compact or other agreement,
as formulated, entered into and carried out, is in harmony with
the state water resources policy and otherwise with the public
interest in encouraging, promoting and securing the maximum
beneficial use and control of the water resources of this state.
(3) The commission in carrying out an investigation pertaining
to water resources may cooperate with state agencies of
California for the purpose of formulating, executing and
submitting to the legislatures of Oregon and California for their
approval, interstate compacts relative to the distribution and
use of the waters of Goose Lake and tributaries thereto. No
compacts or agreements formulated as provided in this section are
binding upon this state until they have been approved by the
legislature of this state and the Congress of the United States.
(4) Any state agency or public corporation of this state
required or permitted by law to formulate, enter into or carry
out any compact or other agreement referred to in subsection (1)
of this section shall give timely and adequate notice to the
commission before it undertakes any action under such requirement
or permission.
SECTION 1312. ORS 536.430 is amended to read:
536.430. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } shall devise plans and programs
for the development of the water resources of this state in such
a manner as to encourage, promote and secure the maximum
beneficial use and control thereof.
SECTION 1313. ORS 536.440 is amended to read:
536.440. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + }, by itself or in conjunction
with any person, local voluntary committee or association, state
agency or public corporation of this or any other state, any
interstate agency or any agency of the federal government, may
conduct such investigations, surveys or studies, including the
holding of public hearings, relating to the water resources of
this state as it deems necessary to facilitate and assist in
{ - carrying out its functions as provided by law - }
{ + administering the water resources of this state + }.
SECTION 1314. ORS 536.450 is amended to read:
536.450. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } may make available technical
advice and information for the purpose of assisting any person,
local voluntary committee or association, state agency or public
corporation of this state, any interstate agency or any agency of
the federal government in the preparation, carrying into effect
and properly sustaining any plan, program or project concerning
the use or control of the water resources of this state in
harmony with the state water resources policy or otherwise with
the public interest in encouraging, promoting and securing the
maximum beneficial use and control of the water resources of this
state.
SECTION 1315. ORS 536.460 is amended to read:
536.460. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } may prepare and submit
information or proposals and recommendations relating to the
water resources of this state or the { - functions of the
commission as provided by law - } { + administration of the
water resources of this state + } to any person, local voluntary
committee or association, state agency or public corporation of
this or any other state, any interstate agency, any agency of the
federal government or any committee of the legislature of this or
any other state or of the Congress of the United States.
SECTION 1316. ORS 536.470 is amended to read:
536.470. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } may consult and cooperate with
any state agency or public corporation of this or any other
state, any interstate agency or any agency of the federal
government for the purpose of promoting coordination between
local, state, interstate and federal plans, programs and projects
for the use or control of the water resources of this state or to
facilitate and assist the commission in { - carrying out its
functions as provided by law - } { + administering the water
resources of this state + }.
SECTION 1317. ORS 536.480 is amended to read:
536.480. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + }, insofar as { + is + }
practicable, shall make available, free or at cost, to the public
and to any state agency or public corporation of this or any
other state, any interstate agency or any agency of the federal
government, information concerning the water resources of this
state or the { - functions of the commission as provided by
law - } { + administration of the water resources of this
state + }, including information relating to the state water
resources policy, to any plan or program devised by the
commission for the development of the water resources of this
state, to the results of any investigation, survey or study
{ + of the water resources of this state + } conducted by the
commission and to the results of any hearing { + concerning the
water resources of this state + }held by the commission.
SECTION 1318. ORS 536.490 is amended to read:
536.490. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + }, or any member thereof or any
other person designated by the commission, may attend and
participate in any public conference, meeting or hearing held
within or without this state for the purpose of considering water
resources problems.
SECTION 1319. ORS 536.500 is amended to read:
536.500. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } may accept and expend moneys
from any public or private source, including the federal
government, made available for the purpose of encouraging,
promoting and securing the maximum beneficial use and control of
the water resources of this state or to facilitate and assist in
{ - carrying out its functions as provided by law - }
{ + administering the water resources of this state + }. All
moneys received by the commission under this section shall be
deposited in the State Treasury and, unless otherwise prescribed
by the source from which such moneys were received, shall be kept
in separate accounts in the General Fund designated according to
the purposes for which the moneys were made available.
Notwithstanding the provisions of ORS 291.238, all such moneys
are continuously appropriated to the commission for the purposes
for which they were made available and shall be expended in
accordance with the terms and conditions upon which they were
made available.
SECTION 1320. ORS 536.520 is amended to read:
536.520. (1) In order to facilitate and assist in
{ - carrying out its functions as provided by law, the Water
Resources Commission - } { + administering the water resources
of this state, the Oregon Natural Resources Commission + } may:
(a) Call upon state agencies or public corporations of this
state to furnish or make available to the commission information
concerning the water resources of this state which such state
agencies or public corporations have acquired or may acquire in
the performance of their functions.
(b) Have access to the records, facilities or projects of state
agencies or public corporations of this state, insofar as such
records, facilities or projects may concern the water resources
of this state or the functions of the commission with regard
thereto.
(c) Otherwise utilize the services, records and other
facilities of state agencies or public corporations of this state
to the maximum extent practicable.
(2) Upon request by the commission, all officers and employees
of state agencies or public corporations of this state shall
cooperate to the maximum extent practicable with the commission
under subsection (1) of this section.
(3) Upon receipt and approval by the commission of approved
claims therefor, any special or extraordinary expense incurred by
any state agency or public corporation of this state in
cooperating with the commission under this section shall be paid
by the commission.
SECTION 1321. ORS 536.540 is amended to read:
536.540. All voucher claims for indebtedness or expenses
authorized and incurred by the { - Water Resources Commission
in carrying out its functions as provided by law - } { + Oregon
Natural Resources Commission in administering the water resources
of this state + } shall be approved by the commission or as
provided in ORS 293.330.
SECTION 1322. ORS 536.570 is amended to read:
536.570. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } may deposit with the State
Treasurer for safekeeping all moneys and securities which may
come into the commission's possession in connection with the
reorganization, retirement or settlement of the bonds, warrants
or other evidences of indebtedness of any irrigation district
within the state. When so deposited the State Treasurer shall
safely keep the same subject to { + the + } call of the
{ - Water Resources - } commission.
SECTION 1323. ORS 536.595 is amended to read:
536.595. In discussions held with the United States Army Corps
of Engineers over seasonal operations of impoundments within the
Willamette Basin reservoir system, including Detroit Lake, the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + } shall:
(1) Specify that the State of Oregon has determined that
Detroit Lake is an important recreational resource to the
{ - citizens - } { + residents + } of Oregon.
(2) Encourage the United States Army Corps of Engineers to
place Detroit Lake as the highest priority recreational use lake
in the Willamette Basin reservoir system.
(3) If the United States Army Corps of Engineers indicates that
recreational use of Detroit Lake will not receive the highest
priority, notify communities that may be detrimentally affected
by such a decision and hold public meetings within the affected
communities.
SECTION 1324. ORS 536.700 is amended to read:
536.700. As used in ORS 536.700 to 536.780, 'drainage basin'
means one of the 18 Oregon drainage basins identified { - by
the Water Resources Department as shown on maps published by that
department - } { + on maps published by the Water Resources
Department and + } dated January 1976.
SECTION 1325. ORS 536.720 is amended to read:
536.720. (1) Because municipal and other political subdivision
boundaries do not conform with the geographic boundaries of the
18 major drainage basins, or associated subbasins in the state,
and because problems caused by a severe continuing drought may
exceed local ability to control, the Legislative Assembly
declares that water resource conservation in time of severe,
continuing drought requires the exercise of state authority.
(2)(a) After a declaration that a severe, continuing drought
exists, or is likely to exist, the Governor may order individual
state agencies and political subdivisions within any drainage
basin or subbasin to implement, within a time certain following
the declaration, a water conservation or curtailment plan or
both, approved under ORS 536.780.
(b) Each state agency and political subdivision ordered to
implement a water conservation or curtailment plan shall file
with the { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } such periodic reports regarding
implementation of the plans as the commission or the Governor may
require.
(3) Orders provided for in subsection (2) of this section and
curtailments, adjustments, allocations and regulations ordered
pursuant thereto shall be designed insofar as practicable not to
discriminate within any class of consumers.
(4) It is the intent of the Legislative Assembly that
curtailments, adjustments, allocations and regulations ordered
pursuant to subsection (2) of this section be continued only so
long as a declaration by the Governor of the existence of severe,
continuing drought is in effect.
(5) The Governor may direct individual state agencies and
political subdivisions of this state to seek enforcement of all
orders and regulations issued pursuant to ORS 536.780 and
subsection (2) of this section.
SECTION 1326. ORS 536.730 is amended to read:
536.730. Except as provided in ORS 536.740 and 536.750, nothing
in ORS 536.700 to 536.780 is intended to permit the Governor or
the { - Water Resources Commission - } { + Oregon Natural
Resources Commission + } to hinder the ability of any holder of a
vested water right to obtain and use legally assured benefits of
that right.
SECTION 1327. ORS 536.750 is amended to read:
536.750. (1) Notwithstanding any provision of ORS chapters 536
to 543A, after a declaration that a severe, continuing drought
exists, the { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } may:
(a) Issue without first conducting a hearing under ORS 537.170,
a temporary permit for an emergency use of water;
(b) Allow a temporary change in use, place of use or point of
diversion of water without complying with the notice and waiting
requirements under ORS 540.520;
(c) Notwithstanding the priority of water rights, grant
preference of use to rights for human consumption or stock
watering use;
(d) Waive the notice requirements under ORS 537.753 and the
report required under ORS 537.762;
(e) Allow a temporary exchange of water without giving notice
as required under ORS 540.535; and
(f) Utilize an expedited notice and waiting requirement
established by rule for the substitution of a supplemental ground
water right for a primary water right under drought conditions in
place of the notice and waiting requirement provided in ORS
540.524.
(2) The commission by rule may establish procedures for
carrying out the provisions of this section and a schedule of
fees that must accompany a request under subsection (1) of this
section.
SECTION 1328. ORS 536.770 is amended to read:
536.770. (1) The { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } or a local
government, public corporation or water right holder may purchase
an option or enter an agreement to use an existing permit or
water right during the time in which a severe, continuing drought
is declared to exist.
(2) A local government, public corporation or water right
holder proposing to purchase an option or enter an agreement
under this section shall submit to the commission an application
accompanied by the fee required under ORS 536.050 (1)(a).
(3) After approval of the application by the commission, the
option or agreement user:
(a) Is not required to construct any diversion or appropriation
facilities or works;
(b) May use the water acquired under the option or agreement on
property or for a use different than allowed in the permit or
water right transferred under the option or agreement, if the
water is used to replace water not available to the local
government, public corporation or water right holder because of
the drought; and
(c) May begin use at any time after approval by the commission
so long as the total use by the water right or permit holder and
the option or agreement user is within the rate, volume and
seasonal limits of the permit or water right.
SECTION 1329. ORS 536.780 is amended to read:
536.780. (1) The { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + }, upon a finding that
a severe or continuing drought is likely to occur, may order
individual state agencies and political subdivisions within any
drainage basin or subbasin to develop and file with the
commission, within 30 days following the order, a water
conservation or curtailment plan or both. The commission may
allow the state agencies and political subdivisions more than 30
days following the order to file the plan depending on the
urgency for the plan.
(2)(a) The water conservation plan shall specify efforts to be
made:
(A) To reduce usage of water resources for nonessential public
purposes;
(B) To undertake activities consistent with law designed to
promote conservation, prevention of waste, salvage and reuse of
water resources; and
(C) To establish programs consistent with law designed to
promote conservation, prevention of waste, salvage and reuse of
water resources.
(b) When a state agency or political subdivision files a water
conservation plan with the { - Water Resources - } commission,
the commission shall review the plan and approve it if the
commission finds that the plan satisfactorily promotes uniformity
in water conservation practices and the coordination of usage
regulation, taking into account local conditions.
(3)(a) The water curtailment plan, in order to provide water
necessary for human and livestock consumption during a severe and
continuing drought, shall specify efforts to be made:
(A) To curtail, adjust or allocate the supply of water
resources for domestic, municipal and industrial use; and
(B) To regulate the times and manner in which water resources
are consumed.
(b) When a state agency or political subdivision files a water
curtailment plan with the { - Water Resources - } commission,
the commission shall review the plan and approve it if the
commission finds that the plan satisfactorily promotes uniformity
in water curtailment practices and the coordination of usage
regulation, taking into account local conditions.
(4) If a state agency or political subdivision fails to file a
water conservation or curtailment plan when so ordered, or if the
commission does not approve a filed plan, the commission may
develop appropriate plans.
SECTION 1330. ORS 536.900 is amended to read:
536.900. (1) In addition to any other liability or penalty
provided by law, the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } may impose a civil
penalty on a person for any of the following:
(a) Violation of any of the terms or conditions of a permit,
certificate or license issued under ORS chapters 536 to 543A.
(b) Violation of ORS 537.130 or 537.535.
(c) Violation of ORS 537.545 (5) or (6) or of a rule described
in ORS 537.545 (8).
(d) Violation of any rule or order of the { - Water
Resources - } commission that pertains to well maintenance.
(e) Violation of ORS 540.045, 540.145, 540.210, 540.310,
540.320, 540.330, 540.340, 540.435, 540.440, 540.570 (5),
540.710, 540.720 and 540.730 or rules adopted under ORS 540.145.
(2) A civil penalty may be imposed under this section for each
day of violation of ORS 537.130, 537.535, 540.045, 540.310,
540.330, 540.570 (5), 540.710, 540.720 or 540.730.
(3) In the event the petitioner knowingly misrepresents the map
and petition required in ORS 541.329, the commission may assess a
penalty of up to $1,000 based upon guidelines to be established
by the commission. In addition, the petition and map shall be
amended to correct the error at the petitioner's cost. Affected
users shall be given notice as provided in ORS 541.329 (5).
(4) A civil penalty may not be imposed until the commission
prescribes a reasonable time to eliminate the violation. The
commission shall notify the violator of the time allowed to
correct a violation within five days after the commission first
becomes aware of the violation.
(5) Notwithstanding any term or condition of a permit,
certificate or license, the rotation of the use of water under
ORS 540.150 may not be considered a violation under subsection
(1) of this section.
SECTION 1331. ORS 536.910 is amended to read:
536.910. After public hearing, the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + } by
rule shall adopt a schedule establishing the civil penalty that
may be imposed under ORS 536.900 and the time allowed to correct
each violation. However, the civil penalty may not exceed $5,000
for each violation.
SECTION 1332. ORS 536.915 is amended to read:
536.915. A civil penalty imposed under ORS 536.900 may be
remitted or reduced upon such terms and conditions as the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + } considers proper and consistent with the
public health and safety and protection of the public interest in
the waters of this state.
SECTION 1333. ORS 536.920 is amended to read:
536.920. In imposing a penalty pursuant to the schedule adopted
pursuant to ORS 536.910, the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } shall consider the
following factors:
(1) The past history of the person incurring a penalty in
taking all feasible steps or procedures necessary or appropriate
to correct any violation.
(2) Any prior violations of statutes, rules or orders
pertaining to water use.
(3) The economic and financial conditions of the person
incurring the penalty, including any financial gains resulting
from the violation.
(4) The immediacy and extent to which the violation threatens
other rights to the use of water or the public health or safety
or the public interest in the waters of this state.
SECTION 1334. ORS 536.930 is amended to read:
536.930. Any owner or operator who fails without sufficient
cause to take corrective action as required by an order { - of
the Water Resources Commission - } { + issued by the Oregon
Natural Resources Commission in the administration of the water
laws of this state + } shall be liable for damages not to exceed
the amount of all expenses incurred by the { - Water Resources
Department - } { + Oregon Department of Natural Resources + }
in carrying out the department's enforcement duties related to
the corrective action.
SECTION 1335. ORS 536.935 is amended to read:
536.935. All penalties recovered under ORS 536.930 shall be
{ - paid into the State Treasury and credited to an account of
the Water Resources Department - } { + deposited in the Oregon
Natural Resources Fund + }. Such moneys are continuously
appropriated to the
{ - department - } { + Oregon Department of Natural
Resources + } to carry out the provisions of ORS chapters 536 to
543A.
SECTION 1336. ORS 537.040 is amended to read:
537.040. (1) In lieu of applying for a permit for a water right
under ORS 537.130, a public agency having jurisdiction over roads
or highways may register a water use for road and highway
maintenance, construction and reconstruction purposes.
(2) A public agency applying to register a water use under
subsection (1) of this section shall:
(a) Submit a completed application to register the water use;
(b) Pay a fee of $300 to be deposited in the { - Water
Resources Department Water Right Operating Fund - } { + Oregon
Natural Resources Fund + };
(c) Provide a map indicating the general locations of points of
diversion;
(d) Identify the sources of surface water or ground water to be
used;
(e) Specify the maximum amount of water to be used during a
calendar year and during any 24-hour period; and
(f) If the public agency is withdrawing water from a conveyance
or storage facility that is a perfected or certificated water
right:
(A) Identify the permit or certificate number of the conveyance
or storage right; and
(B) Provide written authorization from the owner of the
perfected or certificated water right that allows the public
agency to use water from the conveyance or storage facility.
(3) A use of water registered under subsection (1) of this
section shall continue until the public agency voluntarily
withdraws the registration. However, the public agency shall
submit an annual renewal statement accompanied by an annual fee
of $50 to be deposited in the { - Water Resources Department
Water Right Operating Fund - } { + Oregon Natural Resources
Fund + }. The annual renewal statement shall specify any change
in the map, the sources of water to be used or maximum amount of
water to be used.
(4) The use of water registered under subsection (1) of this
section:
(a) Shall not have priority over any water right exercised
under a permit, water right certificate, certificate of
registration, order of the { - Water Resources Commission or
the Water Resources Director - } { + Director of the Oregon
Department of Natural Resources or the Oregon Natural Resources
Commission + } and related court decrees;
(b) Shall be subordinate to all other future permitted or
certificated rights; and
(c) Shall not exceed 50,000 gallons from a single source during
any 24-hour period.
(5) The commission may require a public agency to cease
withdrawal or diversion of water at any time the director has
reason to believe the registered use is causing a significant
adverse impact upon:
(a) The affected watershed;
(b) Any other water user entitled to use water under a permit
issued under ORS 537.211 or 537.625 or a certificate issued under
ORS 537.250, 537.630 or 539.140; or
(c) An in-stream water right established under ORS 537.332 to
537.360.
(6) The commission may adopt rules to implement this section.
The commission shall not require the map to be prepared by a
water right examiner certified under ORS 537.798.
(7) As used in this section, 'public agency' means the State of
Oregon, any agency of the State of Oregon, a county, a special
road district of a county, a city, town, incorporated
municipality and any federal agency that has jurisdiction over a
roadway in this state.
SECTION 1337. ORS 537.090 is amended to read:
537.090. (1) The provisions of this chapter relating to
appropriation and water rights do not apply to the production of
fluid from a well with a bottom hole temperature of at least 250
degrees Fahrenheit.
(2) Production of fluids from a well with a bottom hole
temperature of at least 250 degrees Fahrenheit shall be regulated
as a geothermal resource under the applicable sections of ORS
chapter 522.
(3) If the bottom hole temperature of a well that was initially
less than 250 degrees Fahrenheit increases to at least 250
degrees Fahrenheit, the { - State Geologist and the Water
Resources Commission - } { + Oregon Natural Resources
Commission + }, after consulting with the well owner, shall
determine the agency with regulatory responsibility for that
specific well. This determination shall be documented in writing
and shall supersede a determination made under subsection (2) of
this section.
SECTION 1338. ORS 537.095 is amended to read:
537.095. If interference between an existing geothermal well
permitted under ORS chapter 522 and an existing water
appropriation permitted under this chapter is found by
{ - either the State Geologist or the Water Resources
Commission, the State Geologist and the Water Resources
Commission - } { + the Oregon Natural Resources Commission, the
commission + } shall work cooperatively to resolve the conflict
and develop a cooperative management program for the area. In
determining what action should be taken, they shall consider the
following goals:
(1) Achieving the most beneficial use of the water and heat
resources;
(2) Allowing all existing users of the resources to continue to
use those resources to the greatest extent possible; and
(3) Insuring that the public interest in efficient use of water
and heat resources is protected.
SECTION 1339. ORS 537.097 is amended to read:
537.097. (1) As the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } updates its water
right and permit records with current land ownership information
from county records or other sources, the commission shall
request the person shown in those updated records to verify that
the person owns the land to which a water right or permit is
appurtenant.
(2) Any person receiving a request under subsection (1) of this
section shall return the verification within 120 days.
(3) Except as provided in subsection (4) of this section, the
commission shall request verification from all persons shown in
updated water right and permit records on or before July 1, 1992.
(4) If the commission considers verification unnecessary for
any water right perfected, transferred or adjudicated after July
16, 1987, the commission need not request verification of that
water right or permit.
SECTION 1340. ORS 537.099 is amended to read:
537.099. (1) Except as provided in subsection (3) of this
section, any governmental entity that holds a water right shall
submit an annual water use report to the { - Water Resources
Department - } { + Oregon Department of Natural Resources + }.
The report shall include, but need not be limited to the amount
of water used by the governmental entity, the period of use and
the categories of beneficial use to which the water is applied.
(2) As used in this section, 'governmental entity' includes any
state or federal agency, local government as defined in ORS
294.004, irrigation district formed under ORS chapter 545 and a
water control district formed under ORS chapter 553.
(3) A governmental entity that acquires land because of default
in repayment of loans or other debts owed to the state is not
required to file an annual water use report under this section.
SECTION 1341. ORS 537.130 is amended to read:
537.130. (1) Except for a use exempted under ORS 537.040,
537.141, 537.142, 537.143 or 537.800 or under the registration
system set forth in ORS 537.132, any person intending to acquire
the right to the beneficial use of any of the surface waters of
this state shall, before beginning construction, enlargement or
extension of any ditch, canal or other distributing or
controlling works, or performing any work in connection with the
construction, or proposed appropriation, make an application to
the { - Water Resources Department - } { + Oregon Department
of Natural Resources + } for a permit to make the appropriation.
(2) Except for a use exempted under ORS 537.040, 537.141,
537.142, 537.143 or 537.800 or under the registration system set
forth in ORS 537.132, a person may not use, store or divert any
waters until after the department issues a permit to appropriate
the waters.
(3) The department may not issue a permit without notifying the
owner, as identified in the application, of any land to be
crossed by the proposed ditch, canal or other work as set forth
in the application filed pursuant to ORS 537.140. The department
shall provide the notice even if the applicant has obtained
written authorization or an easement from the owner.
(4) If more than 25 persons are identified in the application
as required under subsection (3) of this section, the department
may provide the notice required under subsection (3) of this
section by publishing notice of the application in a newspaper
having general circulation in the area in which the proposed
ditch, canal or other work is located at least once each week for
at least three successive weeks. The cost of the publication
shall be paid by the applicant in advance to the department.
SECTION 1342. ORS 537.132 is amended to read:
537.132. (1) The provisions of ORS 537.130 requiring
application for a permit to appropriate water shall not apply to
the use of reclaimed water, if:
(a) The use of reclaimed water is authorized by the national
pollutant discharge elimination system or water pollution control
facilities permit issued pursuant to ORS 468B.050 or 468B.053;
(b) The Department of Environmental Quality, in reviewing an
application for a permit pursuant to ORS 468B.050 or 468B.053,
has
{ - consulted with the State Department of Fish and Wildlife on
the impact to fish and wildlife to determine - }
{ + determined, after consulting with the Oregon Department of
Natural Resources, + } that the application of reclaimed water
under ORS 537.130, 537.131, 537.132, 540.510 and 540.610 shall
not have a significant negative impact on fish and wildlife; and
(c) The Department of Environmental Quality has determined the
use of reclaimed water is intended to improve the water quality
of the receiving stream.
(2) Any person using or intending to use reclaimed water shall
file with the { - Water Resources Department - } { + Oregon
Department of Natural Resources + } a reclaimed water
registration form setting forth the following:
(a) Name and mailing address of the registrant;
(b) The date the use of reclaimed water is initiated;
(c) Source of reclaimed water supply, including a description
of the location of the reclaimed water treatment facility and the
name and mailing address of the owner and operator of the
facility;
(d) Nature of the use of the reclaimed water;
(e) Amount of reclaimed water used or proposed to be used;
(f) Location and description of the ditch, canal, pipeline or
any other conduction facility used or to be used to transport the
reclaimed water from the treatment facility to the place of use;
(g) A statement declaring the existence of a written contract
or agreement to provide reclaimed water including the name and
address of the reclaimed water provider and the date and terms of
such contract or agreement;
(h) A description of the season of use and the place of use of
the reclaimed water, and any restrictions applicable to the use
of the reclaimed water; and
(i) If the reclaimed water is used in lieu of using water under
an existing water right, the application, permit and certificate
number of such right, or if the right is granted pursuant to a
decree of circuit court, the volume and page number setting forth
the right.
(3) If a municipality has discharged waste water into a natural
watercourse for five or more years, and the discharge represents
more than 50 percent of the total average flow of the natural
watercourse and if such discharge would cease as a result of the
use of reclaimed water in accordance with the provisions of ORS
540.510 (3) and this section, the Director { - of the
department - } { + of the Oregon Department of Natural
Resources + } shall notify any persons who, according to the
department records, have a water right that may be affected by
the cessation of the discharge by the municipality.
(4) If a person holding an affected water right demonstrates to
the department that the cessation of discharge by the
municipality substantially impairs the ability to satisfy a water
right, the person shall be entitled to a preference to the use of
the reclaimed water. However, the delivery of the reclaimed water
to the person claiming such preference shall be accomplished
through a conveyance facility or channel other than a natural
watercourse.
(5) If a municipality has a less expensive alternative for the
disposal and distribution of the reclaimed water, the
municipality shall not be obligated to incur expenses or cost
beyond the expenses or costs of such alternative.
(6) The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } shall adopt rules to implement
the notice and preference provisions and impairment evaluation
standards of this section.
SECTION 1343. ORS 537.135 is amended to read:
537.135. (1) The appropriation of water for the purpose of
recharging ground water basins or reservoirs is declared to be
for a beneficial purpose. Permits for such appropriation may be
granted by the { - Water Resources Department - } { + Oregon
Department of Natural Resources + } on application made therefor.
Any such application shall substantially comply with ORS 537.140
and shall be subject to the provisions of ORS 537.150 to 537.230,
as are other applications and permits to appropriate water.
(2) Any person proposing to apply to a beneficial use the water
stored artificially in any such ground water basin or reservoir
shall file an application for permit, to be known as the
secondary permit, in compliance with the provisions of ORS
537.130, 537.140, 537.142 and 537.145 to 537.230. The application
shall refer to the artificially recharged ground water basin or
reservoir as a supply of water and shall include the written
consent of the holder of the recharge permit or certificate to
appropriate the artificially recharged water.
(3) The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } shall develop standards that an
applicant must meet before the department approves a permit to
appropriate water for the purpose of recharging ground water.
(4) Before issuing a permit for the purpose of recharging
ground water, the department shall determine, under ORS 537.170,
whether the proposed ground water recharge project would impair
or be detrimental to the public interest.
(5) The department shall not issue a ground water recharge
permit unless the supplying stream has a minimum perennial
streamflow established for the protection of aquatic and fish
life. The { - State Department of Fish and Wildlife - }
{ + department + } may waive this prerequisite if a minimum
perennial streamflow for protection of aquatic and fish life is
not required for the supplying stream.
SECTION 1344. ORS 537.139 is amended to read:
537.139. (1) The failure of an applicant to obtain written
authorization, obtain an easement or acquire ownership of land if
required as a condition to issuance of a permit under ORS 537.211
(2) shall be a ground for refusal to issue a permit.
(2) If an applicant makes a statement under ORS 537.140
(1)(a)(E) that falsely states that the applicant owns all lands
crossed by a proposed ditch, canal or other work or that the
applicant has obtained written authorization or an easement
permitting access across such lands, any permit issued in
response to the application shall be subject to cancellation.
(3) Nothing in ORS 537.130, 537.133, 537.139, 537.140, 537.250,
772.305 and 772.310 requires the { - Water Resources
Department - } { + Oregon Department of Natural Resources + }
to mediate or arbitrate a dispute between a permittee and a
landowner with respect to the provisions of ORS 537.130, 537.133,
537.139, 537.140, 537.250, 772.305 and 772.310.
SECTION 1345. ORS 537.140 is amended to read:
537.140. (1)(a) Each application for a permit to appropriate
water shall be made to the { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } on a form
prescribed by the department and shall set forth:
(A) The name and mailing address of the applicant;
(B) The source of water supply including the name and mailing
address of any owner of the land upon which the source of the
water supply is located;
(C) The nature and amount of the proposed use;
(D) The location and description of the proposed ditch, canal
or other work, including the name and mailing address of the
owner of any lands that are not owned by the applicant and that
are crossed by the proposed ditch, canal or other work even if
the applicant has obtained written authorization or an easement
from the owner;
(E) A statement declaring whether the applicant has written
authorization or an easement permitting access to nonowned land
crossed by the proposed ditch, canal or other work;
(F) The time within which it is proposed to begin construction;
(G) The time required for completion of the construction;
(H) The time for the complete application of the water to the
proposed use; and
(I) Any other information required in the application form that
is necessary to evaluate the application as established by
statute and rule.
(b) If for agricultural purposes, the application shall give
the legal subdivisions of the land and the acreage to be
irrigated, as near as may be.
(c) Except as provided in subsection (2) of this section, if
for power purposes, the application shall give the nature of the
works by means of which the power is to be developed, the head
and amount of water to be utilized, and the uses to which the
power is to be applied.
(d) If for construction of a reservoir, the application shall
give the height of dam, the capacity of the reservoir, and the
uses to be made of the impounded waters.
(e) If for municipal water supply, the application shall give
the present population to be served, and, as near as may be, the
future requirements of the city.
(f) If for mining purposes, the application shall give the
nature of the mines to be served, and the methods of supplying
and utilizing the water.
(2) Any person who has applied to the Federal Energy Regulatory
Commission for a preliminary permit or an exemption from
licensing shall, at the same time, apply to the { - Water
Resources Department - } { + Oregon Department of Natural
Resources + } for a permit to appropriate water for a
hydroelectric project. An applicant for a permit to appropriate
water for a new hydroelectric project shall submit to the
department a complete copy of any application for the project
filed with the Federal Energy Regulatory Commission or other
federal agency. If the copy of the federal application is filed
with the department at the same time it is filed with the federal
agency, at the department's discretion such copy may fulfill the
requirements for an application under subsection (1) of this
section.
(3) Each application shall be accompanied by any map or drawing
and all other data concerning the proposed project and the
applicant's ability and intention to construct the project, as
may be prescribed by the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + }. The accompanying
data shall be considered a part of the application.
(4) The map or drawing required to accompany the application
shall be of sufficient quality and scale to establish the
location of the proposed point of diversion and the proposed
place of use identified by tax lot, township, range, section and
nearest quarter-quarter section along with a notation of the
acreage of the proposed place of use, if appropriate. In
addition, the department shall accept locational coordinate
information, including latitude and longitude as established by a
global positioning system. If the application is for a water
right for a municipal use, the map need not identify the proposed
place of use by tax lot.
(5) Each application for a permit to appropriate water shall be
accompanied by the examination fee set forth in ORS 536.050 (1).
(6) If the proposed use of the water is for operation of a
chemical process mine as defined in ORS 517.953, the applicant
shall provide the information required under this section as part
of the consolidated application under ORS 517.952 to 517.989.
(7) Notwithstanding any provision of ORS chapter 183, an
application for a permit to appropriate water shall be processed
in the manner set forth in ORS 537.120 to 537.360. Nothing in ORS
chapter 183 shall be construed to allow additional persons to
participate in the process. To the extent that any provision in
ORS chapter 183 conflicts with a provision set forth in ORS
537.120 to 537.360, the provisions in ORS 537.120 to 537.360
shall control.
SECTION 1346. ORS 537.141 is amended to read:
537.141. (1) The following water uses do not require an
application under ORS 537.130 or 537.615, a water right permit
under ORS 537.211 or a water right certificate under ORS 537.250:
(a) Emergency fire-fighting uses;
(b) Nonemergency fire-fighting training, provided:
(A) The source of the water is existing storage and the use
occurs with permission of the owner of the stored water; or
(B) If the source of water is other than existing storage, the
use occurs with the prior written approval of the watermaster in
the district where the training will take place and subject to
any conditions the watermaster determines are necessary to
prevent injury to existing water rights and to protect in-stream
resources;
(c) Water uses that divert water to water tanks or troughs from
a reservoir for a use allowed under an existing water right
permit or certificate for the reservoir;
(d) Fish screens, fishways and fish by-pass structures, as
exempted by rule of the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + };
(e) Land management practices intended to save soil and improve
water quality by temporarily impeding or changing the natural
flow of diffuse surface water across agricultural lands when
storage of public waters is not an intended purpose. Such
practices include but are not limited to:
(A) Terraces;
(B) Dikes;
(C) Retention dams and other temporary impoundments; and
(D) Agronomic practices designed to improve water quality and
control surface runoff to prevent erosion, such as ripping,
pitting, rough tillage and cross slope farming;
(f) Livestock watering operations that comply with the
requirements under subsections (2) and (3) of this section;
(g) Forest management activities that require the use of water
in conjunction with mixing pesticides as defined in ORS 634.006,
or in slash burning;
(h) The collection of precipitation water from an artificial
impervious surface and the use of such water;
(i) Land application of ground water so long as the ground
water:
(A) Has first been appropriated and used under a permit or
certificate issued under ORS 537.625 or 537.630 for a water right
issued for industrial purposes or a water right authorizing use
of water for confined animal feeding purposes;
(B) Is reused for irrigation purposes and the period of
irrigation is a period during which the reused water has never
been discharged to the waters of the state; and
(C) Is applied pursuant to a permit issued by the Department of
Environmental Quality or the State Department of Agriculture
under either ORS 468B.050 to construct and operate a disposal
system or ORS 468B.215 to operate a confined animal feeding
operation; and
(j) Surface mining practices that result in the removal of
water from a surface mine subject to an operating permit or
reclamation plan approved by the { - State Department of
Geology and Mineral Industries - } { + Oregon Department of
Natural Resources + }, unless the water is used for a subsequent
beneficial use.
(2) The use of surface water for livestock watering may be
exempted under subsection (1) of this section if:
(a) The water is diverted from a stream or other surface water
source to a trough or tank through an enclosed water delivery
system;
(b) The delivery system either is equipped with an automatic
shutoff or flow control mechanism or includes a means for
returning water to the surface water source through an enclosed
delivery system; and
(c) The operation is located on land from which the livestock
would otherwise have legal access to both the use and source of
the surface water source.
(3) If the diversion system described in subsection (2) of this
section is located within or above a scenic waterway, the amount
of water that may be used without a water right is limited to
one-tenth of one cubic foot per second per 1,000 head of
livestock. Nothing in this section shall prevent the { - Water
Resources Commission - } { + Oregon Natural Resources
Commission + } from approving an application for a water right
permit for a delivery system not qualifying under subsection (2)
of this section.
(4) The { - Water Resources Department - } { + Oregon
Department of Natural Resources + }, in conjunction with local
soil and water conservation districts, the Oregon State
University Extension Service { - , the State Department of
Agriculture and the State Department of Fish and Wildlife - }
{ + and the State Department of Agriculture + } and any other
organization interested in participating, shall develop and
implement a voluntary educational program on livestock management
techniques designed to keep livestock away from streams and
riparian areas.
(5) To qualify for an exempt use under subsection (1)(g) of
this section, the user shall:
(a) Submit notice of the proposed use, including the
identification of the proposed water source, to the { - Water
Resources Department and to the State Department of Fish and
Wildlife - } { + Oregon Department of Natural Resources + } at
the time notice is provided to other affected agencies pursuant
to ORS 527.670; and
(b) Comply with any restrictions imposed by the department
pertaining to sources of water that may not be used in
conjunction with the proposed activity.
(6) Except for the use of water under subsection (1)(i) of this
section, the { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } by rule may require any person
or public agency diverting water as described in subsection (1)
of this section to furnish information with regard to such water
and the use thereof. For a use of water described in subsection
(1)(i) of this section, the Department of Environmental Quality
or the State Department of Agriculture shall provide to the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + } a copy of the permit issued under ORS
468B.050 or 468B.215 authorizing the land application of ground
water for reuse. The permit shall provide the information
regarding the place of use of such water and the nature of the
beneficial reuse.
SECTION 1347. ORS 537.142 is amended to read:
537.142. (1) No water right certificate or permit is required
for the use of the surface waters of this state if the water is
to be used for a salmon and trout enhancement project certified
by the { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + } under ORS 496.430
to 496.460.
(2) The use of water for a salmon and trout enhancement project
under subsection (1) of this section is a beneficial use and such
use shall be allowed on all the waters of this state, whether or
not the project is located on waters of this state for which the
use is restricted pursuant to any of the following:
(a) A scenic waterway designation under ORS 390.805 to 390.925.
(b) A statutory withdrawal from appropriation under ORS chapter
538.
(c) A program adopted by the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + } under
ORS 536.300 to 536.400.
(d) An administrative withdrawal from appropriation by the
{ - Water Resources Director or the Water Resources
Commission - } { + Director of the Oregon Department of Natural
Resources or the commission + }.
(e) Any other statutory or administrative restriction on the
use of the waters.
(3) If the use of the waters of this state under subsection (1)
of this section conflicts with the use of water under a permit
issued under ORS 537.240 or a use allowed under a water right
certificate issued under ORS 537.250, the use permitted under
subsection (1) of this section shall be subordinate.
SECTION 1348. ORS 537.143 is amended to read:
537.143. (1) Notwithstanding the provisions of ORS 537.130, the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + } may establish by rule a procedure to
allow a person to obtain a limited license to use or store ground
water not otherwise exempt under ORS 537.545, to use or store
surface water, to use stored water or to use stored water for
purposes for which the stored water is authorized and in
accordance with a contract with a local, state or federal
government after the person complies with the notice provisions
set forth in ORS 537.144. Uses eligible for a limited license
shall be for a short-term or fixed duration and may include but
are not limited to road construction and maintenance, general
construction and forestland or rangeland management. Except as
provided in subsections (4) to (6) and (9) of this section, the
use of water for a purpose specifically prohibited by a basin
program or for irrigation is not eligible for a limited license.
(2) The use of water under a limited license under subsection
(1) of this section shall not have priority over any water right
exercised according to a permit or certificate and shall be
subordinate to all other authorized uses that rely upon the same
source. The { - Water Resources Department - } { + Oregon
Department of Natural Resources + } may revoke the right to use
of water acquired under a limited license pursuant to subsection
(1) of this section at any time if the use causes injury to:
(a) Any other water right; or
(b) A minimum perennial streamflow.
(3) Except as provided in subsections (4), (5) and (11) of this
section, the licensee shall give notice to the { - Water
Resources - } department at least 15 days in advance of using
the water under the limited license and shall maintain a record
of use. The record shall include but need not be limited to an
estimate of the amount of water used, the period of use and the
categories of beneficial use to which the water is applied.
During the period of the limited license, the record of use shall
be available for review by the department upon request.
(4) The { - Water Resources Director - } { + Director of
the Oregon Department of Natural Resources + } may issue a
limited license in conjunction with an enforcement order to
address an illegal water use, including irrigation use or a use
specifically prohibited by a basin program. The director may
issue a limited license for such a use upon a finding that:
(a) The person did not knowingly violate state laws regarding a
water use permit;
(b) The immediate termination of the illegal use would cause
serious and undue hardship to the water user that could be
ameliorated by providing a period of time in which to achieve
compliance with the law; and
(c) The continued use under a limited license outweighs the
public benefits of termination, including deterrence of illegal
uses and protection of the water source.
(5) An enforcement order issued under subsection (4) of this
section shall specify an amount of time in which the person using
water illegally shall bring such use into compliance. The
duration of the limited license shall not exceed the duration of
time allowed in the enforcement order to achieve compliance. A
licensee using water under a limited license issued in
conjunction with an enforcement order need not provide the
department with advance notice of water use, but shall comply
with the other requirements of this section.
(6) The director may issue a limited license for irrigation if
the sole purpose of the use is:
(a) To provide water necessary to establish a crop for which no
further irrigation will be required after the crop is
established;
(b) To mitigate the impacts of drought when additional water is
needed beyond a prescribed irrigation season in order to avoid
irreparable damage to the user's crop; or
(c) Under a limited license issued pursuant to subsection (9)
of this section.
(7) Nothing in this section is intended to prohibit any person
from obtaining a water right certificate under ORS 537.250 or
537.630 for any use for which a limited license is obtained under
this section.
(8) Except as provided in subsection (10) of this section, the
department may not issue a limited license for the same use for
more than five consecutive years.
(9) Notwithstanding any other provision of this section, if the
use of water under the limited license is for the use of stored
water consistent with the purposes for which the stored water is
authorized and the use of water is authorized by a contract
between the user and a local, state or federal government:
(a) The limited license may be issued for a period of up to one
year; and
(b) The limited license shall be revoked if the contract
between the user and the local, state or federal government is
terminated for any reason.
(10) At the end of the one-year limited license period in
subsection (9) of this section, the user may reapply for a
limited license under ORS 537.144 provided that there is an
authorized contract between the user and a local, state or
federal government.
(11) The director may issue a limited license authorizing
immediate use of water if the director finds that an emergency
exists and the water is needed to protect the public health,
safety and welfare. Notwithstanding subsection (8) of this
section, the director may issue a limited license for such a use
for a period of 60 days.
SECTION 1349. ORS 537.144 is amended to read:
537.144. (1) Any person requesting the right to use water under
a limited license under ORS 537.143 shall notify the { - Water
Resources Department - } { + Oregon Department of Natural
Resources + } on a form provided by the department.
(2) If the request submitted under subsection (1) of this
section is to use stored water for purposes for which the stored
water is authorized and pursuant to a contract between the user
and a local, state or federal government:
(a) The person also shall submit:
(A) A copy of the contract;
(B) A map indicating the point of diversion and the place of
use; and
(C) Any other information required by the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + } that
is necessary to evaluate the request as established by statute
and the rules of the commission.
(b) Upon the filing of the request under this subsection, the
department shall determine whether the request contains the
information listed under paragraph (a) of this subsection and is
complete and not defective, including the payment of any fee
required by the commission. If the department determines that the
request is incomplete or defective or that all fees have not been
paid, the department shall return all fees and the request. If
the department determines that a request contains the information
listed under paragraph (a) of this subsection and is complete and
not defective, the department shall proceed with the review of
the request and issuance of the limited license if the use
complies with the requirements of ORS 537.143.
(3) The notification required under subsection (1) or (2) of
this section shall be accompanied by the fee established by rule
by the { - Water Resources - } commission.
(4) The department shall notify the person whether the
department grants the limited license.
(5) A request for the right to use stored water under a limited
license as described in subsection (2) of this section may be
made concurrently with an application for a permit to appropriate
water under ORS 537.140.
SECTION 1350. ORS 537.145 is amended to read:
537.145. (1) Whenever an application is made for a permit to
appropriate water for hydroelectric purposes, the { - Water
Resources Department - } { + Oregon Department of Natural
Resources + } shall give written notice of the filing of the
application to the owner of any land that is:
(a) Adjacent to any portion of the stream in which the quantity
of water will be decreased by the project; or
(b) Adjacent to the site of the proposed hydroelectric project.
(2) The department shall also publish notice of the application
once each week for at least four successive weeks and for such
further time, if any, as the department shall determine, in a
newspaper of general circulation in each county in which the
project covered by the application is located.
SECTION 1351. ORS 537.147 is amended to read:
537.147. (1) Notwithstanding the process for applying for a
water right permit established in ORS 537.150 to 537.230, a
person may, pursuant to this section, apply to the { - Water
Resources Department - } { + Oregon Department of Natural
Resources + } for a water right permit to use stored water. A
person applying under this section for a water right permit to
use stored water shall submit:
(a) A fee, in the amount required by ORS 536.050 for
applications to appropriate stored water.
(b) A completed application for a secondary permit, in a form
determined by the department, that contains the information
required of applications under ORS 537.140 and 537.400 (1).
(c) Evidence that the proposed use of the stored water is one
of the authorized uses under the water right permit, certificate
or decree that allows the storage of water.
(2) If an applicant provides, to the satisfaction of the
department, the fee and the information required by subsection
(1) of this section, the department may, after public notice and
a 30-day opportunity to submit comments on the application, issue
a water right permit upon determining that no public interest
issues as identified in ORS 537.170 (8) have been raised through
the comments submitted.
(3) If the department determines that public interest issues
have been identified, then the department shall treat the
application under this section as an application under ORS
537.150 and perform the public interest review required by ORS
537.153 (2).
(4) At a minimum, a water right permit issued by the department
for use of stored water under this section shall be conditioned
to require:
(a) Fish screens and by-pass devices and fish passage as may be
required by the { - State Department of Fish and Wildlife - }
{ + department + }; and
(b) A measuring device at each point of diversion authorized
under the water right permit.
(5) Within 10 days of issuing a water right permit under this
section, the department shall provide notice of the permit
issuance in the weekly notice published by the department and to
persons who have submitted comments pursuant to subsection (2) of
this section.
SECTION 1352. ORS 537.150 is amended to read:
537.150. (1) Within 15 days after receiving an application, the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + } shall determine whether the application
contains the information listed under ORS 537.140 (1) and is
complete and not defective, including the payment of all fees
required under ORS 537.140 (5). If the department determines that
the application is incomplete or defective or that not all fees
have been paid, the department shall return the fees paid and the
application.
(2) Upon determining that an application contains the
information listed under ORS 537.140 (1) and is complete and not
defective, the department shall indorse on the application the
date upon which the application was received at the department,
which shall be the priority date for any water right issued in
response to the application. All applications that comply with
the provisions of law shall be recorded in a suitable book kept
for that purpose.
(3) If an application is complete and not defective, the
department shall determine whether the proposed use is prohibited
by ORS chapter 538. If the proposed use is prohibited by ORS
chapter 538, the department shall reject the application and
return all fees to the applicant with an explanation of the
statutory prohibition.
(4) If the proposed use is not prohibited by ORS chapter 538,
the department shall undertake an initial review of the
application and make a preliminary determination of:
(a) Whether the proposed use is restricted or limited by
statute or rule;
(b) The extent to which water is available from the proposed
source during the times and in the amounts requested; and
(c) Any other issue the department identifies as a result of
the initial review that may preclude approval of or restrict the
proposed use.
(5) Upon completion of the initial review and no later than 30
days after determining an application to be complete and not
defective as described in subsection (1) of this section, the
department shall notify the applicant of its preliminary
determinations and allow the applicant 14 days from the date of
mailing within which to notify the department to stop processing
the application or to proceed with the application. If the
applicant notifies the department to stop processing the
application, the department shall return the application and all
fees paid in excess of $200. If the department receives no timely
response from the applicant, the department shall proceed with
the application.
(6) Within seven days after proceeding with the application
under subsection (5) of this section, the department shall give
public notice of the application in the weekly notice published
by the department. The notice shall include a request for
comments on the application and information pertaining to how an
interested person may obtain future notices about the application
and a copy of the proposed final order.
(7) Within 30 days after the public notice under subsection (6)
of this section, any person interested in the application shall
submit written comments to the department. Any person who asks to
receive a copy of the department's proposed final order shall
submit to the department the fee required under ORS 536.050 (1).
SECTION 1353. ORS 537.150, as amended by section 13, chapter
819, Oregon Laws 2009, is amended to read:
537.150. (1) Within 15 days after receiving an application, the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + } shall determine whether the application
contains the information listed under ORS 537.140 (1) and is
complete and not defective, including the payment of all fees
required under ORS 537.140 (5). If the department determines that
the application is incomplete or defective or that not all fees
have been paid, the department shall return the fees paid and the
application.
(2) Upon determining that an application contains the
information listed under ORS 537.140 (1) and is complete and not
defective, the department shall indorse on the application the
date upon which the application was received at the department,
which shall be the priority date for any water right issued in
response to the application. All applications that comply with
the provisions of law shall be recorded in a suitable book kept
for that purpose.
(3) If an application is complete and not defective, the
department shall determine whether the proposed use is prohibited
by ORS chapter 538. If the proposed use is prohibited by ORS
chapter 538, the department shall reject the application and
return all fees to the applicant with an explanation of the
statutory prohibition.
(4) If the proposed use is not prohibited by ORS chapter 538,
the department shall undertake an initial review of the
application and make a preliminary determination of:
(a) Whether the proposed use is restricted or limited by
statute or rule;
(b) The extent to which water is available from the proposed
source during the times and in the amounts requested; and
(c) Any other issue the department identifies as a result of
the initial review that may preclude approval of or restrict the
proposed use.
(5) Upon completion of the initial review and no later than 30
days after determining an application to be complete and not
defective as described in subsection (1) of this section, the
department shall notify the applicant of its preliminary
determinations and allow the applicant 14 days from the date of
mailing within which to notify the department to stop processing
the application or to proceed with the application. If the
applicant notifies the department to stop processing the
application, the department shall return the application and all
fees paid in excess of $150. If the department receives no timely
response from the applicant, the department shall proceed with
the application.
(6) Within seven days after proceeding with the application
under subsection (5) of this section, the department shall give
public notice of the application in the weekly notice published
by the department. The notice shall include a request for
comments on the application and information pertaining to how an
interested person may obtain future notices about the application
and a copy of the proposed final order.
(7) Within 30 days after the public notice under subsection (6)
of this section, any person interested in the application shall
submit written comments to the department. Any person who asks to
receive a copy of the department's proposed final order shall
submit to the department the fee required under ORS 536.050 (1).
SECTION 1354. ORS 537.153 is amended to read:
537.153. (1) Within 60 days after the { - Water Resources
Department - } { + Oregon Department of Natural Resources + }
proceeds with the application under ORS 537.150 (5), the
department shall complete application review and issue a proposed
final order approving or denying the application or approving the
application with modifications or conditions. The department may
request the applicant to provide additional information needed to
complete the review. If the department requests additional
information, the request shall be specific and shall be sent to
the applicant by registered mail. The department shall specify a
date by which the information must be returned, which shall be
not less than 10 days after the department mails the request to
the applicant. If the department does not receive the information
or a request for a time extension under ORS 537.175 by the date
specified in the request, the department may reject the
application and may refund fees in accordance with ORS 536.050
(4)(a). The time period specified by the department in a request
for additional information shall allow the department to comply
with the 60-day time limit established by this subsection.
(2) In reviewing the application under subsection (1) of this
section, the department shall presume that a proposed use will
not impair or be detrimental to the public interest if the
proposed use is allowed in the applicable basin program
established pursuant to ORS 536.300 and 536.340 or given a
preference under ORS 536.310 (12), if water is available, if the
proposed use will not injure other water rights and if the
proposed use complies with rules of the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + }.
This shall be a rebuttable presumption and may be overcome by a
preponderance of evidence that either:
(a) One or more of the criteria for establishing the
presumption are not satisfied; or
(b) The proposed use will impair or be detrimental to the
public interest as demonstrated in comments, in a protest under
subsection (6) of this section or in a finding of the department
that shows:
(A) The specific public interest under ORS 537.170 (8) that
would be impaired or detrimentally affected; and
(B) Specifically how the identified public interest would be
impaired or detrimentally affected.
(3) The proposed final order shall cite findings of fact and
conclusions of law and shall include but need not be limited to:
(a) Confirmation or modification of the preliminary
determinations made in the initial review;
(b) A brief statement that explains the criteria considered
relevant to the decision, including the applicable basin program
and the compatibility of the proposed use with applicable land
use plans;
(c) An assessment of water availability and the amount of water
necessary for the proposed use;
(d) An assessment of whether the proposed use would result in
injury to existing water rights;
(e) An assessment of whether the proposed use would impair or
be detrimental to the public interest as provided in ORS 537.170;
(f) A draft permit, including any proposed conditions, or a
recommendation to deny the application;
(g) Whether the rebuttable presumption that the proposed use
will not impair or be detrimental to the public interest has been
established; and
(h) The date by which protests to the proposed final order must
be received by the department.
(4) The department shall mail copies of the proposed final
order to the applicant and to persons who have requested copies
and paid the fee required under ORS 536.050 (1)(p). The
department also shall publish notice of the proposed final order
by publication in the weekly notice published by the department.
(5) Any person who supports a proposed final order may request
standing for purposes of participating in any contested case
proceeding on the proposed final order or for judicial review of
a final order. A request for standing shall be in writing and
shall be accompanied by the fee established under ORS 536.050
(1)(n).
(6) Any person may submit a protest against a proposed final
order. A protest shall be in writing and shall include:
(a) The name, address and telephone number of the protestant;
(b) A description of the protestant's interest in the proposed
final order and, if the protestant claims to represent the public
interest, a precise statement of the public interest represented;
(c) A detailed description of how the action proposed in the
proposed final order would impair or be detrimental to the
protestant's interest;
(d) A detailed description of how the proposed final order is
in error or deficient and how to correct the alleged error or
deficiency;
(e) Any citation of legal authority supporting the protest, if
known; and
(f) The protest fee required under ORS 536.050.
(7) Requests for standing and protests on the proposed final
order shall be submitted within 45 days after publication of the
notice of the proposed final order in the weekly notice published
by the department. Any person who asks to receive a copy of the
department's final order shall submit to the department the fee
required under ORS 536.050 (1)(p), unless the person has
previously requested copies and paid the required fee under ORS
537.150 (7), the person is a protestant and has paid the fee
required under ORS 536.050 (1)(j) or the person has standing and
has paid the fee under ORS 536.050 (1)(n).
(8) Within 60 days after the close of the period for receiving
protests, the { - Water Resources Director - } { + Director
of the Oregon Department of Natural Resources + } shall:
(a) Issue a final order as provided under ORS 537.170 (6); or
(b) Schedule a contested case hearing if a protest has been
submitted and if:
(A) Upon review of the issues, the director finds that there
are significant disputes related to the proposed use of water; or
(B) Within 30 days after the close of the period for submitting
protests, the applicant requests a contested case hearing.
SECTION 1355. ORS 537.153, as amended by section 14, chapter
819, Oregon Laws 2009, is amended to read:
537.153. (1) Within 60 days after the { - Water Resources
Department - } { + Oregon Department of Natural Resources + }
proceeds with the application under ORS 537.150 (5), the
department shall complete application review and issue a proposed
final order approving or denying the application or approving the
application with modifications or conditions. The department may
request the applicant to provide additional information needed to
complete the review. If the department requests additional
information, the request shall be specific and shall be sent to
the applicant by registered mail. The department shall specify a
date by which the information must be returned, which shall be
not less than 10 days after the department mails the request to
the applicant. If the department does not receive the information
or a request for a time extension under ORS 537.175 by the date
specified in the request, the department may reject the
application and may refund fees in accordance with ORS 536.050
(3)(a). The time period specified by the department in a request
for additional information shall allow the department to comply
with the 60-day time limit established by this subsection.
(2) In reviewing the application under subsection (1) of this
section, the department shall presume that a proposed use will
not impair or be detrimental to the public interest if the
proposed use is allowed in the applicable basin program
established pursuant to ORS 536.300 and 536.340 or given a
preference under ORS 536.310 (12), if water is available, if the
proposed use will not injure other water rights and if the
proposed use complies with rules of the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + }.
This shall be a rebuttable presumption and may be overcome by a
preponderance of evidence that either:
(a) One or more of the criteria for establishing the
presumption are not satisfied; or
(b) The proposed use will impair or be detrimental to the
public interest as demonstrated in comments, in a protest under
subsection (6) of this section or in a finding of the department
that shows:
(A) The specific public interest under ORS 537.170 (8) that
would be impaired or detrimentally affected; and
(B) Specifically how the identified public interest would be
impaired or detrimentally affected.
(3) The proposed final order shall cite findings of fact and
conclusions of law and shall include but need not be limited to:
(a) Confirmation or modification of the preliminary
determinations made in the initial review;
(b) A brief statement that explains the criteria considered
relevant to the decision, including the applicable basin program
and the compatibility of the proposed use with applicable land
use plans;
(c) An assessment of water availability and the amount of water
necessary for the proposed use;
(d) An assessment of whether the proposed use would result in
injury to existing water rights;
(e) An assessment of whether the proposed use would impair or
be detrimental to the public interest as provided in ORS 537.170;
(f) A draft permit, including any proposed conditions, or a
recommendation to deny the application;
(g) Whether the rebuttable presumption that the proposed use
will not impair or be detrimental to the public interest has been
established; and
(h) The date by which protests to the proposed final order must
be received by the department.
(4) The department shall mail copies of the proposed final
order to the applicant and to persons who have requested copies
and paid the fee required under ORS 536.050 (1)(p). The
department also shall publish notice of the proposed final order
by publication in the weekly notice published by the department.
(5) Any person who supports a proposed final order may request
standing for purposes of participating in any contested case
proceeding on the proposed final order or for judicial review of
a final order. A request for standing shall be in writing and
shall be accompanied by the fee established under ORS 536.050
(1)(n).
(6) Any person may submit a protest against a proposed final
order. A protest shall be in writing and shall include:
(a) The name, address and telephone number of the protestant;
(b) A description of the protestant's interest in the proposed
final order and, if the protestant claims to represent the public
interest, a precise statement of the public interest represented;
(c) A detailed description of how the action proposed in the
proposed final order would impair or be detrimental to the
protestant's interest;
(d) A detailed description of how the proposed final order is
in error or deficient and how to correct the alleged error or
deficiency;
(e) Any citation of legal authority supporting the protest, if
known; and
(f) For persons other than the applicant, the protest fee
required under ORS 536.050.
(7) Requests for standing and protests on the proposed final
order shall be submitted within 45 days after publication of the
notice of the proposed final order in the weekly notice published
by the department. Any person who asks to receive a copy of the
department's final order shall submit to the department the fee
required under ORS 536.050 (1)(p), unless the person has
previously requested copies and paid the required fee under ORS
537.150 (7), the person is a protestant and has paid the fee
required under ORS 536.050 (1)(j) or the person has standing and
has paid the fee under ORS 536.050 (1)(n).
(8) Within 60 days after the close of the period for receiving
protests, the { - Water Resources Director - } { + Director
of the Oregon Department of Natural Resources + } shall:
(a) Issue a final order as provided under ORS 537.170 (6); or
(b) Schedule a contested case hearing if a protest has been
submitted and if:
(A) Upon review of the issues, the director finds that there
are significant disputes related to the proposed use of water; or
(B) Within 30 days after the close of the period for submitting
protests, the applicant requests a contested case hearing.
SECTION 1356. ORS 537.160 is amended to read:
537.160. (1) Subject to the provisions of subsections (2) and
(3) of this section, and of ORS 537.170 and 537.190, the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + } shall approve all applications made in
proper form which contemplate the application of water to a
beneficial use, unless the proposed use conflicts with existing
rights.
(2) The department may not approve an application for a permit
to appropriate waste or seepage water, which is to be carried
through an existing ditch or canal not owned wholly by the
applicant until the applicant files with the department an
agreement between the applicant and the owner of the ditch or
canal, authorizing its use by the applicant to carry the water.
(3) The department shall reject every application for a permit
to appropriate water to develop hydroelectric power if the
department finds that the proposed project does not comply with
the standards set forth in ORS 543.017 or rules adopted by the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + } under ORS 543.017.
SECTION 1357. ORS 537.170 is amended to read:
537.170. (1) Within 45 days after the { - Water Resources
Director - } { + Director of the Oregon Department of Natural
Resources + } schedules a contested case hearing under ORS
537.153 (8), the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + } shall hold the contested case hearing. The
issues to be considered in the contested case hearing shall be
limited to issues identified by the administrative law judge.
(2) Notwithstanding the provisions of ORS chapter 183
pertaining to contested case proceedings, the parties to any
contested case hearing initiated under this section shall be
limited to:
(a) The applicant;
(b) Any person who timely filed a protest; and
(c) Any person who timely filed a request for standing under
ORS 537.153 (5) and who requests to intervene in the contested
case hearing prior to the start of the proceeding.
(3) The contested case proceeding shall be conducted in
accordance with the applicable provisions of ORS chapter 183
except:
(a) As provided in subsections (1) and (2) of this section; and
(b) An interlocutory appeal under ORS 183.480 (3) shall not be
allowed.
(4) If applicable, an application to appropriate water for the
generation of electricity submitted under ORS 537.140 shall be
included in the consolidated review and hearings process under
ORS 543.255.
(5) Each person submitting a protest or a request for standing
shall raise all reasonably ascertainable issues and submit all
reasonably available arguments supporting the person's position
by the close of the protest period. Failure to raise a reasonably
ascertainable issue in a protest or in a hearing or failure to
provide sufficient specificity to afford the { - Water
Resources - } department an opportunity to respond to the issue
precludes judicial review based on that issue.
(6) If, after the contested case hearing or, if a hearing is
not held, after the close of the period allowed to file a
protest, the director determines that the proposed use does not
comply with the standards set forth in ORS 543.017 or rules
adopted by the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + } under ORS 543.017 or would otherwise
impair or be detrimental to the public interest, the director
shall issue a final order rejecting the application or modifying
the proposed final order to conform to the public interest. If,
after the contested case hearing or, if a hearing is not held,
after the close of the period allowed to file a protest, the
director determines that the proposed use would not impair or be
detrimental to the public interest, the director shall issue a
final order approving the application or otherwise modifying the
proposed final order. A final order may set forth any of the
provisions or restrictions to be included in the permit
concerning the use, control and management of the water to be
appropriated for the project, including, but not limited to, a
specification of reservoir operation and minimum releases to
protect the public interest.
(7) If a contested case hearing is not held:
(a) Where the final order modifies the proposed final order,
the applicant may request and the department shall schedule a
contested case hearing as provided under subsection (3) of this
section by submitting the information required for a protest
under ORS 537.153 (6) within 14 days after the director issues
the final order. However, the issues on which a contested case
hearing may be requested and conducted under this paragraph shall
be limited to issues based on the modifications to the proposed
final order.
(b) Only the applicant or a protestant may appeal the
provisions of the final order in the manner established in ORS
chapter 183 for appeal of order other than contested cases.
(8) If the presumption of public interest under ORS 537.153 (2)
is overcome, then before issuing a final order, the director or
the commission, if applicable, shall make the final determination
of whether the proposed use or the proposed use as modified in
the proposed final order would impair or be detrimental to the
public interest by considering:
(a) Conserving the highest use of the water for all purposes,
including irrigation, domestic use, municipal water supply, power
development, public recreation, protection of commercial and game
fishing and wildlife, fire protection, mining, industrial
purposes, navigation, scenic attraction or any other beneficial
use to which the water may be applied for which it may have a
special value to the public.
(b) The maximum economic development of the waters involved.
(c) The control of the waters of this state for all beneficial
purposes, including drainage, sanitation and flood control.
(d) The amount of waters available for appropriation for
beneficial use.
(e) The prevention of wasteful, uneconomic, impracticable or
unreasonable use of the waters involved.
(f) All vested and inchoate rights to the waters of this state
or to the use of the waters of this state, and the means
necessary to protect such rights.
(g) The state water resources policy formulated under ORS
536.295 to 536.350 and 537.505 to 537.534.
(9) Upon issuing a final order, the director shall notify the
applicant and each person who submitted written comments or
protests or otherwise requested notice of the final order and
send a copy of the final order to any person who requested a copy
and paid the fee required under ORS 536.050 (1)(p).
SECTION 1358. ORS 537.173 is amended to read:
537.173. (1) Within 20 days after the { - Water Resources
Director - } { + Director of the Oregon Department of Natural
Resources + } issues a final order under ORS 537.170 after the
conclusion of a contested case hearing, any party may file
exceptions to the order with the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + }.
(2) The commission shall issue a modified order, if allowed, or
deny the exceptions within 60 days after the close of the
exception period under subsection (1) of this section.
SECTION 1359. ORS 537.175 is amended to read:
537.175. (1) Except as provided in subsection (2) of this
section, the { - Water Resources Department - } { + Oregon
Department of Natural Resources + } shall issue a final order or
schedule a contested case hearing on an application for a water
right referred to in ORS 537.140 or 537.400 within 180 days after
the department proceeds with the application under ORS 537.150
(5).
(2) At the request of the applicant, the department may extend
the 180-day period set forth in subsection (1) of this section
for a reasonable period of time.
(3) If a contested case hearing is held, the department shall
issue a final order:
(a) Within 270 days after scheduling the hearing for a
contested case proceeding that involves three or more parties not
including the department; and
(b) Within 180 days after scheduling the hearing for all other
contested case proceedings.
(4) If the applicant does not request an extension under
subsection (2) of this section and the department fails to issue
a proposed final order or schedule a contested case hearing on an
application for a water right within 180 days after the
department proceeds with the application under ORS 537.150 (5),
the applicant may apply in the Circuit Court for Marion County
for a writ of mandamus to compel the department to issue a final
order or schedule a contested case hearing on an application for
a water right. If the application is for an out-of-stream use,
the writ of mandamus shall compel the department to issue a water
right permit, unless the department shows by affidavit that to
issue a permit may result in harm to an existing water right
holder.
SECTION 1360. ORS 537.190 is amended to read:
537.190. (1) The { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } may approve an
application for less water than applied for, or upon terms,
limitations and conditions necessary for the protection of the
public interest, including terms, limitations and conditions
relating to the release of water from an impoundment or diversion
structure necessary to prevent rapid fluctuation in the stream
level below the structure which may create a hazard to life or
property, if there exists substantial reason therefor. In any
event the department shall not approve an application for more
water than can be applied to a beneficial use.
(2) The department may approve an application for a municipal
water supply to the exclusion of all subsequent appropriations,
if the exigencies of the case demand.
(3) When conditions beyond the control of the owner or operator
of an impoundment or diversion structure, to which terms,
limitations and conditions made as provided in subsection (1) of
this section relate, threaten the safety of the structure and the
release of water from the structure contrary to such terms,
limitations and conditions is or may be necessary to remove the
threat:
(a) The terms, limitations and conditions shall not apply to
such release of water.
(b) The owner, operator or person in immediate charge of the
structure shall immediately notify the department by telegraph or
telephone of the situation.
(c) The owner, operator or person in immediate charge of the
structure shall immediately notify, to the best of the person's
ability, those persons whose life or property may be threatened
by the release of water.
SECTION 1361. ORS 537.211 is amended to read:
537.211. (1) The approval of an application referred to in ORS
537.140 or 537.400 shall be set forth in a water right permit
issued by the { - Water Resources Department - } { + Oregon
Department of Natural Resources + }. The permit shall specify the
details of the authorized use and shall set forth any terms,
limitations and conditions as the department considers
appropriate including but not limited to any applicable condition
required under ORS 537.289. A copy of the permit shall be filed
as a public record in the department. The permit shall be mailed
to the applicant, and upon receipt of the permit the permittee
may proceed with the construction of the necessary works and may
take all action required to apply the water to the designated
beneficial use and to perfect the proposed appropriation.
(2) Except as provided in subsection (6) of this section, if an
application under ORS 537.140 or 537.400 indicates that the
applicant does not have written authorization or an easement
permitting access to nonowned land crossed by the proposed ditch,
canal or other work, the department may issue a final order
approving the application if the approval includes a condition
requiring the applicant to obtain such written authorization, or
easement or ownership of such land and to provide the department
with a copy of the written authorization, easement or evidence of
ownership.
(3) If an application referred to in ORS 537.140 or 537.400 is
rejected, the department shall enter a written order setting
forth the reasons for the rejection. The applicant shall take no
action towards construction of the works or use of the water. The
department shall mail a copy of the order to the applicant.
(4) The holder of a water right permit may change the point of
diversion, change the point of appropriation, change the point of
diversion to allow the appropriation of ground water or use the
water on land to which the right is not appurtenant if:
(a) The use of water on land to which the right is not
appurtenant, the change of point of diversion or the change in
point of appropriation does not result in injury to an existing
water right;
(b) For a proposed change in the place of use of the water, the
land on which the water is to be used is owned or controlled by
the holder of the permit and is contiguous to the land to which
the permit is appurtenant;
(c) All other terms of the permit remain the same, including
but not limited to the beneficial use for which the water is used
and the number of acres to which water is applied;
(d) Prior approval is obtained from the district if the water
is transported or conveyed by an irrigation district organized
under ORS chapter 545, a drainage district organized under ORS
chapter 547, a water improvement district organized under ORS
chapter 552, a water control district organized under ORS chapter
553 or a district improvement company or a corporation organized
under ORS chapter 554;
(e) The holder of the permit provides written notice to the
department at least 60 days before making any changes to the
lands, point of diversion or point of appropriation described in
the permit;
(f) The holder of the permit complies with the publication
requirements of ORS 540.520 (5), if applicable;
(g) Diversion is provided with a proper fish screen, if
{ - requested by the State Department of Fish and Wildlife - }
{ + deemed necessary by the department + }; and
(h) For a request to transfer the point of diversion to allow
the appropriation of ground water, the proposed change meets the
standards set forth in ORS 540.531 (2) or (3).
(5) Notwithstanding the requirements of subsection (4)(b) of
this section, the holder of a water right permit may change the
place of use of all or any portion of water under the permit to
land that is not contiguous to the land to which the permit is
appurtenant if:
(a) The change to noncontiguous land is in furtherance of
mitigation or conservation efforts undertaken for the purposes of
benefiting a species listed as sensitive, threatened or
endangered under ORS 496.171 to 496.192 or the federal Endangered
Species Act of 1973 (16 U.S.C. 1531 to 1544), as determined by
the listing agency; and
(b) All other requirements of subsection (4) of this section
are met.
(6) For an application made by or on behalf of a public
corporation, the department may issue a permit approving the
application without requiring the applicant to obtain prior
written authorization or an easement permitting access to
nonowned lands affected by the proposed project. However, nothing
in this subsection shall be construed to allow any person to
trespass on the lands of another person.
(7) When the department receives notice under subsection (4)(e)
of this section, the department shall publish the notice in the
department's weekly public notice of water right applications.
(8) If the use of water under the permit is for operation of a
chemical process mine as defined in ORS 517.953:
(a) Review of the application and approval or denial of the
application shall be coordinated with the consolidated
application process under ORS 517.952 to 517.989. However, such
review and approval or denial shall take into consideration all
policy considerations for the appropriation of water as set forth
in this chapter and ORS chapter 536.
(b) The permit may be issued for exploration under ORS 517.702
to 517.740, but the permit shall be conditioned on the
applicant's compliance with the consolidated application process.
(c) The permit shall include a condition that additional
conditions may be added to the use of water when a water right
certificate is issued, or when the use of water is changed
pursuant to ORS 540.520 and 540.530 to use for a chemical process
mine operation.
(9) As used in this section, 'contiguous' includes land
separated from the land to which a water right is appurtenant by
roads, utility corridors, irrigation ditches or publicly owned
rights of way.
SECTION 1362. ORS 537.220 is amended to read:
537.220. (1) Any application, permit or license to appropriate
water may be assigned, subject to the conditions of the
application or permit, but no such assignment shall be binding,
except upon the parties to the assignment, unless filed for
record in the { - Water Resources Department - } { + Oregon
Department of Natural Resources + }.
(2) An assignment of an application, permit or license to
appropriate water filed for record with the { - Water
Resources - } department shall identify the current record owners
of all property described in the application, permit or license.
The assignor shall furnish proof acceptable to the department
that notice of the assignment has been given or attempted for
each identified property owner not a party to the assignment.
SECTION 1363. ORS 537.230 is amended to read:
537.230. (1) Except for a holder of a permit for municipal use,
the holder of a water right permit shall prosecute the
construction of any proposed irrigation or other work with
reasonable diligence and complete the construction within a
reasonable time, as fixed in the permit by the { - Water
Resources Department - } { + Oregon Department of Natural
Resources + }, not to exceed five years from the date of
approval.
(2) The holder of a permit for municipal use shall commence and
complete the construction of any proposed works within 20 years
from the date on which a permit for municipal use is issued under
ORS 537.211. The construction must proceed with reasonable
diligence and be completed within the time specified in the
permit, not to exceed 20 years. However, the department may order
and allow an extension of time to complete construction or to
perfect a water right beyond the time specified in the permit
under the following conditions:
(a) The holder shows good cause. In determining the extension,
the department shall give due weight to the considerations
described under ORS 539.010 (5) and to whether other governmental
requirements relating to the project have significantly delayed
completion of construction or perfection of the right;
(b) The extension of time is conditioned to provide that the
holder may divert water beyond the maximum rate diverted for
beneficial use before the extension only upon approval by the
department of a water management and conservation plan; and
(c) For the first extension issued after June 29, 2005, for a
permit for municipal use issued before November 2, 1998, the
department finds that the undeveloped portion of the permit is
conditioned to maintain, in the portions of waterways affected by
water use under the permit, the persistence of fish species
listed as sensitive, threatened or endangered under state or
federal law. The department shall base its finding on existing
data { - and upon the advice of the State Department of Fish
and Wildlife - } . An existing fish protection agreement between
the permit holder and a state or federal agency that includes
conditions to maintain the persistence of any listed fish species
in the affected portion of the waterway is conclusive for
purposes of the finding.
(3) Except as provided in ORS 537.240 and 537.248 and
subsection (2) of this section, the { - Water Resources - }
department, for good cause shown, shall order and allow an
extension of time, including an extension beyond the five-year
limit established in subsection (1) of this section within which
irrigation or other works shall be completed or the right
perfected. In determining the extension, the department shall
give due weight to the considerations described under ORS 539.010
(5) and to whether other governmental requirements relating to
the project have significantly delayed completion of construction
or perfection of the right.
(4) Except as provided in subsection (5) of this section and
ORS 537.409, upon completion of beneficial use as required under
this section, the permittee shall hire a water right examiner
certified under ORS 537.798 to survey the appropriation. Within
one year after application of water to a beneficial use or the
beneficial use date allowed in the permit, the permittee shall
submit a map of the survey as required by the { - Water
Resources - } department, which shall accompany the request for a
water right certificate submitted to the department under ORS
537.250. If any property described in the permit is not included
in the request for a water right certificate, the permittee shall
state the identity of the record owner of that property.
(5) The { - Water Resources Director - } { + Director of
the Oregon Department of Natural Resources + } may waive the
requirement under subsection (4) of this section that a permittee
hire a water right examiner certified under ORS 537.798 if:
(a) The permit is a supplemental water right that shares the
same distribution system and same place of use as the primary
water right; and
(b) The department determines that there is sufficient
information in the records of the department to determine proof
of beneficial use.
(6) Notwithstanding ORS 537.410, for purposes of obtaining a
water right certificate under ORS 537.250 for a supplemental
water right, the permittee shall have a facility capable of
handling the full rate and duty of water requested from the
supplemental source and be otherwise ready, willing and able to
use the amount of water requested, up to the amount of water
approved in the water right permit. To obtain a certificate for a
supplemental water right, the permittee is not required to have
actually used water from the supplemental source if:
(a) Water was available from the source of the primary water
right and the primary water right was used pursuant to the terms
of the primary water right; or
(b) The nonuse of water from the supplemental source occurred
during a period of time within which the exercise of the
supplemental water right permit was not necessary due to climatic
conditions.
SECTION 1364. ORS 537.240 is amended to read:
537.240. (1) In any case where a permit from the Federal Energy
Regulatory Commission is or shall be required in connection with
the development of the applicant's proposed project, the
applicant shall make application for the necessary federal permit
or license within six months, or, if the applicant is a municipal
corporation, within 10 years, from the date of filing application
for appropriation of water with the { - Water Resources
Department - } { + Oregon Department of Natural Resources + }.
(2) Upon failure of the applicant to file with the department,
within 30 days after the expiration of the period above
prescribed, satisfactory proof that application for the federal
permit or license has been duly made, the application to
appropriate water shall be terminated and become void.
(3) Where the application for the necessary permit or license
from the Federal Energy Regulatory Commission is finally rejected
or disallowed, or if after being granted, the permit or license
is revoked or forfeited because of failure to begin or carry on
the construction work when and as required by the permit or
license, then the department shall, upon the filing in the
{ - Water Resources - } department of satisfactory proof of
such fact, revoke and cancel any permit issued by the department
for appropriation of water for use in the project for which the
federal permit or license was required.
(4) In case of any permit issued for the appropriation of water
for the utilization of which a permit or license from the Federal
Energy Regulatory Commission is necessary, the time to be allowed
for the beginning and completion of construction under the permit
from the department shall be made to conform to the time fixed
for such beginning and completion in the permit or license, and
in any extension thereof, issued for the project by the Federal
Energy Regulatory Commission.
SECTION 1365. ORS 537.248 is amended to read:
537.248. (1) When the { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } issues a
reservoir permit for a new storage project to a county,
municipality or district, the department shall include in the
permit a date, not more than 10 years after the date the permit
is issued, to begin and complete construction of diversion or
storage works and to perfect the water right. An application for
a reservoir permit under this section shall be subject to the
provisions of ORS 537.140 to 537.211, except that the applicant
need not submit engineering plans and specifications before the
permit is issued. However, the applicant may not begin
construction of the reservoir until the department approves the
engineering plans and specifications.
(2) By order, the { - Water Resources Director - }
{ + Director of the Oregon Department of Natural Resources + }
may extend the date for beginning and completing construction and
for completing perfection of the use if the applicant shows
reasonable diligence and good cause. An extension allowed under
this subsection shall not exceed 10 years, but the applicant may
request additional extensions.
(3) As used in this section, 'district' includes the entities
set forth in ORS 198.010 and 198.180.
SECTION 1366. ORS 537.250 is amended to read:
537.250. (1) After the { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } has received a
request for issuance of a water right certificate accompanied by
the survey required under ORS 537.230 (4) that shows, to the
satisfaction of the department, that an appropriation has been
perfected in accordance with the provisions of the Water Rights
Act, the department shall issue to the applicant a certificate of
the same character as that described in ORS 539.140. The
certificate shall be recorded and transmitted to the applicant as
provided in that section.
(2) When issuing a water right certificate under subsection (1)
of this section in the name of a district as defined in ORS
540.505, or in the name of a government agency for a district,
the department may issue the water right certificate for land not
described in the permit in accordance with ORS 537.252.
(3) Rights to the use of water acquired under the provisions of
the Water Rights Act, as set forth in a certificate issued under
subsection (1) of this section, shall continue in the owner
thereof so long as the water shall be applied to a beneficial use
under and in accordance with the terms of the certificate,
subject only to loss:
(a) By nonuse as specified and provided in ORS 540.610; or
(b) As provided in ORS 537.297.
SECTION 1367. ORS 537.252 is amended to read:
537.252. (1) When issuing a water right certificate under ORS
537.250 to a district, or to a government agency for a district,
the { - Water Resources Department - } { + Oregon Department
of Natural Resources + } may issue the water right certificate
for land not described in the permit if:
(a) Water furnished by the district under the permit has been
applied beneficially to the land;
(b) The land not described in the permit that is proposed to be
included in the certificate is included within the legally
established boundaries of the district and is subject to the
charges, assessments and liens of the district;
(c) The certificate does not authorize a greater rate, duty or
acreage than is authorized by the terms of the permit, and all
other conditions of the permit are satisfied;
(d) The inclusion of land not described in the permit will not
result in injury to other existing water rights or in enlargement
of the right authorized under the permit; and
(e) The impact to the water source of including land not
described in the permit will not differ significantly from the
impact expected at the time the permit was issued for the lands
described in the permit.
(2) If a district proposes to use water on lands not described
in the permit, the { - Water Resources - } department may
issue a certificate that includes such additional lands if all of
the conditions of subsection (1) of this section are satisfied
and if, no later than 60 days before the district actually
applies the water to the lands not described in the permit, the
district provides written notice to the department. The notice
shall include a copy of the original permit map modified to show
the lands to be added and lands to be removed from the
description of the place of use of the water. Upon receipt of the
notice from the district, the department shall provide public
notice of the proposed change by means of publication in the
department's weekly notice and by publication once each week for
three successive weeks in a newspaper having general circulation
in the county or counties in which the affected lands are
located. The cost of publication shall be paid by the district.
(3) If a district has issued an order of inclusion or
exclusion, the boundaries of the irrigation district shall be
deemed to have been legally changed in the absence of approval of
the Secretary of the Interior.
(4) As used in this section:
(a) 'District' has the meaning given in ORS 540.505.
(b) 'Legally established boundaries' means the boundaries of a
district as established at the time of creation of the district
and as the boundaries may have changed after creation of the
district by an inclusion, exclusion or merger proceeding
according to state law.
SECTION 1368. ORS 537.260 is amended to read:
537.260. (1) Except as provided under subsection (4) of this
section for a permit issued to a municipality, whenever the time
within which any appropriation under a permit should have been
perfected has expired and the owner of the permit fails or
refuses within three months thereafter to submit to the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + } proof of completion of the appropriation as
required by ORS 537.230 and 537.250, the department may, after 60
days' notice by registered mail or by certified mail with return
receipt, order the cancellation of the permit. The cancellation
shall have the same force and effect as cancellation of a permit
in the proceedings provided for in ORS 537.410 to 537.450.
(2) The department may determine the extent to which an
appropriation has been perfected under any permit at the time of
submission of final proof provided for in ORS 537.250, and shall
limit the certificate provided for in that section to a
description of such appropriation as has been actually perfected
to the extent that the water applied for has been actually
applied to the beneficial use contemplated in the permit.
(3) Any person owning an application, permit or water right
certificate subsequent in priority may jointly or severally
contest before the department the issuance of the water right
certificate at any time before it has issued, and after the time
has expired for the completion of the appropriation under the
permit, or within three months after issuance of the certificate.
The contest shall be brought upon application made, and hearing
shall be had in the same manner and after notice as provided in
ORS 537.420 for proceedings for cancellation of permits. The
department, in a final order, may cancel the permit or determine
the extent to which the appropriation claimed thereunder has been
perfected, and issue a water right certificate accordingly, or if
a certificate has been issued, in the case of a contest within
three months after its issuance, the department may cancel the
water right certificate, or affirm its issuance, and if the water
right certificate in such case is canceled, the permit upon which
it is based shall also be canceled.
(4) A municipality may partially perfect not less than 25
percent of the water authorized by its permit without loss of
priority or cancellation of the municipality's permit under this
section. If a municipality defers perfection of its water right
under this section, the department shall issue a certificate
under ORS 537.250 only for the amount perfected. Upon perfection
of the deferred amount, the municipality shall request a water
right certificate for the remaining portion of the water applied
for in the original permit application. As used in this section,
' municipality' includes a city, a port formed under ORS 777.005
to 777.725 and 777.915 to 777.953, a domestic water supply
district formed under ORS chapter 264 or a water authority formed
under ORS chapter 450.
SECTION 1369. ORS 537.283 is amended to read:
537.283. (1) Notwithstanding any other provision of ORS 537.140
to 537.350, in accordance with the applicable provisions of ORS
chapter 183, the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } shall by rule
establish a procedure for processing applications to appropriate
water for hydroelectric power under ORS 537.140 to 537.320.
(2) Rules adopted under subsection (1) of this section:
(a) To the extent possible, shall be consistent with the
process established for other applications to appropriate water
for other beneficial uses under ORS 537.140 to 537.252.
(b) Shall not supersede any provision pertaining to
hydroelectric power established under this chapter or ORS chapter
543, to the extent such provisions are applicable to applications
to appropriate water for hydroelectric power purposes.
(c) Need not comply with the mandatory time limits or notice
provisions established under ORS 537.140 to 537.350 if such
provisions are incompatible with the substantive requirements
applicable to applications to appropriate water for hydroelectric
power purposes.
SECTION 1370. ORS 537.285 is amended to read:
537.285. A municipal applicant may contract with a private
person for the purpose of generating hydroelectric power. The
municipal applicant shall retain sufficient benefit and interest
in, and control of a joint project as necessary for the project
to be considered a municipal project. A municipal applicant and a
private person developing a joint project under this chapter must
comply with the rules adopted by the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + }
under ORS 537.287.
SECTION 1371. ORS 537.287 is amended to read:
537.287. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } shall establish rules necessary
to carry out the provisions of ORS 537.285. The rules shall
include the amount of control over and interest in a joint
project a municipal applicant must retain in order to receive the
benefit of the municipal preference and proceed under the
municipal application process set forth in this chapter.
SECTION 1372. ORS 537.289 is amended to read:
537.289. (1) Whenever the { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } issues a permit
under ORS 537.211 allowing a municipal corporation or district,
as defined in ORS 543.655, to appropriate water for the purpose
of generating hydroelectric power, the department shall impose
the following conditions on the permit, in addition to any other
term, limitation or condition imposed under ORS 537.211:
(a) That the permit may not be assigned to any nonmunicipal
entity so as to result in a loss of ownership of the permit by a
municipal corporation or district.
(b) That the holder of the permit must remain qualified as a
municipal applicant under ORS 537.285 and 537.287. If the
municipal corporation or district proposes to generate
hydroelectric power jointly with a nonmunicipal entity, that any
proposed changes in the agreement between the municipal
corporation and the nonmunicipal entity must be reviewed by the
department to determine whether the permittee remains qualified
as a municipal applicant.
(2) If the department determines that a permittee no longer
qualifies as a municipal applicant, the department shall notify
the permittee and any nonmunicipal entity developing a project
with the permittee that the parties have 90 days to amend their
joint relationship to continue qualifying as a municipal
corporation or district.
SECTION 1373. ORS 537.292 is amended to read:
537.292. (1) Whenever the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } issues a certificate
under ORS 537.250 granting a municipal corporation or district as
defined in ORS 543.655 the right to appropriate water for the
purpose of generating hydroelectric power, the commission shall
impose the following conditions on the certificate, in addition
to any other term, limitation or condition imposed under ORS
537.250:
(a) That the water right may not be assigned to any
nonmunicipal entity so as to result in a loss of ownership of the
certificate by the municipal corporation or district.
(b) That the holder of the water right certificate must remain
qualified as a municipal applicant under ORS 537.285 and 537.287.
If the municipal corporation or district is generating the
hydroelectric power jointly with a nonmunicipal entity, that any
proposed changes in the agreement between the municipal
corporation and the nonmunicipal entity must be reviewed by the
{ - Water Resources - } commission to determine whether or not
the owner of the certificate remains qualified as a municipal
applicant.
(2) If the commission determines that an owner of a certificate
no longer qualifies as a municipal applicant, the commission
shall notify the owner of the certificate and any nonmunicipal
entity developing or operating the project jointly with the owner
that the parties have 90 days to amend their joint agreement in a
manner that allows the parties to continue to qualify as a
municipal corporation or district.
SECTION 1374. ORS 537.295 is amended to read:
537.295. (1) If the holder of a permit to appropriate water for
hydroelectric purposes under this chapter fails, after receiving
notice under ORS 537.289 (2), to amend the joint agreement so the
holder continues to qualify as a municipal applicant, or if the
holder of the permit has assigned ownership of the permit to an
entity other than a municipal corporation or district, the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + } shall initiate proceedings to cancel the
permit.
(2) A proceeding to cancel a permit under subsection (1) of
this section shall be conducted according to the provisions under
ORS chapter 183 for a contested case hearing.
SECTION 1375. ORS 537.297 is amended to read:
537.297. (1) If the owner of a certificate to appropriate water
for hydroelectric purposes under this chapter fails, after
receiving notice under ORS 537.289 (2), to amend the joint
agreement so the owner continues to qualify as a municipal
applicant, or if the holder of the certificate has assigned
ownership of the certificate to an entity other than a municipal
corporation or district, the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } shall initiate
proceedings to cancel the certificate.
(2) A proceeding to cancel a certificate under subsection (1)
of this section shall be conducted according to the provisions
under ORS chapter 183 for a contested case hearing.
SECTION 1376. ORS 537.299 is amended to read:
537.299. (1) If the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } cancels a permit or
certificate under ORS 537.295 or 537.297, the municipal applicant
may apply for a permit to appropriate water for hydroelectric
purposes under this chapter, or the private developer may apply
for a hydroelectric license under ORS chapter 543. However, the
parties may not jointly apply for a permit to appropriate water
for hydroelectric purposes pursuant to ORS 537.285.
(2) When a permit or certificate is canceled under ORS 537.295
or 537.297, the cancellation order may include such conditions
and requirements as the commission deems necessary for the public
safety and welfare, including but not limited to:
(a) Delay of the effective date of cancellation until such time
as another entity is authorized to operate the facility under
this chapter or ORS chapter 543; or
(b) Provision for operation of the facility during the period
between cancellation and issuance of a new permit, certificate or
license.
SECTION 1377. ORS 537.310 is amended to read:
537.310. (1) Any corporation organized for the construction,
maintenance or operation of any railway may acquire, hold and
appropriate to its use for railway purposes any waters within the
state. The appropriation may be accomplished by the procedure
provided by ORS 537.130 and 537.140 to 537.252. A railway
corporation may acquire by purchase, gift or devise, or by
condemnation as provided in subsection (2) of this section, any
water rights owned by any person and the rights of other persons
affected by change of place or character of use of the water
rights. Upon acquisition of the water rights by the corporation
the right shall be severed from the land of the grantor and
simultaneously transferred and become appurtenant to the
operating property of the railway corporation, without losing the
priority of the water right as originally established.
(2) Any such corporation may condemn and appropriate for
railway operating purposes the rights of any private appropriator
of waters within the state. The right of condemnation shall be
exercised in the same manner as other property is condemned and
appropriated for railway purposes; provided, that no water right
so condemned shall exceed two cubic feet per second.
(3) Upon satisfactory proof of the acquisition of water rights
by any such corporation through purchase, gift, devise or
condemnation, the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } shall issue to the
corporation a certificate of the same character as that described
in ORS 539.140, which shall be recorded and transmitted to the
corporation, as provided in that section. All certificates of
water rights issued before May 29, 1925, by the Board of Control
or the Water Resources Director to any such corporation shall be
sufficient in law to convey to the corporation the water rights
described in the certificates, and such certificates shall be
received in evidence in all courts in this state.
SECTION 1378. ORS 537.330 is amended to read:
537.330. (1) In any transaction for the conveyance of real
estate that includes a water right, the seller of the real estate
shall, upon accepting an offer to purchase that real estate, also
inform the purchaser in writing whether any permit, transfer
approval order or certificate evidencing the water right is
available and that the seller will deliver any permit, transfer
approval order or certificate to the purchaser at closing, if the
permit, transfer approval order or certificate is available.
(2) Upon closing and delivery of the instrument of conveyance
in a real estate transaction involving the transfer of a water
right, the seller shall also deliver to the purchaser evidence of
any permit, transfer approval order or certificate of water
rights if the permit, transfer approval order or certificate is
available.
(3) The failure of a seller to comply with the provisions of
this section does not invalidate an instrument of conveyance
executed in the transaction.
(4) This section does not apply to any transaction for the
conveyance of real estate that includes a water right when the
permit, transfer approval order or certificate evidencing the
water right is held in the name of a district or corporation
formed pursuant to ORS chapter 545, 547, 552, 553 or 554.
(5) As used in this section:
(a) 'Certificate' means a certificate or registration issued
under ORS 537.250 (1), 537.585, 539.140 or 539.240.
(b) 'Permit' means a permit issued under ORS 537.211, 537.240
or 537.625.
(c) 'Transfer approval order' means an order of the { - Water
Resources Commission - } { + Oregon Natural Resources
Commission + } issued under ORS 540.530.
SECTION 1379. ORS 537.332 is amended to read:
537.332. As used in ORS 537.332 to 537.360:
(1) 'In-stream' means within the natural stream channel or lake
bed or place where water naturally flows or occurs.
(2) 'In-stream flow' means the minimum quantity of water
necessary to support the public use requested by an agency.
(3) 'In-stream water right' means a water right held in trust
by the { - Water Resources Department - } { + Oregon
Department of Natural Resources + } for the benefit of the people
of the State of Oregon to maintain water in-stream for public
use. An in-stream water right does not require a diversion or any
other means of physical control over the water.
(4) 'Public benefit' means a benefit that accrues to the public
at large rather than to a person, a small group of persons or to
a private enterprise.
(5) 'Public use' includes but is not limited to:
(a) Recreation;
(b) Conservation, maintenance and enhancement of aquatic and
fish life, wildlife, fish and wildlife habitat and any other
ecological values;
(c) Pollution abatement; or
(d) Navigation.
SECTION 1380. ORS 537.336 is amended to read:
537.336. { - (1) The State Department of Fish and Wildlife
may request the Water Resources Commission to issue water right
certificates for in-stream water rights on the waters of this
state in which there are public uses relating to the
conservation, maintenance and enhancement of aquatic and fish
life, wildlife and fish and wildlife habitat. The request shall
be for the quantity of water necessary to support those public
uses as recommended by the State Department of Fish and
Wildlife. - }
{ + (1) The Oregon Natural Resources Commission may issue
water right certificates for in-stream water rights on the waters
of this state in which there are public uses relating to:
(a) The conservation, maintenance and enhancement of wildlife,
aquatic and fish life and wildlife and fish habitat; and
(b) Recreation and scenic attraction. + }
(2) The Department of Environmental Quality may request the
{ - Water Resources - } commission to issue water right
certificates for in-stream water rights on the waters of this
state to protect and maintain water quality standards established
by the Environmental Quality Commission under ORS 468B.048. The
request shall be for the quantity of water necessary for
pollution abatement as recommended by the department { - of
Environmental Quality - } .
{ - (3) The State Parks and Recreation Department may request
the Water Resources Commission to issue water right certificates
for in-stream water rights on the waters of this state in which
there are public uses relating to recreation and scenic
attraction. The request shall be for the quantity of water
necessary to support those public uses as recommended by the
State Parks and Recreation Department. - }
{ - (4) - } { + (3) + } Any request for an in-stream water
right to be supplied from stored water shall refer to the
reservoir for a supply of water and shall show by documentary
evidence that an agreement has been entered into with the owners
of the reservoir for a sufficient interest in the reservoir to
impound enough water for the purposes set forth in the request.
SECTION 1381. ORS 537.338 is amended to read:
537.338. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } by rule shall establish
standards, criteria and procedures by which a { - state agency
included under ORS 537.336 - } { + person + } may request an
in-stream water right to be issued under ORS 537.336.
SECTION 1382. ORS 537.341 is amended to read:
537.341. Subject to the provisions of ORS 537.343, the
{ - Water Resources Commission - } { + Oregon Department of
Natural Resources + } shall issue a certificate for an in-stream
water right. The in-stream water right shall date from the filing
of the application with the
{ - commission - } { + department + }. The certificate shall
be in the name of the { - Water Resources - } department as
trustee for the people of the State of Oregon and shall be issued
by the { - commission - } { + department + } according to the
procedures established under ORS 537.338. The
{ - commission - } { + department + } shall forward a copy of
each certificate issued under this section to the { - state
agency - } { + person + } requesting the in-stream water right.
A certificate for an in-stream water right supplied by stored
water shall refer to the reservoir described in the request filed
under ORS 537.336.
SECTION 1383. ORS 537.343 is amended to read:
537.343. (1) A proposed final order issued under ORS 537.170
(6) for an in-stream water right certificate may include any
condition the { - Water Resources Director - } { + Director
of the Oregon Department of Natural Resources + } considers
necessary, but which is consistent with the intent of ORS 537.332
to 537.360. The proposed final order may:
(a) Approve the in-stream water right for the quantity of water
requested;
(b) Approve the requested in-stream water right for a lesser
quantity of water; or
(c) Reject the requested in-stream water right.
(2) If the director reduces or rejects the in-stream water
right as requested, or conditions the in-stream water right, the
director shall include a statement of findings that sets forth
the basis for the reduction, rejection or conditions. The
director shall be the final authority in determining the level of
in-stream flow necessary to protect the public use.
(3) After the director issues a final order approving an
in-stream water right, the { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } shall issue a
certificate for an in-stream water right according to the
provisions of ORS 537.341.
SECTION 1384. ORS 537.346 is amended to read:
537.346. (1) All minimum perennial streamflows established on
any waters of this state before June 25, 1988, shall be converted
to in-stream water rights after the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + }
reviews the streamflows and the { - Water Resources
Department - } { + Oregon Department of Natural Resources + }
issues a certificate for an in-stream water right in accordance
with ORS 537.343 with the same priority date as the minimum
perennial streamflow.
(2) The priority date for that portion of an in-stream water
right that uses the stored water component of a minimum perennial
streamflow in the Willamette Basin shall be the date the
commission or its predecessor adopted the minimum perennial
streamflow containing the stored water component.
(3) Notwithstanding the priority date established under
subsection (2) of this section, until the state enters into a
contract that meets the criteria set forth in subsection (4) of
this section with the owner of the storage facility to release
the stored water for the purpose of satisfying the in-stream
water right, for that portion of an in-stream water right in the
Willamette Basin converted from the stored water component of a
minimum perennial streamflow, the department:
(a) May not require the release of the stored water; and
(b) Shall not regulate the use of water to provide water for
the portion of the in-stream water right using stored water.
(4) A contract for the release of stored water to satisfy an
in-stream water right shall:
(a) Include as parties to the contract the State of Oregon and
the owner of the storage facility;
(b) Specifically allow the state to obtain the release of
stored water to satisfy an in-stream water right; and
(c) Identify a method to determine the specific quantity of
water released from storage to satisfy the stored water component
of the in-stream water right.
(5) If the federal government does not release water to satisfy
a stored water component of an in-stream water right pursuant to
a contract that satisfies the criteria set forth in subsection
(4) of this section, the department may not regulate the use of
water by other water right holders to satisfy the stored water
component of an in-stream water right or take any other action
that impairs the rights of any person under a valid contract for
the use of the stored water.
SECTION 1385. ORS 537.348 is amended to read:
537.348. (1) Any person may purchase or lease all or a portion
of an existing water right or accept a gift of all or a portion
of an existing water right for conversion to an in-stream water
right. Any water right converted to an in-stream water right
under this section shall retain the priority date of the water
right purchased, leased or received as a gift. At the request of
the person the { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } shall issue a new certificate
for the in-stream water right showing the original priority date
of the purchased, gifted or leased water right. A person who
transfers a water right by purchase, lease or gift under this
subsection shall comply with the requirements for the transfer of
a water right under ORS 540.505 to 540.585.
(2) Any person who has an existing water right may lease all or
a portion of the existing water right for use as an in-stream
water right for a specified period without the loss of the
original priority date. During the term of such lease, the use of
the water right as an in-stream water right shall be considered a
beneficial use.
(3) A lease of all or a portion of an existing water right for
use as an in-stream water right under subsection (2) of this
section may allow the split use of the water between the existing
water right and the in-stream right during the same water or
calendar year provided:
(a) The uses are not concurrent; and
(b) The holders of the water rights measure and report to the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + } the use of the existing water right and the
in-stream water right.
SECTION 1386. ORS 537.348, as amended by section 2, chapter
205, Oregon Laws 2001, is amended to read:
537.348. (1) Any person may purchase or lease all or a portion
of an existing water right or accept a gift of all or a portion
of an existing water right for conversion to an in-stream water
right. Any water right converted to an in-stream water right
under this section shall retain the priority date of the water
right purchased, leased or received as a gift. At the request of
the person the { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } shall issue a new certificate
for the in-stream water right showing the original priority date
of the purchased, gifted or leased water right. A person who
transfers a water right by purchase, lease or gift under this
subsection shall comply with the requirements for the transfer of
a water right under ORS 540.505 to 540.585.
(2) Any person who has an existing water right may lease all or
a portion of the existing water right for use as an in-stream
water right for a specified period without the loss of the
original priority date. During the term of such lease, the use of
the water right as an in-stream water right shall be considered a
beneficial use.
SECTION 1387. ORS 537.349 is amended to read:
537.349. Except as provided in ORS 537.343, the { - Water
Resources Department - } { + Oregon Department of Natural
Resources + } shall process a request received under ORS 537.336
for a certificate for an in-stream water right in accordance with
the provisions for obtaining a permit to appropriate water under
ORS 537.140 to 537.252.
SECTION 1388. ORS 537.350 is amended to read:
537.350. (1) After the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } issues a certificate
for an in-stream water right under ORS 537.341 to 537.348, the
in-stream water right shall have the same legal status as any
other water right for which a certificate has been issued.
(2) An in-stream water right is not subject to cancellation
under ORS 537.260 or 537.410 to 537.450 but an in-stream water
right may be canceled under ORS 540.610 to 540.650.
SECTION 1389. ORS 537.352 is amended to read:
537.352. Notwithstanding any provision of ORS 537.332 to
537.343 and 537.350, the right to the use of the waters of this
state for a project for multipurpose storage or municipal uses or
by a municipal applicant, as defined in ORS 537.282, for a
hydroelectric project, shall take precedence over an in-stream
water right when the { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } conducts a review
of the proposed project in accordance with ORS 537.170. The
precedence given under this section shall not apply if the
in-stream water right was established pursuant to ORS 537.346 or
537.348.
SECTION 1390. ORS 537.356 is amended to read:
537.356. (1) Any local government, local watershed council or
state agency or any other individual cooperating jointly with a
local government, local watershed council or state agency may
request the { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } to reserve unappropriated water
for multipurpose storage for future economic development.
(2) A request under subsection (1) of this section shall be in
writing on a form provided by the { - Water Resources
Department - } { + Oregon Department of Natural Resources + }.
Before deciding whether to approve the request and initiate a
rulemaking process, the commission shall request comments from
any local government or watershed council within the geographic
area or basin affected by the request. The comment period shall
be closed not later than 120 days after the request is submitted.
(3) The priority date for any reservation established under
this section shall be the date on which the commission takes
action to initiate the rulemaking process.
SECTION 1391. ORS 537.358 is amended to read:
537.358. (1) In adopting a rule under ORS 537.356 to reserve
unappropriated water for multipurpose storage for future economic
development, the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } shall include a
public interest review that takes into consideration the factors
described under ORS 537.170.
(2) A person requesting use of the reserved water for new
storage shall submit a water right application and comply with
the procedure set forth in ORS 537.140 to 537.252, except that
the priority date for a storage right approved for use of
reserved water shall be the date of the reservation. The
commission by rule may describe a process for ensuring that the
proposed use is consistent with the requirements of the rule
establishing the reservation.
SECTION 1392. ORS 537.360 is amended to read:
537.360. If an application is pending under this chapter for a
water right permit to use water for hydroelectric purposes or
under ORS 543.010 to 543.610 for a hydroelectric permit or
license at the time the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } receives an
application for an in-stream water right under ORS 537.336 for
the same stream or reach of the stream, the commission shall not
take any action on the application for an in-stream water right
until the commission issues a final order approving or denying
the pending hydroelectric application.
SECTION 1393. ORS 537.385 is amended to read:
537.385. (1) Notwithstanding any condition or limitation of a
water right permit issued under ORS 537.211 or 537.625 or a water
right certificate issued under ORS 537.250, 537.630 or 539.140,
upon receipt of a request by the State Department of Agriculture,
the { - Water Resources Commission - } { + Oregon Natural
Resources Commission + } may, by rule, extend the irrigation
season of a subbasin beyond the period established by
adjudication, by rule or by condition imposed on a permit or
certificate, if the commission finds:
(a) Water is available during the period of the extended
irrigation season;
(b) Water use during the extended season would not impair
in-stream flows that are necessary to protect aquatic resources;
and
(c) Water diversion and use during the period of the extended
season would not impair the achievement or maintenance of water
quality standards as established for the water source by the
Department of Environmental Quality.
(2) If the source of water identified in the request is stored
water and water is available from the storage source during the
period of the extended irrigation season, the commission may
extend the irrigation season as requested without making the
findings required by subsection (1) of this section. However, use
of water during the extended period shall be limited to the
stored water.
(3) In order to ensure that use of water during an extended
irrigation season does not injure existing and future water
rights, use of water during the extended period of the irrigation
season shall be subordinated to all existing and future water
rights.
(4) Use of water during the extended irrigation season shall
comply with all conditions and limitations of the permit or
certificate, including the rate, duty and place of use of the
right.
(5) Use of water shall be regulated among irrigators for whom
the season has been extended during the extended irrigation
season according to the priority date of the permit or
certificate.
SECTION 1394. ORS 537.400 is amended to read:
537.400. (1) All applications for reservoir permits shall be
subject to the provisions of ORS 537.130, 537.140, 537.142 and
537.145 to 537.240, except that an enumeration of any lands
proposed to be irrigated under the Water Rights Act shall not be
required in the primary permit. But the party proposing to apply
to a beneficial use the water stored in any such reservoir shall
file an application for permit, to be known as the secondary
permit, in compliance with the provisions of ORS 537.130,
537.140, 537.142 and 537.145 to 537.240. The application shall
refer to the reservoir for a supply of water and shall show by
documentary evidence that an agreement has been entered into with
the owners of the reservoir for a sufficient interest in the
reservoir to impound enough water for the purposes set forth in
the application, that the applicant has provided notice of the
application to the operator of the reservoir and, if applicable,
that an agreement has been entered into with the entity
delivering the stored water. When beneficial use has been
completed and perfected under the secondary permit, the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + } shall take the proof of the water user
under the permit. The final certificate of appropriation shall
refer to both the ditch described in the secondary permit and the
reservoir described in the primary permit.
(2) Whenever application is made for permit to store water in a
reservoir or pond for any beneficial use which does not
contemplate future diversion of the stored water except by
livestock drinking from stock water ponds, the extent of
utilization thereof may be included in the reservoir permit and
no secondary permit shall be required. However, in cases where
water from a stream is required to maintain a reservoir or pond
by replacing evaporation and seepage losses, or is required to
maintain suitable fresh water conditions for the proposed use and
to prevent stagnation, the applicant for permit to store water in
such reservoir or pond shall also file an application for permit
to appropriate the waters of the stream.
(3) An application submitted to construct a reservoir storing
less than 9.2 acre-feet of water or with a dam less than 10 feet
in height need not be accompanied by a map prepared by a water
right examiner certified under ORS 537.798 as required by ORS
537.140 (4). The map submitted with the application shall comply
with standards established by the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + }. The
survey required under ORS 537.230 shall be prepared by a water
right examiner certified under ORS 537.798 and shall be submitted
to the department before the department issues the water right
certificate.
(4) If a dam safety review is required under ORS 540.350, the
department may issue a final order approving an application on
the basis of preliminary plans, specifications and supporting
information if the approval includes a condition requiring the
commission's approval of final plans, specifications and
supporting information under ORS 540.350 before the permit is
issued.
(5) Notwithstanding the provisions of ORS 537.211 (2), the
department may approve an application for a reservoir permit for
which a dam safety review is required under ORS 540.350 and issue
a permit, subject to the condition that before the reservoir may
be filled, the permittee shall submit to the department evidence
that the permittee owns, or has written authorization or an
easement permitting access to, all lands to be inundated by the
reservoir.
SECTION 1395. ORS 537.405 is amended to read:
537.405. { - (1) - } Reservoirs in existence on or before
January 1, 1995, that store less than 9.2 acre-feet of water or
with a dam or impoundment structure less than 10 feet in height
{ - , are found to be a beneficial use of the water resources of
this state. Except as provided in subsection (4) of this
section, such reservoirs - } are exempt from regulation by the
{ - Water Resources Commission and the Water Resources
Department - } { + Oregon Department of Natural Resources and
the Oregon Natural Resources Commission + } and are not required
to obtain a permit or certificate under ORS 537.140 to 537.252.
{ - (2)(a) On or before January 31, 1997, an owner of a
reservoir constructed before January 1, 1995, shall provide
written notification to the department of the existence of the
exempt reservoir. The written notification shall include the
quantity of water stored by the reservoir, the source of the
water used to fill the reservoir and a map or drawing of
sufficient quality and scale to establish the general location of
the reservoir by tax lot, township, range and section and to the
nearest quarter-quarter section. - }
{ - (b) Any person who submitted a notice of exemption for a
reservoir under ORS 537.141 and qualified for the exemption shall
be allowed an exemption. - }
{ - (3) Within 90 days after receiving written notification
under subsection (2) of this section, the department shall
provide notice of the exemption in the manner the department
determines to be the most appropriate. - }
{ - (4) Detailed, legally obtained information demonstrating
that a specific reservoir exempt under subsection (1) of this
section should not be exempt shall be submitted in writing to the
department on or before August 1, 1997: - }
{ - (a) By the State Department of Fish and Wildlife if the
reservoir should not be exempt because the existing reservoir,
including any impoundment structure, poses a significant
detrimental impact to existing fishery resources; or - }
{ - (b) By any person if the existing reservoir should not be
exempt because the existing reservoir, including the storage or
use of the water, results in injury to an existing water
right. - }
{ - (5) Within 180 days after the department receives
information under subsection (4) of this section, the Water
Resources Director shall determine whether the reservoir results
in injury to an existing water right or poses a significant
detrimental impact to existing fishery resources. The
determination of injury to an existing water right or impact to
existing fishery resources shall be based on verifiable
evidence. - }
{ - (6) If the director determines that an existing reservoir
does not injure an existing water right or pose a significant
detrimental impact to existing fishery resources, the reservoir
shall be exempt under subsection (1) of this section. - }
{ - (7) If the director determines that an existing reservoir
results in injury to an existing water right or poses a
significant detrimental impact to existing fishery resources, the
director shall require the owner of the reservoir to take
appropriate action to mitigate injury to existing water rights or
impact to the existing fishery resources. - }
{ - (8) If the director fails to act under subsection (6) or
(7) of this section within 180 days after receiving the
information under subsection (4) of this section, the reservoir
shall be considered exempt. - }
{ - (9) Nothing in this section shall be construed to allow
any owner of a reservoir exempt under this section to increase
the quantity of water stored in or diverted from such reservoir
on or before January 1, 1995. - }
SECTION 1396. ORS 537.407 is amended to read:
537.407. (1) The { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } shall issue a
water right certificate to any person who submitted an
application for a reservoir under section 4, chapter 595, Oregon
Laws 1993.
{ - (2) Within 90 days after issuing a certificate under
subsection (1) of this section, the department shall provide
notice of the certificate in the manner the department determines
to be the most appropriate. - }
{ - (3) Detailed, legally obtained information demonstrating
that a specific reservoir granted a certificate under subsection
(1) of this section should not be certificated shall be submitted
in writing to the department on or before August 1, 1997: - }
{ - (a) By the State Department of Fish and Wildlife if the
reservoir should not be exempt because the existing reservoir,
including any impoundment structure, poses a significant
detrimental impact to existing fishery resources; or - }
{ - (b) By any person if the existing reservoir should not be
exempt because the existing reservoir, including the storage or
use of the water, results in injury to an existing water
right. - }
{ - (4) Within 180 days after the department receives
information under subsection (3) of this section, the Water
Resources Director shall determine whether the reservoir results
in injury to an existing water right or poses a significant
detrimental impact to existing fishery resources. The
determination of injury to an existing water right or impact to
existing fishery resources shall be based on verifiable
evidence. - }
{ - (5) If the director determines that an existing reservoir
does not injure an existing water right or pose a significant
detrimental impact to existing fishery resources, the certificate
for the reservoir shall continue with the same terms and
conditions included with the certificate under subsection (1) of
this section. - }
{ - (6) If the director determines that an existing reservoir
results in injury to an existing water right or poses a
significant detrimental impact to existing fishery resources, the
director shall require the owner of the reservoir to take
appropriate action to mitigate injury to existing water rights or
impact to the existing fishery resources. - }
{ - (7) If the director fails to act under subsection (5) or
(6) of this section within 180 days after receiving the
information under subsection (3) of this section, the certificate
shall continue with the same terms and conditions included with
the certificate. - }
{ - (8) Nothing in this section shall be construed to allow
any owner of a reservoir certificated under this section to
increase the quantity of water stored in or diverted from such
reservoir on or before January 1, 1995. - }
{ - (9) - } { + (2) + } Any person who submitted an
application for a reservoir under section 4, chapter 595, Oregon
Laws 1993, may submit a written request to the department to
convert the application to a notice of exemption under ORS
537.405. Upon receipt of a request under this subsection, the
department shall refund all fees and convert the application to a
notice of exemption.
SECTION 1397. ORS 537.409 is amended to read:
537.409. (1) In lieu of the process set forth in ORS 537.140 to
537.211 for applying for a water right permit, an owner of a
reservoir may submit an application to the { - Water Resources
Department - } { + Oregon Department of Natural Resources + }
to issue a water right permit under ORS 537.211 or a certificate
under ORS 537.250 according to the process set forth in this
section if the reservoir:
(a) Has a storage capacity of less than 9.2 acre-feet or a dam
or impoundment structure less than 10 feet in height;
(b) Does not injure any existing water right;
(c) Does not pose a significant detrimental impact to existing
fishery resources as determined { - on the basis of information
submitted by the State Department of Fish and Wildlife - }
{ + by the department + }; and
(d) Is not prohibited under ORS 390.835.
(2) An application for a water right permit for a reservoir
under subsection (1) of this section shall provide sufficient
information to demonstrate compliance with the criteria set forth
in subsection (1) of this section. The application shall:
(a) Include the quantity of water to be stored by the
reservoir, a map indicating the location of the reservoir and the
source of the water used to fill the reservoir; and
(b) Be accompanied by the fee established in ORS 536.050
(1)(q).
(3) The map required under subsection (2) of this section need
not be prepared by a water right examiner certified under ORS
537.798. The map submitted with the application shall comply with
standards established by the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + }.
(4) Within 60 days after receiving an application under
subsection (1) of this section, the { - Water Resources - }
department shall provide public notice of the application in the
manner the department determines to be the most appropriate.
(5) Within 60 days after the department provides public notice
under subsection (4) of this section, any person may submit
detailed, legally obtained information in writing, requesting the
department to deny the application for a permit on the basis that
the reservoir:
(a) Would result in injury to an existing water right; or
(b) Would pose a significant detrimental impact to existing
fishery resources.
(6) In accordance with rules established by the { - Water
Resources - } commission for an expedited public interest review
process for applications submitted under this section or in
response to a request under subsection (5) of this section, the
department shall conduct a public interest review of the
reservoir application. The review shall be limited to issues
pertaining to:
(a) Water availability;
(b) Potential detrimental impact to existing fishery resources;
and
(c) Potential injury to existing water rights.
(7) Within 180 days after the department receives an
application for a permit under subsection (1) of this section,
the department shall issue a final order granting or denying the
permit or granting the permit with conditions.
(8) If the department issues an order under subsection (7) of
this section denying the permit, the applicant may request a
contested case hearing, which shall be conducted in accordance
with applicable provisions of ORS chapter 183.
(9) If the department does not find injury or impact under
subsection (6) of this section and the department issues a final
order under subsection (7) of this section allowing the issuance
of a permit, the order shall be subject to judicial review of
orders in other than contested cases as provided in ORS chapter
183.
(10) Notwithstanding the requirement for a survey under ORS
537.230 (4), a survey of the appropriation is not required for a
reservoir that has a storage capacity of less than 9.2 acre-feet
of water. For a reservoir qualifying under this subsection, a
permittee shall submit to the department a claim of beneficial
use within one year after the date of completion of construction.
A claim of beneficial use for a reservoir qualifying under this
subsection shall require only a written affidavit signed by the
permittee that includes the following:
(a) The dimensions of the reservoir.
(b) The maximum capacity of the reservoir in acre-feet.
(c) A map identifying the location of the reservoir. The map
shall comply with standards established by the { - Water
Resources - } commission. The map required under this subsection
need not be prepared by a water right examiner certified under
ORS 537.798.
(11) Any person applying for a secondary permit for the use of
stored water from a reservoir qualifying under subsection (10) of
this section shall submit a survey prepared by a water right
examiner certified under ORS 537.798. The survey required under
this subsection shall apply to the storage reservoir and to the
secondary use of the water in the reservoir.
SECTION 1398. ORS 537.410 is amended to read:
537.410. (1) Whenever the owner of a permit to appropriate the
public waters of Oregon fails to commence actual construction
work within the time required by law, or having commenced
construction work as required by law, fails or neglects to
prosecute the construction work with reasonable diligence, or
fails to complete the construction work within the time required
by law, or as fixed in the permit, or within such further time as
may be allowed under ORS 537.230, or having completed
construction work, fails or neglects to apply the water to
beneficial use within the time fixed in the permit, the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + } may cancel the permit on the records in
the { - Water Resources Department - } { + Oregon Department
of Natural Resources + } as provided in ORS 537.410 to 537.450.
(2) However, permits issued by the commission to irrigation
districts for reclamation purposes under the irrigation district
laws of this state, to municipal corporations for municipal uses
or purposes or to public utilities complying with subsection (3)
of this section for an energy facility granted a site certificate
by the Energy Facility Siting Council, are not subject to
cancellation under the provisions of ORS 537.410 to 537.450.
(3) For a public utility to qualify under subsection (2) of
this section:
(a) The energy facility of the public utility must not be a
facility required to be licensed under ORS chapter 543; and
(b) The public utility must supply information every two years
that demonstrates to the satisfaction of the commission that the
conditions in the site certificate issued by the Energy Facility
Siting Council contemplate the future use of the remaining
portion of the water applied for in the original permit
application.
SECTION 1399. ORS 537.420 is amended to read:
537.420. Whenever a permit holder fails to comply with the laws
of the state and the requirements of the permit as to the
commencement of work with due diligence, completion of the work
of construction or the application of the water for a beneficial
use, and the permit is subject to cancellation as provided in ORS
537.410 to 537.450, the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } shall, not less than
30 nor more than 60 days prior to the hearing provided for in ORS
537.445, notify each person who, according to { - Water
Resources Department - } { + the + } records { + of the Oregon
Department of Natural Resources + }, is the holder of a water
right permit or certificate whose right may be injured by the
proposed cancellation. The notice shall require the holder of the
permit to appear before the commission at the time and place
designated in the notice, and show cause why the permit described
in the notice should not be canceled for the reasons therein
specified. The notice shall contain a brief statement of the
grounds for cancellation and shall be served in accordance with
ORS 183.415.
SECTION 1400. ORS 537.440 is amended to read:
537.440. If the decision of the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + }
requires the cancellation of a permit, then the commission shall
at once cancel, or have canceled, the permit. Thereafter the
permit shall be of no further force or effect, and shall not be
recognized or admitted as evidence of any right or interest in or
to the waters covered by it in any proceeding in the courts or
before other tribunals of the state. Permits having subsequent
priority shall upon such cancellation have priority in the order
of the filing of the applications upon which subsequent permits
are based, as if the canceled permit, or the application upon
which it was based, had never existed.
SECTION 1401. ORS 537.445 is amended to read:
537.445. (1) If the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } proposes to cancel a
permit or appropriation under ORS 537.410 to 537.450, opportunity
for hearing shall be accorded as provided in ORS chapter 183.
(2) If a petition for review of an order canceling a permit or
appropriation is filed under ORS 536.075, the commission shall
not cancel the permit or appropriation under ORS 537.440 until
the petitioner's right of review is exhausted and the order is
finally approved.
SECTION 1402. ORS 537.450 is amended to read:
537.450. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } may by rule provide that the
owners of permits shall submit or furnish proofs of commencement
of work, prosecution of work with due diligence, completion of
work, and of the application of water to a beneficial use under
the permits. Failure to comply with the commission's rules in
respect to the proofs shall be considered prima facie evidence of
failure to commence work, prosecute work with due diligence,
complete work, or apply water to the beneficial use contemplated
by the permit in proceedings under ORS 537.410 to 537.440 for the
cancellation of permits.
SECTION 1403. ORS 537.465 is amended to read:
537.465. (1) Any person or group of persons holding a water use
subject to transfer as defined in ORS 540.505 may submit an
application to the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } for approval of an
allocation of conserved water for a measure that:
(a) The person or group of persons intends to implement; or
(b) Was implemented by the person or group of persons within
five years prior to the submission of the application.
(2) An application submitted under subsection (1)(a) of this
section shall include:
(a) A description of the proposed measures;
(b) A description of the existing diversion facilities and an
estimate of the amount of water that can be diverted at the
facilities;
(c) The amount of water that will be needed to supply existing
rights after implementation of the conservation measures;
(d) The amount of conserved water expected from implementation
of the conservation measures;
(e) The proposed allocation and use of the conserved water if
different from the allocation specified in ORS 537.470;
(f) The intended use of any water allocated to the applicant;
(g) The applicant's choice of priority date for the conserved
water; and
(h) Any other information the commission considers necessary to
evaluate the effectiveness of the proposal.
(3) An application under subsection (1)(b) of this section
shall include:
(a) A description of the measure as implemented and the date on
which the measure was implemented;
(b) A description of the diversion facilities before the
conservation measure was implemented and the amount of water that
was diverted at the facilities before the conservation measure
was implemented;
(c) The amount of water needed to supply existing rights after
implementation of the conservation measure;
(d) The amount of water conserved by implementing the
conservation measure;
(e) The proposed allocation and use of the conserved water if
different from the allocation specified in ORS 537.470;
(f) The intended use of any water allocated to the applicant;
(g) The applicant's choice of priority date for the conserved
water;
(h) Evidence that the measure was implemented within five years
prior to the date of filing the application; and
(i) Any other information the commission considers necessary to
evaluate the application.
(4) If a person proposes conservation measures within the
boundaries of an irrigation district organized under ORS chapter
545 or a water control district organized under ORS chapter 553,
at the time the person submits the application, the person also
must submit evidence that the district has approved the
conservation application.
SECTION 1404. ORS 537.470 is amended to read:
537.470. (1) Upon receipt of an application for allocation of
conserved water under ORS 537.465, the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + }
shall give notice of receipt of the application in accordance
with ORS 540.520 (5).
(2) The commission shall allocate conserved water as provided
in subsection (3) of this section and approve modifications of
water rights as provided in subsection (6) of this section. The
commission may not allocate conserved water pursuant to an
application under ORS 537.465 if the application is filed more
than five years after the conservation measure was implemented.
(3) After determining the quantity of conserved water, if any,
required to mitigate the effects on other water rights, the
commission shall allocate 25 percent of the remaining conserved
water to the state and 75 percent to the applicant, unless the
applicant proposes a higher allocation to the state or more than
25 percent of the funds used to finance the conservation measures
comes from federal or state public sources. If more than 25
percent of the funds used to finance the conservation measures
comes from federal or state public sources and is not subject to
repayment, the commission shall allocate to the state a
percentage equal to the percentage of public funds used to
finance the conservation measures and allocate to the applicant a
percentage equal to the percentage of other funds used to finance
the conservation measures. If the commission determines that the
water allocated to the state is necessary to support in-stream
flow purposes in accordance with ORS 537.332 to 537.360, the
water shall be converted to an in-stream water right. If the
water allocated to the state is not necessary to support
in-stream flow purposes, it shall revert to the public for
appropriation by the next user in priority. In no event, however,
shall the applicant receive less than 25 percent of the remaining
conserved water unless the applicant proposes a higher allocation
to the state.
(4) The commission shall notify the applicant and any other
person requesting notice, of the action the commission intends to
take under subsection (3) of this section. Any person objecting
to the proposed allocation may file a protest requesting a
contested case hearing before the commission.
(5) The modification of water rights under an allocation of
conserved water may not require a separate request for transfer
under ORS 540.520.
(6) After the commission completes the allocation of conserved
water under subsection (3) of this section, the commission shall
issue orders for proposed new certificates covering the changes
in the original water rights. Once the conservation project is
completed, separate new certificates preserving the previously
established priority of rights shall be issued to cover the
unaffected portion of the water rights and separate new
certificates indicating the priority of rights as set forth in
ORS 537.485 shall be issued to cover the right to the use of the
allocated water.
SECTION 1405. ORS 537.480 is amended to read:
537.480. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } shall adopt rules and standards
necessary to carry out the provisions of ORS 537.455 to 537.500.
The rules may include formulas or other criteria for evaluating
the effects of allocation of water on existing rights and for
determining whether, and to what extent, mitigation shall be
required.
SECTION 1406. ORS 537.485 is amended to read:
537.485. (1) Notwithstanding any other provision of ORS chapter
536, 537, 538, 539, 540, 541, 542 or 543, the priority of any
right to the use of conserved water, including an in-stream water
right, under an application submitted and approved by the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + } under ORS 537.465 and 537.470 shall be
either the same as or one minute after the priority of the water
right held by the person implementing the conservation measures.
(2) A person who implements a conservation measure may choose
the priority of the water right for the conserved water in
accordance with subsection (1) of this section. However, the
priority date chosen must be the same for the portion of water
allocated to the applicant and the portion of water allocated to
the state.
SECTION 1407. ORS 537.525 is amended to read:
537.525. The Legislative Assembly recognizes, declares and
finds that the right to reasonable control of all water within
this state from all sources of water supply belongs to the
public, and that in order to insure the preservation of the
public welfare, safety and health it is necessary that:
(1) Provision be made for the final determination of relative
rights to appropriate ground water everywhere within this state
and of other matters with regard thereto through a system of
registration, permits and adjudication.
(2) Rights to appropriate ground water and priority thereof be
acknowledged and protected, except when, under certain
conditions, the public welfare, safety and health require
otherwise.
(3) Beneficial use without waste, within the capacity of
available sources, be the basis, measure and extent of the right
to appropriate ground water.
(4) All claims to rights to appropriate ground water be made a
matter of public record.
(5) Adequate and safe supplies of ground water for human
consumption be assured, while conserving maximum supplies of
ground water for agricultural, commercial, industrial, thermal,
recreational and other beneficial uses.
(6) The location, extent, capacity, quality and other
characteristics of particular sources of ground water be
determined.
(7) Reasonably stable ground water levels be determined and
maintained.
(8) Depletion of ground water supplies below economic levels,
impairment of natural quality of ground water by pollution and
wasteful practices in connection with ground water be prevented
or controlled within practicable limits.
(9) Whenever wasteful use of ground water, impairment of or
interference with existing rights to appropriate surface water,
declining ground water levels, alteration of ground water
temperatures that may adversely affect priorities or impair the
long-term stability of the thermal properties of the ground
water, interference among wells, thermal interference among
wells, overdrawing of ground water supplies or pollution of
ground water exists or impends, controlled use of the ground
water concerned be authorized and imposed under voluntary joint
action by the { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } and the ground water users
concerned whenever possible, but by the commission under the
police power of the state except as specified in ORS 537.796,
when such voluntary joint action is not taken or is ineffective.
(10) Location, construction, depth, capacity, yield and other
characteristics of and matters in connection with wells be
controlled in accordance with the purposes set forth in this
section.
(11) All activities in the state that affect the quality or
quantity of ground water shall be consistent with the goal set
forth in ORS 468B.155.
SECTION 1408. ORS 537.532 is amended to read:
537.532. (1) Notwithstanding any other provision of law, the
injection into aquifers of water that complies with drinking
water standards established by the Oregon Health Authority under
ORS 448.273 under an aquifer storage and recovery limited license
or permit:
(a) Shall not be considered a waste, contaminant or pollutant;
(b) Shall be exempt from the requirement to obtain a discharge
permit under ORS 468B.050 or 468B.053 or a concentration limit
variance from the Department of Environmental Quality;
(c) Shall comply with all other applicable local, state or
federal laws; and
(d) May be located within or outside an urban growth boundary
in conformance with land use laws.
(2) In order to continue to protect the high quality of
Oregon's aquifers for present and future uses, the Legislative
Assembly recognizes the need to minimize concentrations of
constituents in the injection source water that are not naturally
present in the aquifer. Each aquifer storage and recovery limited
license or permit shall include conditions to minimize, to the
extent technically feasible, practical and cost-effective, the
concentration of constituents in the injection source water that
are not naturally present in the aquifer. In no case may an
aquifer storage and recovery limited license or permit establish
concentration limits for water to be injected in excess of the
standards established by the authority under ORS 448.273 or the
maximum measurable levels established by the Environmental
Quality Commission under ORS 468B.165, whichever are more
stringent.
(3) Except as otherwise provided, if the injection source water
contains constituents regulated under ORS 448.273 or 468B.165
that are detected at greater than 50 percent of the established
levels, the aquifer storage and recovery limited license or
permit may require the permittee to employ, or continue the
employment of, technically feasible, practical and cost-effective
methods to minimize concentrations of such constituents in the
injection source water. Constituents that have a secondary
maximum contaminant level or constituents that are associated
with disinfection of the water may be injected into the aquifer
up to the standards established under ORS 448.273.
(4) The { - Water Resources Department - } { + Oregon
Department of Natural Resources + } may, based upon valid
scientific data, further limit certain constituents in the
injection source water if the department finds the constituents
will interfere with or pose a threat to the maintenance of the
water resources of the state for present or future beneficial
uses.
SECTION 1409. ORS 537.534 is amended to read:
537.534. (1) In accordance with this section, the { - Water
Resources Commission - } { + Oregon Natural Resources
Commission + } shall establish rules for the permitting and
administration of aquifer storage and recovery projects. The
rules shall establish the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + } as the sole permitting agency for the
projects, but the Department of Environmental Quality and the
Oregon Health Authority may comment on permits for a project and
recommend conditions to be included on the permit. When
necessary, the applicant also shall obtain land use and
development approval from a local government.
(2) Notwithstanding the provisions of ORS 537.130, the
{ - Water Resources - } commission shall establish by rule a
procedure to allow a person to obtain a limited license to store
and use water injected into an underground aquifer for aquifer
storage and recovery testing purposes for a short term or fixed
duration after the person complies with the notice provision set
forth in ORS 537.144. The rules shall provide a 30-day public
comment period before issuance of a limited license. The
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + } may attach conditions to the limited
license regarding monitoring, sampling and rates of recovery up
to 100 percent of the injection quantity. Aquifer storage and
recovery under a limited license may be conditioned by the
{ - Water Resources - } department to protect existing ground
water rights that rely upon the receiving aquifer and the
injection source water. The { - Water Resources - } department
may revoke or modify the limited license to use the stored water
acquired under a limited license if that use causes injury to any
other water right or to a minimum perennial streamflow. The
{ - Water Resources Director - } { + Director of the Oregon
Department of Natural Resources + } may issue a limited license
for aquifer storage and recovery purposes for a term of not more
than five years. The license may be renewed if the applicant
demonstrates further testing is necessary.
(3) To obtain a limited license for aquifer storage and
recovery, the applicant shall provide to the { - Water
Resources Department - } { + Oregon Department of Natural
Resources + }:
(a) Well construction information;
(b) Test results of the quality of the injection source water;
(c) Test results of the quality of the receiving aquifer water;
(d) The proposed injected water storage time, recovery rates
and recovery schedule;
(e) Preliminary hydrogeologic information including a
description of the aquifer, estimated flow direction and rate of
movement, allocation of surface water, springs or wells within
the area affected by aquifer storage and recovery wells;
(f) The fee established by rule by the commission pursuant to
ORS 536.050 (1)(L); and
(g) Any other information required by rule of the commission.
(4) Only after completion of a test program under a limited
license issued under subsection (3) of this section may the
applicant apply for a permanent aquifer storage and recovery
permit. Each application for an aquifer storage and recovery
permit shall be accompanied by the fee set forth in ORS 536.050
for examination of an application for a permit to store water.
The
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + } shall be the sole permitting agency for the
project and may place conditions on the permit consistent with
rules adopted by the commission, but the Department of
Environmental Quality and the Oregon Health Authority may review,
comment on and recommend conditions to be included on the permit.
When necessary, the applicant shall obtain land use and
development approval from a local government. Where existing
water rights for the injection source water have been issued, the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + } shall receive comments from interested
parties or agencies, but the public interest review standards
shall apply only to the matters raised by the aquifer storage and
recovery permit application in the same manner as any new water
right application, not to the underlying water rights. If new
water rights for injection source water and aquifer storage and
recovery are necessary, then the public interest review standards
shall apply to the new permit application in the same manner as
any new water right application. The { - Water Resources - }
director may refer policy matters to the commission for decision.
(5) The commission shall adopt rules consistent with this
section to implement an aquifer storage and recovery program. The
rules shall include:
(a) Requirements for reporting and monitoring the aquifer
storage and recovery project aquifer impacts and for constituents
reasonably expected to be found in the injection source water.
(b) Provisions that allow any person operating an aquifer
storage and recovery project under a permit, upon approval by the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + }, to recover up to 100 percent of the water
stored in the aquifer storage facility if valid scientific data
gathered during operations under the limited license or permit
demonstrate that the injected source water is not lost through
migration or other means and that ground water otherwise present
in the aquifer has not been irretrievably lost as a result of
aquifer storage or retrieval. The { - Water Resources - }
department may place such other conditions on withdrawal of
stored water necessary to protect the public health and
environment, including conditions allowing reconsideration of the
permit to comply with ORS 537.532.
(c) The procedure for allowing the Department of Environmental
Quality and the Oregon Health Authority to comment on and
recommend permit conditions.
(6) The use of water under a permit as injection source water
for an aquifer storage and recovery project up to the limits
allowed in subsection (5)(b) of this section shall not affect the
priority date of the water right permit or otherwise affect the
right evidenced by the permit.
(7) The holder of a permit for aquifer storage and recovery
shall apply for a transfer or change of use if the use of
recovered water is different from that which is allowed in the
source water permit or certificate.
SECTION 1410. ORS 537.535 is amended to read:
537.535. (1) No person or public agency shall use or attempt to
use any ground water, construct or attempt to construct any well
or other means of developing and securing ground water or operate
or permit the operation of any well owned or controlled by such
person or public agency except upon compliance with ORS 537.505
to 537.795 and 537.992 and any applicable order or rule adopted
by the { - Water Resources Commission - } { + Oregon Natural
Resources Commission + } under ORS 537.505 to 537.795 and
537.992.
(2) Except for those uses exempted under ORS 537.545, the use
of ground water for any purpose, without a permit issued under
ORS 537.625 or registration under ORS 537.605, is an unlawful
appropriation of ground water.
SECTION 1411. ORS 537.545 is amended to read:
537.545. (1) No registration, certificate of registration,
application for a permit, permit, certificate of completion or
ground water right certificate under ORS 537.505 to 537.795 and
537.992 is required for the use of ground water for:
(a) Stockwatering purposes;
(b) Watering any lawn or noncommercial garden not exceeding
one-half acre in area;
(c) Watering the lawns, grounds and fields not exceeding 10
acres in area of schools located within a critical ground water
area established pursuant to ORS 537.730 to 537.740;
(d) Single or group domestic purposes in an amount not
exceeding 15,000 gallons a day;
(e) Down-hole heat exchange purposes;
(f) Any single industrial or commercial purpose in an amount
not exceeding 5,000 gallons a day; or
(g) Land application, so long as the ground water:
(A) Has first been appropriated and used under a permit or
certificate issued under ORS 537.625 or 537.630 for a water right
issued for industrial purposes or a water right authorizing use
of water for confined animal feeding purposes;
(B) Is reused for irrigation purposes and the period of
irrigation is a period during which the reused water has never
been discharged to the waters of the state; and
(C) Is applied pursuant to a permit issued by the Department of
Environmental Quality or the State Department of Agriculture
under either ORS 468B.050 to construct and operate a disposal
system or ORS 468B.215 to operate a confined animal feeding
operation.
(2) A ground water use for a purpose that is exempt under
subsection (1) of this section, to the extent that the use is
beneficial, constitutes a right to appropriate ground water equal
to that established by a ground water right certificate issued
under ORS 537.700.
(3) Except for the use of water under subsection (1)(g) of this
section, the { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } by rule may require any person
or public agency using ground water for any such purpose to
furnish information with regard to such ground water and the use
thereof. For a use of water described in subsection (1)(g) of
this section, the Department of Environmental Quality or the
State Department of Agriculture shall provide to the { - Water
Resources Department - } { + Oregon Department of Natural
Resources + } a copy of the permit issued under ORS 468B.050 or
468B.215 authorizing the land application of ground water for
reuse. The permit shall provide the information regarding the
place of use of such water and the nature of the beneficial
reuse.
(4) If it is necessary for the { - Water Resources
Department - } { + Oregon Department of Natural Resources + } to
regulate the use or distribution of ground water, including uses
for purposes that are exempt under subsection (1) of this
section, the department shall use as a priority date for the
exempt uses the date indicated in the log for the well filed with
the department under ORS 537.765 or other documentation provided
by the well owner showing when water use began.
(5) The owner of land on which a well is drilled to allow
ground water use for a purpose that is exempt under subsection
(1) of this section shall provide the { - Water Resources
Department - } { + Oregon Department of Natural Resources + }
with a map showing the exact location of the well on the tax lot.
The landowner shall provide a map required by this subsection to
the department no later than 30 days after the well is completed.
The map must be prepared in accordance with standards established
by the department.
(6) The owner of land on which a well described in subsection
(5) of this section is located shall file the exempt ground water
use with the { - Water Resources Department - } { + Oregon
Department of Natural Resources + } for recording. The filing
must be accompanied by the fee described in subsection (7) of
this section. The filing must be received by the department no
later than 30 days after the well is completed.
(7) The { - Water Resources Department - } { + Oregon
Department of Natural Resources + } shall collect a fee of $300
for recording an exempt ground water use under subsection (6) of
this section. Moneys from fees collected under this subsection
shall be deposited to the credit of the { - Water Resources
Department Water Right Operating Fund - } { + Oregon Natural
Resources Fund + }. Notwithstanding ORS 536.009, moneys
deposited to the fund under this subsection shall be used for the
purposes of evaluating ground water supplies, conducting ground
water studies, carrying out ground water monitoring, processing
ground water data and the administration and enforcement of this
subsection and subsections (3), (5), (6) and (8) of this section.
(8) The { - Water Resources - } commission shall adopt rules
to implement, administer and enforce subsections (5) to (7) of
this section.
SECTION 1412. ORS 537.595 is amended to read:
537.595. Except as otherwise provided in ORS 537.545 or 537.575
or 537.585 and subject to determination under ORS 537.670 to
537.695, when any person or public agency on August 3, 1955, is
lawfully engaged in good faith in such construction, alteration
or extension of a well for the application of ground water to
beneficial use, the right to appropriate such ground water, upon
completion of such construction, alteration or extension and
application of the ground water to beneficial use within a
reasonable time fixed by the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + }, when registered
under ORS 537.605 and 537.610, is recognized to the extent of the
beneficial use of the ground water.
SECTION 1413. ORS 537.605 is amended to read:
537.605. (1) Any person or public agency claiming any right to
appropriate ground water under ORS 537.585 or 537.595, except for
any purpose exempt under ORS 537.545, is entitled to receive from
the { - Water Resources Commission - } { + Oregon Natural
Resources Commission + } within three years after August 3, 1955,
a certificate of registration as evidence of a right to
appropriate ground water as provided in ORS 537.585 or 537.595.
Failure of such person or public agency to file a registration
statement within such period creates a presumption that any such
claim has been abandoned.
(2) Upon receipt of a request for registration by any person or
public agency referred to in subsection (1) of this section
within the period specified, the commission shall provide such
person or public agency with a separate registration statement
for each well, which shall be completed and returned to the
commission.
(3) Each registration statement shall be in a form prescribed
by the commission, shall be under oath and shall contain:
(a) The name and post-office address of the registrant.
(b) The nature of the use by the registrant of the ground water
upon which the claim of the registrant is based.
(c) The dates when the ground water was or will be first
applied to beneficial use and the dates when construction of the
well was begun and completed.
(d) The amount of ground water claimed.
(e) If the ground water is used or is to be used for irrigation
purposes, a description of the lands irrigated or to be
irrigated, giving the number of acres irrigated or to be
irrigated in each 40-acre legal subdivision, the dates of
reclamation of each such legal subdivision and the date when the
ground water was or will be completely applied.
(f) The depth to the water table.
(g) The location of the well with reference to government
survey corners or monuments or corners of recorded plats.
(h) The depth, diameter and type of the well, and the kind and
amount of the casing.
(i) The capacity of the well and well pump in gallons per
minute, and the horsepower of the well pump motor.
(j) If the ground water is artesian or other ground water not
requiring pumping, the rate of flow in gallons in such manner as
the commission may prescribe.
(k) The amount of ground water pumped or otherwise taken from
the well each year.
(L) A copy of the log of the completed well, if such log is
available.
(m) If the ground water supply is supplemental to an existing
water supply, identification of any application for a permit,
permit, certification or adjudicated right to appropriate water
made or held by the registrant.
(n) Such other information as the commission considers
necessary.
(4) Each registration statement shall be accompanied by maps,
drawings and other data as the commission considers necessary.
(5) The commission may require that any registration statement
be supplemented after any well is fully completed by a statement
containing such additional information as the commission
considers necessary.
(6) Any person or public agency who failed to file a
registration statement within the period set forth in subsection
(1) of this section may file within one year after May 29, 1961,
a petition with the commission requesting that the person be
given an opportunity to rebut the presumption that the person has
abandoned the claim. Upon the filing of such a petition the
commission may schedule a hearing to take testimony and evidence
on the date of well construction and the use of ground water or
the commission may accept sworn statements in writing in support
of such petition. No petition shall be denied without a public
hearing. If it appears after hearing or from such sworn
statements, that the person or public agency has a use of ground
water that would be subject to determination under ORS 537.670 to
537.695 as defined in ORS 537.585 and 537.595, the commission
shall issue an order authorizing the petitioner to file a
registration statement as described under subsection (3) of this
section. Upon receipt of the completed registration statement the
commission shall issue to the registrant a certificate of
registration, as provided in ORS 537.610.
SECTION 1414. ORS 537.610 is amended to read:
537.610. (1) The { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } shall accept all
registration statements referred to in ORS 537.605 completed and
returned to the commission in proper form, endorse on the
registration statement the date of the return and record each
statement. Upon recording the statement, the commission shall
issue to the registrant a certificate as evidence that the
registration is completed.
(2) The issuance of the certificate of registration serves as
prima facie evidence that the registrant is entitled to a right
to appropriate ground water and apply it to beneficial use to the
extent and in the manner disclosed in the recorded registration
statement and in the certificate of registration.
(3) A certificate of registration issued under this section may
not be construed as a final determination of any matter stated in
the certificate of registration. The right of the registrant to
appropriate ground water under a certificate of registration is
subject to determination under ORS 537.670 to 537.695, and is not
final or conclusive until so determined and a ground water right
certificate issued. A right to appropriate ground water under a
certificate of registration has a tentative priority from the
date when the construction of the well was begun.
(4) The commission shall adopt by rule the process and
standards by which the commission will recognize changes in the
place of use, type of use or point of appropriation for claims to
appropriate ground water registered under this section. The
commission shall adopt fees not to exceed $1,125 for actions
taken to modify a certificate of registration.
SECTION 1415. ORS 537.610, as amended by section 15, chapter
819, Oregon Laws 2009, is amended to read:
537.610. (1) The { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } shall accept all
registration statements referred to in ORS 537.605 completed and
returned to the commission in proper form, endorse on the
registration statement the date of the return and record each
statement. Upon recording the statement, the commission shall
issue to the registrant a certificate as evidence that the
registration is completed.
(2) The issuance of the certificate of registration serves as
prima facie evidence that the registrant is entitled to a right
to appropriate ground water and apply it to beneficial use to the
extent and in the manner disclosed in the recorded registration
statement and in the certificate of registration.
(3) A certificate of registration issued under this section may
not be construed as a final determination of any matter stated in
the certificate of registration. The right of the registrant to
appropriate ground water under a certificate of registration is
subject to determination under ORS 537.670 to 537.695, and is not
final or conclusive until so determined and a ground water right
certificate issued. A right to appropriate ground water under a
certificate of registration has a tentative priority from the
date when the construction of the well was begun.
(4) The commission shall adopt by rule the process and
standards by which the commission will recognize changes in the
place of use, type of use or point of appropriation for claims to
appropriate ground water registered under this section. The
commission shall adopt fees not to exceed $500 for actions taken
to modify a certificate of registration.
SECTION 1416. ORS 537.615 is amended to read:
537.615. (1) Any person or public agency intending to acquire a
wholly new right to appropriate ground water or to enlarge upon
any existing right to appropriate ground water, except for any
purpose exempt under ORS 537.545, shall apply to the { - Water
Resources Department - } { + Oregon Department of Natural
Resources + } for and be issued a permit before withdrawing or
using the ground water.
(2) The application for a permit shall be in a form prescribed
by the department and shall contain:
(a) The name and post-office address of the applicant.
(b) The nature of the use by the applicant of the ground water
for which the application is made.
(c) The dates of the beginning and completion of the
construction of any well or other means of developing and
securing the ground water.
(d) The date when the ground water will be completely applied
to the proposed beneficial use.
(e) The amount of ground water claimed.
(f) If the ground water is to be used for irrigation purposes,
a description of the lands to be irrigated, giving the number of
acres to be irrigated in each 40-acre legal subdivision.
(g) The depth to the water table, if known.
(h) The location of each well with reference to government
survey corners or monuments or corners of recorded plats.
(i) The proposed depth, diameter and type of each well, and the
kind and amount of the casing.
(j) The estimated capacity of each well and each well pump in
gallons per minute, and the horsepower of each well pump motor.
(k) If the ground water is artesian or other ground water not
requiring pumping, the rate of flow in gallons in such manner as
the { - Water Resources Commission - } { + Oregon Natural
Resources Commission + } may prescribe.
(L) If the ground water supply is supplemental to an existing
water supply, identification of any application for a permit,
permit, certificate or adjudicated right to appropriate water
made or held by the applicant.
(m) Any other information as the department considers necessary
to evaluate the application.
(3) Each application for a permit shall be accompanied by any
maps and drawings the department considers necessary.
(4) The map or drawing required to accompany the application
shall be of sufficient quality and scale to establish the
location of the proposed point of diversion and the proposed
place of use identified by tax lot, township, range, section and
nearest quarter-quarter section along with a notation of the
acreage of the proposed place of use, if appropriate. In
addition, the department shall accept locational coordinate
information, including latitude and longitude as established by a
global positioning system. If the application is for a water
right for a municipal use, the map need not identify the proposed
place of use by tax lot.
(5) Each application for a permit to appropriate water shall be
accompanied by the examination fee set forth in ORS 536.050 (1).
(6) If the proposed use of the water is for the operation of a
chemical process mine as defined in ORS 517.953, the applicant
shall provide the information required under this section as part
of the consolidated application under ORS 517.952 to 517.989.
(7) Notwithstanding any provision of ORS chapter 183, an
application for a permit to appropriate ground water shall be
processed in the manner set forth in ORS 537.505 to 537.795.
Nothing in ORS chapter 183 shall be construed to allow additional
persons to participate in the process. To the extent that any
provision in ORS chapter 183 conflicts with a provision set forth
in ORS 537.505 to 537.795, the provisions in ORS 537.505 to
537.795 shall control.
SECTION 1417. ORS 537.620 is amended to read:
537.620. (1) The { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } shall accept all
applications for permits submitted under ORS 537.615 in proper
form.
(2) Within 15 days after receiving the application, the
department shall determine whether the application contains the
information listed under ORS 537.615 (2) and is complete and not
defective, including the payment of all fees required under ORS
537.615 (5). If the department determines that the application is
incomplete or defective or that not all fees have been paid, the
department shall return the fees paid and the application to the
applicant to remedy the defect. If an application is complete and
not defective, the department shall indorse on the application
the date upon which the application was received at the
department, which shall be the priority date for any water right
issued in response to the application.
(3) Upon determining that an application is complete and not
defective, the department shall determine whether the proposed
use is prohibited by statute. If the proposed use is prohibited
by statute, the department shall reject the application and
return all fees to the applicant with an explanation of the
statutory prohibition.
(4) If the proposed use is not prohibited by statute, the
department shall undertake an initial review of the application
and make a preliminary determination of:
(a) Whether the proposed use is restricted or limited by
statute or rule or because the proposed use is located within a
designated critical ground water area;
(b) The extent to which water is available from the proposed
source during the times and in the amounts requested; and
(c) Any other issue the department identifies as a result of
the initial review that may preclude approval of or restrict the
proposed use.
(5) Upon completion of the initial review and no later than 30
days after determining an application to be complete and not
defective as described in subsection (2) of this section, the
department shall notify the applicant of its preliminary
determinations and allow the applicant 14 days from the date of
mailing within which to notify the department to stop processing
the application or to proceed with the application. If the
applicant notifies the department to stop processing the
application, the department shall return the application and all
fees paid in excess of $200. If the department receives no timely
response from the applicant, the department shall proceed with
the application.
(6) Within seven days after proceeding with the application
under subsection (5) of this section, the department shall give
public notice of the application in the weekly notice published
by the department. The notice shall include a request for
comments on the application and information pertaining to how an
interested person may obtain future notices about the application
and a copy of the proposed final order.
(7) Within 30 days after the public notice under subsection (6)
of this section, any person interested in the application shall
submit written comments to the department. Any person who asks to
receive a copy of the department's proposed final order shall
submit to the department the fee required under ORS 536.050
(1)(p).
SECTION 1418. ORS 537.620, as amended by section 16, chapter
819, Oregon Laws 2009, is amended to read:
537.620. (1) The { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } shall accept all
applications for permits submitted under ORS 537.615 in proper
form.
(2) Within 15 days after receiving the application, the
department shall determine whether the application contains the
information listed under ORS 537.615 (2) and is complete and not
defective, including the payment of all fees required under ORS
537.615 (5). If the department determines that the application is
incomplete or defective or that not all fees have been paid, the
department shall return the fees paid and the application to the
applicant to remedy the defect. If an application is complete and
not defective, the department shall indorse on the application
the date upon which the application was received at the
department, which shall be the priority date for any water right
issued in response to the application.
(3) Upon determining that an application is complete and not
defective, the department shall determine whether the proposed
use is prohibited by statute. If the proposed use is prohibited
by statute, the department shall reject the application and
return all fees to the applicant with an explanation of the
statutory prohibition.
(4) If the proposed use is not prohibited by statute, the
department shall undertake an initial review of the application
and make a preliminary determination of:
(a) Whether the proposed use is restricted or limited by
statute or rule or because the proposed use is located within a
designated critical ground water area;
(b) The extent to which water is available from the proposed
source during the times and in the amounts requested; and
(c) Any other issue the department identifies as a result of
the initial review that may preclude approval of or restrict the
proposed use.
(5) Upon completion of the initial review and no later than 30
days after determining an application to be complete and not
defective as described in subsection (2) of this section, the
department shall notify the applicant of its preliminary
determinations and allow the applicant 14 days from the date of
mailing within which to notify the department to stop processing
the application or to proceed with the application. If the
applicant notifies the department to stop processing the
application, the department shall return the application and all
fees paid in excess of $150. If the department receives no timely
response from the applicant, the department shall proceed with
the application.
(6) Within seven days after proceeding with the application
under subsection (5) of this section, the department shall give
public notice of the application in the weekly notice published
by the department. The notice shall include a request for
comments on the application and information pertaining to how an
interested person may obtain future notices about the application
and a copy of the proposed final order.
(7) Within 30 days after the public notice under subsection (6)
of this section, any person interested in the application shall
submit written comments to the department. Any person who asks to
receive a copy of the department's proposed final order shall
submit to the department the fee required under ORS 536.050
(1)(p).
SECTION 1419. ORS 537.621 is amended to read:
537.621. (1) Within 60 days after the { - Water Resources
Department - } { + Oregon Department of Natural Resources + }
proceeds with the application under ORS 537.620 (5), the
department shall complete application review and issue a proposed
final order approving or denying the application or approving the
application with modifications or conditions. The department may
request the applicant to provide additional information needed to
complete the review. If the department requests additional
information, the request shall be specific and shall be sent to
the applicant by registered mail. The department shall specify a
date by which the information must be returned, which shall be
not less than 10 days after the department mails the request to
the applicant. If the department does not receive the information
or a request for a time extension under ORS 537.627 by the date
specified in the request, the department may reject the
application and may refund fees in accordance with ORS 536.050
(4)(a). The time period specified by the department in a request
for additional information shall allow the department to comply
with the 60-day time limit established by this subsection.
(2) In reviewing the application under subsection (1) of this
section, the department shall determine whether the proposed use
will ensure the preservation of the public welfare, safety and
health as described in ORS 537.525. The department shall presume
that a proposed use will ensure the preservation of the public
welfare, safety and health if the proposed use is allowed in the
applicable basin program established pursuant to ORS 536.300 and
536.340 or given a preference under ORS 536.310 (12), if water is
available, if the proposed use will not injure other water rights
and if the proposed use complies with rules of the { - Water
Resources Commission - } { + Oregon Natural Resources
Commission + }. This shall be a rebuttable presumption and may be
overcome by a preponderance of evidence that either:
(a) One or more of the criteria for establishing the
presumption are not satisfied; or
(b) The proposed use would not ensure the preservation of the
public welfare, safety and health as demonstrated in comments, in
a protest under subsection (7) of this section or in a finding of
the department that shows:
(A) The specific aspect of the public welfare, safety and
health under ORS 537.525 that would be impaired or detrimentally
affected; and
(B) Specifically how the identified aspect of the public
welfare, safety and health under ORS 537.525 would be impaired or
be adversely affected.
(3) The proposed final order shall cite findings of fact and
conclusions of law and shall include but need not be limited to:
(a) Confirmation or modification of the preliminary
determinations made in the initial review;
(b) A brief statement that explains the criteria considered
relevant to the decision, including the applicable basin program
and the compatibility of the proposed use with applicable land
use plans;
(c) An assessment of water availability and the amount of water
necessary for the proposed use;
(d) An assessment of whether the proposed use would result in
injury to existing water rights;
(e) An assessment of whether the proposed use would ensure the
preservation of the public welfare, safety and health as
described in ORS 537.525;
(f) A draft permit, including any proposed conditions, or a
recommendation to deny the application;
(g) Whether the rebuttable presumption under subsection (2) of
this section has been established;
(h) The date by which protests to the proposed final order must
be received by the department; and
(i) The flow rate and duty of water allowed.
(4) In establishing the flow rate and duty of water allowed,
the department may consider a general basin-wide standard, but
first shall evaluate information submitted by the applicant to
demonstrate the need for a flow rate and duty higher than the
general standard. If the applicant provides such information, the
department shall authorize the requested rate and duty except
upon specific findings related to the application to support a
determination that a lesser amount is needed. If the applicant
does not provide information to demonstrate the need for a flow
rate and duty higher than the general basin-wide standard, the
department may apply the general standards without specific
findings related to the application.
(5) The department shall mail copies of the proposed final
order to the applicant and to persons who have requested copies
and paid the fee required under ORS 536.050 (1)(p). The
department also shall publish notice of the proposed final order
by publication in the weekly notice published by the department.
(6) Any person who supports a proposed final order may request
standing for purposes of participating in any contested case
proceeding on the proposed final order or for judicial review of
a final order. A request for standing shall be in writing and
shall be accompanied by the fee established under ORS 536.050
(1)(n).
(7) Any person may submit a protest against a proposed final
order. A protest shall be in writing and shall include:
(a) The name, address and telephone number of the protestant;
(b) A description of the protestant's interest in the proposed
final order, and if the protestant claims to represent the public
interest, a precise statement of the public interest represented;
(c) A detailed description of how the action proposed in the
proposed final order would impair or be detrimental to the
protestant's interest;
(d) A detailed description of how the proposed final order is
in error or deficient and how to correct the alleged error or
deficiency;
(e) Any citation of legal authority supporting the protest, if
known; and
(f) The protest fee required under ORS 536.050.
(8) Requests for standing and protests on the proposed final
order shall be submitted within 45 days after publication of the
notice of the proposed final order in the weekly notice published
by the department. Any person who asks to receive a copy of the
department's final order shall submit to the department the fee
required under ORS 536.050 (1)(p), unless the person has
previously requested copies and paid the required fee under ORS
537.620 (7), the person is a protestant and has paid the fee
required under ORS 536.050 (1)(j) or the person has standing and
has paid the fee under ORS 536.050 (1)(n).
(9) Within 60 days after the close of the period for receiving
protests, the { - Water Resources Director - } { + Director
of the Oregon Department of Natural Resources + } shall:
(a) Issue a final order as provided under ORS 537.625 (1); or
(b) Schedule a contested case hearing if a protest has been
submitted and if:
(A) Upon review of the issues, the director finds that there
are significant disputes related to the proposed use of water; or
(B) Within 30 days after the close of the period for submitting
protests, the applicant requests a contested case hearing.
SECTION 1420. ORS 537.621, as amended by section 17, chapter
819, Oregon Laws 2009, is amended to read:
537.621. (1) Within 60 days after the { - Water Resources
Department - } { + Oregon Department of Natural Resources + }
proceeds with the application under ORS 537.620 (5), the
department shall complete application review and issue a proposed
final order approving or denying the application or approving the
application with modifications or conditions. The department may
request the applicant to provide additional information needed to
complete the review. If the department requests additional
information, the request shall be specific and shall be sent to
the applicant by registered mail. The department shall specify a
date by which the information must be returned, which shall be
not less than 10 days after the department mails the request to
the applicant. If the department does not receive the information
or a request for a time extension under ORS 537.627 by the date
specified in the request, the department may reject the
application and may refund fees in accordance with ORS 536.050
(3)(a). The time period specified by the department in a request
for additional information shall allow the department to comply
with the 60-day time limit established by this subsection.
(2) In reviewing the application under subsection (1) of this
section, the department shall determine whether the proposed use
will ensure the preservation of the public welfare, safety and
health as described in ORS 537.525. The department shall presume
that a proposed use will ensure the preservation of the public
welfare, safety and health if the proposed use is allowed in the
applicable basin program established pursuant to ORS 536.300 and
536.340 or given a preference under ORS 536.310 (12), if water is
available, if the proposed use will not injure other water rights
and if the proposed use complies with rules of the { - Water
Resources Commission - } { + Oregon Natural Resources
Commission + }. This shall be a rebuttable presumption and may be
overcome by a preponderance of evidence that either:
(a) One or more of the criteria for establishing the
presumption are not satisfied; or
(b) The proposed use would not ensure the preservation of the
public welfare, safety and health as demonstrated in comments, in
a protest under subsection (7) of this section or in a finding of
the department that shows:
(A) The specific aspect of the public welfare, safety and
health under ORS 537.525 that would be impaired or detrimentally
affected; and
(B) Specifically how the identified aspect of the public
welfare, safety and health under ORS 537.525 would be impaired or
be adversely affected.
(3) The proposed final order shall cite findings of fact and
conclusions of law and shall include but need not be limited to:
(a) Confirmation or modification of the preliminary
determinations made in the initial review;
(b) A brief statement that explains the criteria considered
relevant to the decision, including the applicable basin program
and the compatibility of the proposed use with applicable land
use plans;
(c) An assessment of water availability and the amount of water
necessary for the proposed use;
(d) An assessment of whether the proposed use would result in
injury to existing water rights;
(e) An assessment of whether the proposed use would ensure the
preservation of the public welfare, safety and health as
described in ORS 537.525;
(f) A draft permit, including any proposed conditions, or a
recommendation to deny the application;
(g) Whether the rebuttable presumption under subsection (2) of
this section has been established;
(h) The date by which protests to the proposed final order must
be received by the department; and
(i) The flow rate and duty of water allowed.
(4) In establishing the flow rate and duty of water allowed,
the department may consider a general basin-wide standard, but
first shall evaluate information submitted by the applicant to
demonstrate the need for a flow rate and duty higher than the
general standard. If the applicant provides such information, the
department shall authorize the requested rate and duty except
upon specific findings related to the application to support a
determination that a lesser amount is needed. If the applicant
does not provide information to demonstrate the need for a flow
rate and duty higher than the general basin-wide standard, the
department may apply the general standards without specific
findings related to the application.
(5) The department shall mail copies of the proposed final
order to the applicant and to persons who have requested copies
and paid the fee required under ORS 536.050 (1)(p). The
department also shall publish notice of the proposed final order
by publication in the weekly notice published by the department.
(6) Any person who supports a proposed final order may request
standing for purposes of participating in any contested case
proceeding on the proposed final order or for judicial review of
a final order. A request for standing shall be in writing and
shall be accompanied by the fee established under ORS 536.050
(1)(n).
(7) Any person may submit a protest against a proposed final
order. A protest shall be in writing and shall include:
(a) The name, address and telephone number of the protestant;
(b) A description of the protestant's interest in the proposed
final order, and if the protestant claims to represent the public
interest, a precise statement of the public interest represented;
(c) A detailed description of how the action proposed in the
proposed final order would impair or be detrimental to the
protestant's interest;
(d) A detailed description of how the proposed final order is
in error or deficient and how to correct the alleged error or
deficiency;
(e) Any citation of legal authority supporting the protest, if
known; and
(f) For persons other than the applicant, the protest fee
required under ORS 536.050.
(8) Requests for standing and protests on the proposed final
order shall be submitted within 45 days after publication of the
notice of the proposed final order in the weekly notice published
by the department. Any person who asks to receive a copy of the
department's final order shall submit to the department the fee
required under ORS 536.050 (1)(p), unless the person has
previously requested copies and paid the required fee under ORS
537.620 (7), the person is a protestant and has paid the fee
required under ORS 536.050 (1)(j) or the person has standing and
has paid the fee under ORS 536.050 (1)(n).
(9) Within 60 days after the close of the period for receiving
protests, the { - Water Resources Director - } { + Director
of the Oregon Department of Natural Resources + } shall:
(a) Issue a final order as provided under ORS 537.625 (1); or
(b) Schedule a contested case hearing if a protest has been
submitted and if:
(A) Upon review of the issues, the director finds that there
are significant disputes related to the proposed use of water; or
(B) Within 30 days after the close of the period for submitting
protests, the applicant requests a contested case hearing.
SECTION 1421. ORS 537.622 is amended to read:
537.622. (1) Within 45 days after the { - Water Resources
Director - } { + Director of the Oregon Department of Natural
Resources + } schedules a contested case hearing under ORS
537.621 (9), the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + } shall hold the contested case hearing. The
issues to be considered in the contested case hearing shall be
limited to issues identified by the administrative law judge.
(2) Notwithstanding the provisions of ORS chapter 183
pertaining to contested case proceedings, the parties to any
contested case hearing initiated under this section shall be
limited to:
(a) The applicant;
(b) Any person who timely filed a protest; and
(c) Any person who timely filed a request for standing under
ORS 537.621 (6) and who requests to intervene in the contested
case hearing prior to the start of the proceeding.
(3) The contested case proceeding shall be conducted in
accordance with the applicable provisions of ORS chapter 183
except:
(a) As provided in subsections (1) and (2) of this section; and
(b) An interlocutory appeal under ORS 183.480 (3) shall not be
allowed.
(4) Each person submitting a protest or a request for standing
shall raise all reasonably ascertainable issues and submit all
reasonably available arguments supporting the person's position
by the close of the protest period. Failure to raise a reasonably
ascertainable issue in a protest or in a hearing or failure to
provide sufficient specificity to afford the { - Water
Resources - } department an opportunity to respond to the issue
precludes judicial review based on that issue.
SECTION 1422. ORS 537.625 is amended to read:
537.625. (1) If, after the contested case hearing or, if a
hearing is not held, after the close of the period allowed to
file a protest, the { - Water Resources Director - }
{ + Director of the Oregon Department of Natural Resources + }
determines that the proposed use does not ensure the preservation
of the public welfare, safety and health as described in ORS
537.525, the director shall issue a final order rejecting the
application or modifying the proposed final order as necessary to
ensure the preservation of the public welfare, safety and health
as described in ORS 537.525. If, after the contested case hearing
or, if a hearing is not held, after the close of the period
allowed to file a protest, the director determines that the
proposed use would ensure the preservation of the public welfare,
safety and health as described in ORS 537.525, the director shall
issue a final order approving the application or otherwise
modifying the proposed final order. A final order may set forth
any of the provisions or restrictions to be included in the
permit concerning the use, control and management of the water to
be appropriated for the project.
(2) If a contested case hearing is not held:
(a) Where the final order modifies the proposed final order,
the applicant may request and the { - Water Resources
Department - } { + Oregon Department of Natural Resources + }
shall schedule a contested case hearing as provided under ORS
537.622 (3) by submitting the information required for a protest
under ORS 537.621 (7) within 14 days after the director issues
the final order. However, the issues on which a contested case
hearing may be requested and conducted under this paragraph shall
be limited to issues based on the modifications to the proposed
final order.
(b) Only the applicant or a protestant may appeal the
provisions of the final order in the manner established in ORS
chapter 183 for appeal of order other than contested cases.
(3) If the presumption of public welfare, safety and health
under ORS 537.621 (2) is overcome, then before issuing a final
order, the director or the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + }, if applicable,
shall make the final determination of whether the proposed use or
the proposed use as modified in the proposed final order would
preserve the public welfare, safety and health as described in
ORS 537.525 by considering:
(a) The conservation of the highest use of the water for all
purposes, including irrigation, domestic use, municipal water
supply, power development, public recreation, protection of
commercial and game fishing and wildlife, fire protection,
mining, industrial purposes, navigation, scenic attraction or any
other beneficial use to which the water may be applied for which
it may have a special value to the public.
(b) The maximum economic development of the waters involved.
(c) The control of the waters of this state for all beneficial
purposes, including drainage, sanitation and flood control.
(d) The amount of waters available for appropriation for
beneficial use.
(e) The prevention of wasteful, uneconomic, impracticable or
unreasonable use of the waters involved.
(f) All vested and inchoate rights to the waters of this state
or to the use of the waters of this state, and the means
necessary to protect such rights.
(g) The state water resources policy.
(4) Upon issuing a final order, the { - Water Resources - }
department shall notify the applicant and each person who
submitted written comments or protests or otherwise requested
notice of the final order and send a copy of the final order to
any person who requested a copy and paid the fee required under
ORS 536.050 (1)(p).
(5) A right to appropriate ground water under a permit has a
priority from the date when the application was filed with the
department.
(6) If the use of water under the permit is for operation of a
chemical process mine as defined in ORS 517.952:
(a) Review of the application and approval or denial of the
application shall be coordinated with the consolidated
application process under ORS 517.952 to 517.989. However, such
review and approval or denial shall take into consideration all
policy considerations for the appropriation of water as set forth
in this chapter and ORS chapter 536.
(b) The permit may be issued for exploration under ORS 517.702
to 517.740, but the permit shall be conditioned on the
applicant's compliance with the consolidated application process.
(c) The permit shall include a condition that additional
conditions may be added to the use of water when a water right
certificate is issued, or when the use of water is changed
pursuant to ORS 540.520 and 540.530 to use for a chemical process
mine operation.
SECTION 1423. ORS 537.626 is amended to read:
537.626. (1) Within 20 days after the { - Water Resources
Director - } { + Director of the Oregon Department of Natural
Resources + } issues a final order under ORS 537.625 after the
conclusion of a contested case hearing, any party may file with
the { - Water Resources Commission - } { + Oregon Natural
Resources Commission + } exceptions to the order.
(2) The commission shall issue a modified order, if allowed, or
deny the exceptions within 60 days after close of the exception
period under subsection (1) of this section.
SECTION 1424. ORS 537.627 is amended to read:
537.627. (1) Except as provided in subsection (2) of this
section, the { - Water Resources Department - } { + Oregon
Department of Natural Resources + } shall issue a final order or
schedule a contested case hearing on an application for a water
right referred to in ORS 537.615 within 180 days after the
department proceeds with the application under ORS 537.620 (5).
(2) At the request of the applicant, the department may extend
the 180-day period set forth in subsection (1) of this section
for a reasonable period of time.
(3) If the applicant does not request an extension under
subsection (2) of this section and the department fails to issue
a proposed final order or schedule a contested case hearing on an
application for a water right within 180 days after the
department proceeds with the application under ORS 537.620 (5),
the applicant may apply in the Circuit Court for Marion County
for a writ of mandamus to compel the department to issue a final
order or schedule a contested case hearing on an application for
a water right. The writ of mandamus shall compel the department
to issue a water right permit, unless the department shows by
affidavit that to issue a permit may result in harm to an
existing water right holder.
SECTION 1425. ORS 537.628 is amended to read:
537.628. (1) The { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } may approve an
application for less ground water than applied for or upon terms,
conditions and limitations necessary for the protection of the
public welfare, safety and health. In any event the department
shall not approve the application for more ground water than is
applied for or than can be applied to a beneficial use. No
application shall be approved when the same will deprive those
having prior rights of appropriation for a beneficial use of the
amount of water to which they are lawfully entitled.
(2) If a contested case hearing is held, the department shall
issue a final order:
(a) Within 270 days after scheduling the hearing for a
contested case proceeding that involves three or more parties not
including the department; and
(b) Within 180 days after scheduling the hearing for all other
contested case proceedings.
SECTION 1426. ORS 537.629 is amended to read:
537.629. (1) When an application discloses the probability of
wasteful use or undue interference with existing wells or that
any proposed use or well will impair or substantially interfere
with existing rights to appropriate surface water by others, or
that any proposed use or well will impair or substantially
interfere with existing rights to appropriate ground water for
the beneficial use of the water for its thermal characteristics,
the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + } may impose conditions or limitations in the
permit to prevent the same or reject the same after hearing, or,
in the department's discretion, request the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + } to
initiate a rulemaking proceeding to declare the affected area a
critical ground water area under ORS 537.730 to 537.740.
(2)(a) When an application discloses the probability that a
proposed use or well will impair or interfere with the ability to
extract heat from a well with a bottom hole temperature of at
least 250 degrees Fahrenheit, the department may:
(A) Approve the permit;
(B) Impose conditions or limitations in the permit to prevent
the probable interference or impairment;
(C) After a hearing under ORS 537.622, reject the application;
or
(D) Request the commission to initiate a rulemaking proceeding
to declare the affected area a critical ground water area under
ORS 537.730 to 537.740.
(b) In deciding whether to issue, deny or condition a permit
under this subsection, the department shall consider any orders
or permits applicable to the ground water reservoir issued by the
{ - State Geologist or the governing board of the State
Department of Geology and Mineral Industries - } { + Director
of the Oregon Department of Natural Resources or the
department + } under ORS chapter 522.
SECTION 1427. ORS 537.630 is amended to read:
537.630. (1) Except for the holder of a permit for municipal
use, the holder of a permit issued pursuant to ORS 537.625 shall
prosecute the construction of a well or other means of developing
and securing the ground water with reasonable diligence and
complete the construction within a reasonable time fixed in the
permit by the { - Water Resources Department - } { + Oregon
Department of Natural Resources + }, not to exceed five years
after the date of approval of the application. However, the
department, for good cause shown, shall order and allow an
extension of time, including an extension beyond the five-year
period, for the completion of the well or other means of
developing and securing the ground water or for complete
application of water to beneficial use. In determining the
extension, the department shall give due weight to the
considerations described under ORS 539.010 (5) and to whether
other governmental requirements relating to the project have
significantly delayed completion of construction or perfection of
the right.
(2) The holder of a permit for municipal use shall commence and
complete the construction of any proposed works within 20 years
from the date on which the permit for municipal use is issued
under ORS 537.625. The construction must proceed with reasonable
diligence and be completed within the time specified in the
permit, not to exceed 20 years. However, the department may order
and allow an extension of time to complete construction or to
perfect a water right beyond the time specified in the permit
under the following conditions:
(a) The holder shows good cause. In determining the extension,
the department shall give due weight to the considerations
described under ORS 539.010 (5) and to whether other governmental
requirements relating to the project have significantly delayed
completion of construction or perfection of the right;
(b) The extension of time is conditioned to provide that the
holder may divert water beyond the maximum rate diverted for
beneficial use before the extension only upon approval by the
department of a water management and conservation plan; and
(c) For the first extension issued after June 29, 2005, for a
permit for municipal use issued before November 2, 1998, the
department finds that the undeveloped portion of the permit is
conditioned to maintain, in the portions of waterways affected by
water use under the permit, the persistence of fish species
listed as sensitive, threatened or endangered under state or
federal law. The department shall base its finding on existing
data { - and upon the advice of the State Department of Fish
and Wildlife - } . An existing fish protection agreement between
the permit holder and a state or federal agency that includes
conditions to maintain the persistence of any listed fish species
in the affected portion of the waterway is conclusive for
purposes of the finding.
(3) If the construction of any well or other means of
developing and securing the ground water is completed after the
date of approval of the application for a permit under ORS
537.625, within 30 days after the completion, or if the
construction is completed before the date of approval, within 30
days after the date of approval, the permit holder shall file a
certificate of completion with the { - Water Resources - }
department, disclosing:
(a) The depth to the water table;
(b) The depth, diameter and type of each well, and the kind and
amount of the casing;
(c) The capacity of the well pump in gallons per minute and the
drawdown thereof;
(d) The identity of the record owner of any property that was
described in the application for a permit under ORS 537.625 but
is not included in the certificate of completion; and
(e) Any other information the department considers necessary.
(4) Upon completion of beneficial use necessary to secure the
ground water as required under this section, the permit holder
shall hire a water right examiner certified under ORS 537.798 to
survey the appropriation. Within one year after applying the
water to beneficial use or the beneficial use date allowed in the
permit, the permit holder shall submit the survey as required by
the { - Water Resources - } department to the department along
with the certificate of completion required under subsection (3)
of this section. If any property described in the permit is not
included in the request for a water right certificate, the
permittee shall state the identity of the record owner of that
property.
(5) After the department has received a certificate of
completion and a copy of the survey as required by subsections
(3) and (4) of this section that show, to the satisfaction of the
department, that an appropriation has been perfected in
accordance with the provisions of ORS 537.505 to 537.795 and
537.992, the department shall issue a ground water right
certificate of the same character as that described in ORS
537.700. The certificate shall be recorded and transmitted to the
applicant as provided in ORS 537.700.
(6) The procedure for cancellation of a permit shall be as
provided in ORS 537.260.
(7) Notwithstanding ORS 537.410, for purposes of obtaining a
water right certificate under subsection (5) of this section for
a supplemental water right, the permittee shall have a facility
capable of handling the full rate and duty of water requested
from the supplemental source and be otherwise ready, willing and
able to use the amount of water requested, up to the amount of
water approved in the water right permit. To obtain a certificate
for a supplemental water right, the permittee is not required to
have actually used water from the supplemental source if:
(a) Water was available from the source of the primary water
right and the primary water right was used pursuant to the terms
of the primary water right; or
(b) The nonuse of water from the supplemental source occurred
during a period of time within which the exercise of the
supplemental water right permit was not necessary due to climatic
conditions.
SECTION 1428. ORS 537.635 is amended to read:
537.635. (1) Any certificate of registration issued under ORS
537.610 or permit issued under ORS 537.625 may be assigned,
subject to the conditions of the certificate of registration or
permit, but no such assignment shall be binding, except upon the
parties to the assignment, unless filed for record in the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + }.
(2) An assignment of an application filed under ORS 537.615 or
a permit issued under ORS 537.625 and filed for record with the
{ - Water Resources - } department shall identify the current
record owners of all property described in the application or
permit. The assignor shall furnish proof acceptable to the
department that notice of the assignment has been given or
attempted for each identified property owner not a party to the
assignment.
SECTION 1429. ORS 537.665 is amended to read:
537.665. (1) Upon its own motion, or upon the request of
another state agency or local government, the { - Water
Resources Commission - } { + Oregon Natural Resources
Commission + }, within the limitations of available resources,
shall proceed as rapidly as possible to identify and define
tentatively the location, extent, depth and other characteristics
of each ground water reservoir in this state, and shall assign to
each a distinctive name or number or both as a means of
identification. The commission may make any investigation and
gather all data and information essential to a proper
understanding of the characteristics of each ground water
reservoir and the relative rights to appropriate ground water
from each ground water reservoir.
(2) In identifying the characteristics of each ground water
reservoir under subsection (1) of this section, the commission
shall coordinate its activities with activities of the Department
of Environmental Quality under ORS 468B.185 in order that the
final characterization may include an assessment of both ground
water quality and ground water quantity.
(3) Before the commission makes a final determination of
boundaries and depth of any ground water reservoir, the
{ - Water Resources Director - } { + Director of the Oregon
Department of Natural Resources + } shall proceed to make a final
determination of the rights to appropriate the ground water of
the ground water reservoir under ORS 537.670 to 537.695.
(4) The commission shall forward copies of all information
acquired from an assessment conducted under this section to the
central repository of information about Oregon's ground water
resource established pursuant to ORS 468B.167.
SECTION 1430. ORS 537.670 is amended to read:
537.670. (1) The { - Water Resources Director - }
{ + Director of the Oregon Department of Natural Resources + }
upon the motion of the director or, in the discretion of the
director, upon receipt of a petition therefor by any one or more
appropriators of ground water from such ground water reservoir,
may proceed to make a final determination of the rights to
appropriate the ground water of any ground water reservoir in
this state.
(2) The director shall prepare a notice of intent to begin a
determination referred to in subsection (1) of this section. The
notice shall set forth a place and time when the director or the
authorized assistant of the director shall begin the taking of
testimony as to the rights of the various claimants to
appropriate the ground water of the ground water reservoir and as
to the boundaries and depth thereof. A copy of the notice shall
be delivered to each person or public agency known to the
director from an examination of the records in the { - Water
Resources Department - } { + Oregon Department of Natural
Resources + } to be a claimant to a right to appropriate ground
water of the ground water reservoir or any surface water within
the area in which the ground water reservoir is located. The
notice shall also be published in at least one issue each week
for at least two consecutive weeks in a newspaper of general
circulation published in each county in which the ground water
reservoir or any part thereof is located. If the ground water
reservoir is located in whole or in part within the limits of any
city, the notice shall be published in at least one issue each
week for at least two consecutive weeks in a newspaper of general
circulation published in the city, if any, and copies of the
notice shall be delivered to the mayor or chairperson of the
governing body of the city. Copies of the notice shall be
delivered and the last publication date of published notices
shall be at least 30 days prior to the taking of any testimony.
(3) The director shall enclose with each copy of the notice
referred to in subsection (2) of this section delivered to each
person or public agency known to be a claimant to a right to
appropriate ground water of the ground water reservoir a blank
form on which such claimant shall present in writing all the
particulars necessary for determination of the right of the
claimant as may be prescribed by the director. The director may
require each claimant to certify to the statements of the
claimant under oath, and the director or the authorized assistant
of the director may administer such oaths.
SECTION 1431. ORS 537.675 is amended to read:
537.675. (1) Whenever the { - Water Resources Director - }
{ + Director of the Oregon Department of Natural Resources + }
has reason to believe that two or more ground water reservoirs
overlie one another wholly or in part, the director may proceed
to a final determination of the rights to appropriate the ground
water of each of such ground water reservoirs in the same
proceeding under ORS 537.670 to 537.695.
(2) The director may include in a determination proceeding
under ORS 537.670 to 537.695 a determination of a critical ground
water area under ORS 537.730 to 537.740.
SECTION 1432. ORS 537.685 is amended to read:
537.685. As soon as practicable after compilation of the
evidence obtained in proceedings under ORS 537.665 to 537.680,
the
{ - Water Resources Director - } { + Director of the Oregon
Department of Natural Resources + } shall make { - and cause to
be entered of record in the Water Resources Department - }
{ + and record + } findings of fact and an order of
determination, determining and establishing the several rights to
appropriate the ground water of the ground water reservoir. The
findings of fact and order of determination shall also include:
(1) The boundaries and depth of each ground water reservoir.
(2) The lowest permissible water level in each ground water
reservoir.
(3) The location, extent, quality and other pertinent
characteristics of the ground water supply.
(4) The serviceable methods of withdrawal of the ground water
from each ground water reservoir.
(5) Rules for controlling the use of the ground water from each
ground water reservoir.
(6) Such general or special rules or restrictions with respect
to the construction, operation and protection of wells and the
withdrawal of ground water thereby as in the judgment of the
director the public welfare, health and safety may require.
(7) The name and post-office address of each claimant.
(8) The nature of the use of the ground water allowed for each
well, together with the maximum permissible use of the ground
water, the place of use of the ground water and the date of
priority of each use.
(9) If the ground water is used or is to be used for irrigation
purposes, a description of the lands irrigated or to be
irrigated, giving the number of acres irrigated or to be
irrigated in each 40-acre legal subdivision.
(10) The location of each well with reference to government
survey corners or monuments or corners of recorded plats.
(11) The depth, diameter and type of each well, the kind and
amount of the casing, the capacity of each well in gallons per
minute and such other information concerning each well as in the
opinion of the director may be pertinent.
SECTION 1433. ORS 537.690 is amended to read:
537.690. The evidence relied upon by the { - Water Resources
Director - } { + Director of the Oregon Department of Natural
Resources + } in the entry of the findings of fact and order of
determination under ORS 537.685, together with a copy of such
findings and order, shall be certified to by the director and
filed with the clerk of the circuit court wherein the
determination is to be heard, which shall be the circuit court of
any county in which the ground water reservoir or any part
thereof is located. A certified copy of the findings of fact and
the order of determination shall also be filed with the county
clerk of every other county in which the ground water reservoir
or any part thereof is located. Thereafter, proceedings shall be
had as nearly as possible in the same manner as provided in ORS
539.130 (2), (3) and (4), 539.150, 539.160, 539.170, 539.180,
539.190 and 539.210 for the final adjudication of the relative
rights of the various claimants to the waters of any surface
stream.
SECTION 1434. ORS 537.695 is amended to read:
537.695. The determination of the { - Water Resources
Director - } { + Director of the Oregon Department of Natural
Resources + } under ORS 537.685, as confirmed or modified by the
circuit court or Supreme Court, shall be a conclusive
adjudication as to all claimants of rights to appropriate the
ground water of each ground water reservoir included within the
order of determination.
SECTION 1435. ORS 537.700 is amended to read:
537.700. Upon the final determination under ORS 537.670 to
537.695 of the rights to appropriate the ground water of any
ground water reservoir, the { - Water Resources Director - }
{ + Director of the Oregon Department of Natural Resources + }
shall issue to each person or public agency represented in the
determination proceedings and who is determined to have such a
right a ground water right certificate, setting forth the name
and post-office address of the owner of the right; the priority
of the date, extent and purpose of the right; and, if the ground
water is for irrigation purposes, a description of the legal
subdivisions of land to which the ground water is appurtenant.
SECTION 1436. ORS 537.720 is amended to read:
537.720. Whenever, after notice to and opportunity to be heard
by such holder, the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } finds that the
holder of any permit or certificate of registration issued under
ORS 537.505 to 537.795 and 537.992 is willfully violating any
provision of the permit or certificate of registration or any
provision of ORS 537.505 to 537.795 and 537.992, the commission
may cancel or suspend the permit or certificate of registration
or impose conditions on the future use thereof to prevent such
violation.
SECTION 1437. ORS 537.730 is amended to read:
537.730. (1) The { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } by rule may
designate an area of the state a critical ground water area if:
(a) Ground water levels in the area in question are declining
or have declined excessively;
(b) The { - Water Resources Department - } { + Oregon
Department of Natural Resources + } finds a pattern of
substantial interference between wells within the area in
question;
(c) The department finds a pattern of interference or potential
interference between wells of ground water claimants or
appropriators within the area in question with the production of
geothermal resources from an area regulated under ORS chapter
522;
(d) The department finds a pattern of substantial interference
between wells within the area in question and:
(A) An appropriator of surface water whose water right has an
earlier priority date; or
(B) A restriction imposed on surface water appropriation or a
minimum perennial streamflow that has an effective date earlier
than the priority date of the ground water appropriation;
(e) The available ground water supply in the area in question
is being or is about to be overdrawn;
(f) The purity of the ground water in the area in question has
been or reasonably may be expected to become polluted to an
extent contrary to the public welfare, health and safety; or
(g) Ground water temperatures in the area in question are
expected to be, are being or have been substantially altered
except as specified in ORS 537.796.
(2) The proceeding to designate a critical ground water area
shall be conducted according to the provisions under ORS chapter
183 applicable to the adoption of rules by an agency, except that
a hearing on a critical ground water declaration shall occur at
least 60 days after notice has been given.
(3) In addition to the notice requirements under ORS 183.335,
the department shall give notice by regular mail to:
(a) The owners of record of all ground water registrations,
permits and certificates for water use within the affected area;
and
(b) Each water well constructor licensed under ORS 537.747.
(4) If the department satisfies the notice requirements under
ORS 183.335 and subsection (3) of this section, a person shall
not contest a critical ground water area designation on grounds
of failure to receive notice by regular mail.
SECTION 1438. ORS 537.735 is amended to read:
537.735. (1) A rule adopted by the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + }
under ORS 537.730 shall:
(a) Define the boundaries of the critical ground water area and
shall indicate which of the ground water reservoirs located
either in whole or in part within the area in question are
included within the critical ground water area. Any number of
ground water reservoirs which either wholly or partially overlie
one another may be included within the same critical ground water
area.
(b) Contain a provision requiring a periodic review of
conditions in the critical ground water area. The review shall be
in sufficient detail to evaluate the continuing need for the
critical ground water area designation and shall occur no less
frequently than once every 10 years.
(2) In adopting the rule, the commission shall consider any
orders or permits applicable to the reservoir issued by the
{ - governing board or State Geologist of the State Department
of Geology and Mineral Industries - } { + Director of the
Oregon Department of Natural Resources + } under ORS chapter 522.
(3) A rule by the commission under subsection (1) of this
section may include any one or more of the following corrective
control provisions:
(a) A provision closing the critical ground water area to any
further appropriation of ground water, in which event the
commission shall thereafter refuse to accept any application for
a permit to appropriate ground water located within such critical
area.
(b) A provision determining the permissible total withdrawal of
ground water in the critical area each day, month or year.
(c) The disposition of any application for a water right permit
for the use of water in the area that is pending at the time the
commission initiates the rulemaking process or that is received
during the rulemaking process.
(d) Any one or more provisions making such additional
requirements as are necessary to protect the public welfare,
health and safety in accordance with the intent, purposes and
requirements of ORS 537.505 to 537.795 and 537.992.
(e) A provision closing all or part of the critical ground
water area to further appropriation of ground water for its
thermal characteristics.
(f) A provision determining the permissible change in thermal
characteristics of ground water in all or part of the critical
ground water area each day, month or year. Insofar as may be
reasonably done, the { - Water Resources Director - }
{ + Director of the Oregon Department of Natural Resources + }
shall apportion the permissible total temperature impact among
those appropriators whose exercise of valid rights in the
critical area affect the thermal characteristics of the ground
water, in accordance with the relative dates of priority of such
rights.
SECTION 1439. ORS 537.740 is amended to read:
537.740. In addition to any applicable requirements under ORS
chapter 183, the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } shall file a copy of
any rules designating a critical ground water area under ORS
537.730 to 537.740 with the county clerk of each county within
which any part of the critical ground water area lies, and the
county clerk shall record the designation in the deed records of
the county.
SECTION 1440. ORS 537.742 is amended to read:
537.742. (1) Any time after the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + }
adopts a rule under ORS 537.730 designating a critical ground
water area, the commission may initiate a contested case
proceeding to limit the use of ground water in the area if the
commission has reason to believe that any of the qualifying
criteria of ORS 537.730 (1) exists.
(2) Upon the conclusion of a contested case proceeding
initiated under subsection (1) of this section and upon finding
that the problems that resulted in the designation of a critical
ground water area under ORS 537.730 can be resolved by
implementing one or more of the corrective control provisions of
this section, the commission shall issue a final order
establishing any one or more of the following corrective control
provisions:
(a) A provision apportioning the permissible total withdrawal
as established by rule under ORS 537.730, among the appropriators
holding valid rights to ground water in the critical area in
accordance with the relative dates of priority of such rights.
(b) A provision according preference, without reference to
relative priorities, to withdrawals of ground water in the
critical area for residential and livestock watering purposes
first. Thereafter, the commission may authorize withdrawals of
ground water in the critical area for other beneficial purposes,
including agricultural, industrial, municipal other than
residential, and recreational purposes, in such order as the
commission considers advisable under the circumstances, so long
as such withdrawal will not materially affect a properly designed
and operating well with prior rights that penetrates the aquifer.
(c) A provision reducing the permissible withdrawal of ground
water by any one or more appropriators or wells in the critical
area.
(d) Where two or more wells in the critical area are used by
the same appropriator, a provision adjusting the total
permissible withdrawal of ground water by such appropriator, or a
provision forbidding the use of one or more of such wells
completely.
(e) A provision requiring the abatement, in whole or part, or
the sealing of any well in the critical area responsible for the
admission of polluting materials into the ground water supply or
responsible for the progressive impairment of the quality of the
ground water supply by dispersing polluting materials that have
entered the ground water supply previously.
(f) A provision requiring and specifying a system of rotation
of use of ground water in the critical area.
(3) The commission shall conduct the proceeding under this
section according to the provisions of ORS chapter 183 applicable
to contested case proceedings.
SECTION 1441. ORS 537.745 is amended to read:
537.745. (1) In the administration of ORS 537.505 to 537.795
and 537.992, the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } may encourage,
promote and recognize voluntary agreements among ground water
users from the same ground water reservoir. When the commission
finds that any such agreement, executed in writing and filed with
the commission, is consistent with the intent, purposes and
requirements of ORS 537.505 to 537.795 and 537.992, and in
particular ORS 537.525, 537.730 to 537.740 and 537.780, the
commission shall approve the agreement. Thereafter the agreement,
until terminated as provided in this subsection, shall control in
lieu of a formal order or rule of the commission under ORS
537.505 to 537.795 and 537.992. Any agreement approved by the
commission may be terminated by the lapse of time as provided in
the agreement, by consent of the parties to the agreement or by
order of the commission if the commission finds, after
investigation and a public hearing upon adequate notice, that the
agreement is not being substantially complied with by the parties
thereto or that changed conditions have made the continuance of
the agreement a detriment to the public welfare, safety and
health or contrary in any particular to the intent, purposes and
requirements of ORS 537.505 to 537.795 and 537.992.
(2) When any irrigation district, drainage district, other
district organized for public purposes or other public
corporation or political subdivision of this state is authorized
by law to enter into agreements of the kind referred to in
subsection (1) of this section, the commission may approve such
agreements as provided in subsection (1) of this section. Any
such agreement approved by the commission shall have the same
effect and shall be subject to termination in the same manner and
for the same reasons set forth in subsection (1) of this section.
SECTION 1442. ORS 537.746 is amended to read:
537.746. (1) The { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } may by rule
establish a system of credits that may be used to offset the
potential interference with hydraulically connected surface
waters caused by ground water withdrawals within the Deschutes
River Basin to account for projects performed in the basin that
make water available for mitigation.
(2) A person proposing a project that makes water available for
mitigation may apply to the { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } for approval of
the project and a preliminary finding as to the amount of
mitigation credits available, based on the amount of water made
available by the project. Projects approved by the department
shall comply with all other applicable provisions of law,
including relevant portions of ORS 390.835, and may not result in
injury to existing water rights.
(3)(a) The amount of mitigation credits awarded for a completed
project, or any completed phase of the project, shall be equal to
the amount of water made available by the project as determined
and approved by the department.
(b) A final award of mitigation credits by the department shall
be made upon completion of the approved project by the applicant
and verification by the department that the project is complete.
The department may provide for a partial award of mitigation
credits to correspond with completion of approved phases of
project implementation.
(c) Mitigation credits shall remain valid until exercised by
the holder.
(4) The commission may by rule provide for the recognition or
establishment of mitigation banks to facilitate transactions
among the holders of mitigation credits and persons who desire to
acquire mitigation credits. The mitigation credits may be
assigned by the person creating the project to another person or
a mitigation bank.
(5) The { - Water Resources - } department shall prepare an
annual report on the implementation and management of the system
of mitigation credits established by subsections (1) to (4) of
this section.
SECTION 1443. ORS 537.747 is amended to read:
537.747. (1) No person shall advertise services to construct,
alter, abandon or convert wells, offer to enter or enter into a
contract with another person or public agency to construct,
alter, abandon or convert a well for such other person, cause any
well construction, alteration, abandonment or conversion to be
performed under such a contract or operate well drilling
machinery without possessing a water well constructor's license
therefor in good standing issued by the { - Water Resources
Department - } { + Oregon Department of Natural Resources + }.
The department shall adopt a single water well constructor's
license that may specify the type of well, type of well
alteration or construction or type of well drilling machine
operation for which the water well constructor is qualified.
(2) Notwithstanding subsection (1) of this section, a person
may operate a well drilling machine without a water well
constructor's license if supervised by one who possesses such a
license.
(3) A person shall be qualified to receive a water well
constructor's license if the person:
(a) Is at least 18 years of age.
(b) Has passed a written examination conducted by the
department to determine fitness to operate as a water well
constructor.
(c) Has paid a license fee and an examination fee according to
the fee schedule set forth under subsection (6) of this section.
(d) Has one year or more experience in the operation of well
drilling machinery.
(4) Upon fulfillment of all the requirements set out in
subsection (3) of this section, the department shall issue the
applicant a water well constructor's license in a form prescribed
by the department. The license may be issued for a period of two
years.
(5) A water well constructor's license shall expire on June 30
or on such date as may be specified by department rule. A person
may renew a license by submitting an application and the
appropriate fees any time before the license expires but not
later than one year after the license expires. A person who
renews a license within the 12 months after the license expires
may either pay a penalty fee set forth under subsection (6)(d) of
this section or requalify for a water well constructor's license
in accordance with subsection (3) of this section. If a person
fails to renew a license within 12 months after expiration, the
person must comply with the requirements of subsection (3) of
this section for a new water well constructor's license.
(6) The department shall collect in advance the following fees:
(a) An examination fee of $20.
(b) A license fee of $150.
(c) A renewal fee of $150.
(d) Unless a person requalifies for a water well constructor's
license in accordance with subsection (3) of this section, a
water well constructor shall pay a renewal fee of $250 if the
license is renewed within 12 months after expiration.
(e) If a person requalifies for a water well constructor's
license under subsection (3) of this section, the person shall
pay the renewal fee established under paragraph (c) of this
subsection.
(7) The department may revoke, suspend or refuse to renew any
water well constructor's license when it appears to the
satisfaction of the department, after notice and opportunity to
be heard by the licensee, that the licensee has failed to comply
with the provisions of ORS 537.505 to 537.795 and 537.992
applicable to such licensee or any order or rule adopted
thereunder applicable to such licensee, or has made a material
misstatement of fact on an application for a license or well log
or established a pattern of conduct that willfully or negligently
violates any provision of ORS 537.505 to 537.795 and 537.992, or
any rule adopted pursuant thereto, applicable to such licensee.
(8) The provisions of subsection (3) of this section requiring
one year or more experience in the operation of well drilling
machinery do not apply to any person who, on July 1, 1981, holds
the license required by this section and who continues thereafter
to maintain the license in good standing.
(9) The fees collected under subsection (6) of this section
shall be paid into the { - Water Resources Department Water
Right Operating Fund - } { + Oregon Natural Resources Fund + }.
Such moneys are continuously appropriated to the { - Water
Resources - } department to pay the department's expenses in
administering and enforcing the water well constructor's
licensing program.
SECTION 1444. ORS 537.750 is amended to read:
537.750. (1) The written examination required under ORS 537.747
(3)(b) shall be prepared to test the applicant's knowledge and
understanding of the following subjects:
(a) Laws of the state pertaining to the appropriation and use
of ground water, the licensing requirements of ORS 537.747 to
537.765, the construction of wells and the preparation and filing
of well logs.
(b) Rules of the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } pertaining to the
appropriation and use of ground water, the construction of wells
and the preparation and filing of well logs.
(c) Basic information on ground water geology, the occurrence
and movement of ground water, and the design, construction and
development of wells.
(d) Types, uses and maintenance of drilling tools and
equipment, drilling problems and corrective procedures, repair of
faulty wells, sealing of wells and safety rules and practices.
(2) Examinations shall be given during the months of January,
April, July and October. The date, time and place of the
examination are to be established by the commission. The
examination shall be given only to those applicants who have met
the requirement set out in ORS 537.747 (3)(a) and have paid the
$20 examination fee. An applicant who fails to pass the
examination by not attaining a grade of 70 or better may retake
the examination after three months and the payment of another $20
examination fee.
SECTION 1445. ORS 537.753 is amended to read:
537.753. (1) Any person who contracts or offers services to
contract to construct, alter, abandon or convert wells shall have
in effect a surety bond or an irrevocable letter of credit issued
by an insured institution, as defined in ORS 706.008, running to
the State of Oregon in the sum of $10,000, ensuring that in the
construction, alteration, abandonment or conversion of wells, the
principal shall comply with all the provisions of ORS 537.505 to
537.795 and 537.992 that are applicable to such construction,
alteration, abandonment or conversion and to the rules and
standards of well construction, alteration, abandonment and
conversion that have been prescribed by the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + }. The
bond or letter of credit shall be filed with the { - Water
Resources - } commission.
(2) The { - Water Resources - } commission or any person
injured by failure of a water well constructor to comply with the
provisions of the bond or letter of credit has a right of action
on the bond or letter of credit in the name of the injured
person. However, the aggregate liability of the surety or letter
of credit issuer to all such persons may not exceed the sum of
the bond or letter of credit.
(3) A proceeding against the bond or letter of credit under
subsection (2) of this section may not be commenced unless the
commission notifies the water well constructor of the alleged
violation within three years after the date the water well report
is filed with the commission.
(4) If a well is to be constructed, altered, abandoned or
converted by a person on property owned by that person, by means
of a well drilling machine, the person shall obtain a permit from
the commission before beginning work. Application for the permit
shall be in the form prescribed by the commission and must be
accompanied by a fee of $25. At the time the permit is obtained,
the applicant also shall file with the commission a bond or an
irrevocable letter of credit issued by an insured institution as
defined in ORS 706.008 running to the State of Oregon in the sum
of $5,000, ensuring that in the construction, alteration,
abandonment or conversion of the well the landowner shall comply
with all the provisions of ORS 537.505 to 537.795 and 537.992
that are applicable to the construction, alteration, abandonment
or conversion of wells and to the rules and standards of well
construction, alteration, abandonment and conversion that have
been prescribed by the commission. Before the person who
constructs, alters, abandons or converts a well referred to in
this subsection seals the well, the person must give 10 days'
written notice of the construction, alteration, abandonment or
conversion to the commission. After expiration of the notice
period, the well may be sealed even if the commission has not
caused the well to be inspected.
SECTION 1446. ORS 537.762 is amended to read:
537.762. (1) Each person required to possess a license under
ORS 537.747 who has entered into a contract to construct, alter,
abandon or convert a well or cause a well to be constructed,
altered, abandoned or converted shall, before beginning work on
the well, make a report to the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + }
containing:
(a) The name and post-office address of the owner of the well.
(b) The approximate location of the well.
(c) The proposed depth and diameter of the well.
(d) The proposed purpose or use of the ground water from the
well.
(2) The commission shall furnish a convenient means for
submitting the reports referred to in subsection (1) of this
section to each person who possesses a license under ORS 537.747.
(3) A separate report shall be furnished under subsection (1)
of this section for each well that is constructed, altered,
abandoned or converted.
(4) The report furnished under subsection (1) of this section
shall be confidential and maintained as such for one year or
until the well log required under ORS 537.765 is received by the
commission, whichever is earlier. Nothing in this subsection
prohibits the commission from using the report for enforcement
actions during the period the report is considered confidential.
(5) Each report form submitted under subsection (1) of this
section for the construction of a new well, deepening of an
existing well, or conversion of a well shall be accompanied by a
fee of $225. Notwithstanding the fee established pursuant to this
subsection, the commission may adopt by rule a reduced fee for
persons submitting materials to the { - Water Resources
Department - } { + Oregon Department of Natural Resources + }
in a digital format approved by the department.
(6) The moneys paid to the commission under subsection (5) of
this section shall be paid into the { - Water Resources
Department Operating Fund - } { + Oregon Natural Resources
Fund + }. All interest, if any, from moneys received under
subsection (5) of this section shall inure to the benefit of the
{ - Water Resources - } department. Such moneys and interest
earned on such moneys are continuously appropriated to the
department to be used to pay the costs of the department to
employ personnel to inspect wells and well construction.
SECTION 1447. ORS 537.763 is amended to read:
537.763. { - (1) There is established in the State Treasury
the Water Resources Department Operating Fund to provide for the
payment of the administrative expenses of the Water Resources
Commission in carrying out the provisions of ORS 537.762. - }
{ - (2) The Water Resources Department Operating Fund shall
consist of: - }
{ - (a) Fees received pursuant to ORS 537.762. - }
{ - (b) All moneys received on behalf of the fund by gift,
grant or appropriation, from whatever source. - }
{ - (3) The Water Resources Department Operating Fund shall
be separate and distinct from the General Fund. All interest, if
any, shall inure to the benefit of the Water Resources Department
Operating Fund. - }
{ - (4) - } In expending moneys in the { - Water Resources
Department Operating Fund - } { + Oregon Natural Resources
Fund + } received from fees pursuant to ORS 537.762, the biennial
limitations on expenditures of the { - Water Resources
Department - } { + Oregon Department of Natural Resources + }
shall be:
{ - (a) - } { + (1) + } No more than five percent for well
inspection administrative support;
{ - (b) - } { + (2) + } No more than 20 percent for well
inspection technical and information services; and
{ - (c) - } { + (3) + } No less than 75 percent for well
inspection field investigation and enforcement.
SECTION 1448. ORS 537.765 is amended to read:
537.765. (1) The business or activity of constructing new wells
or altering, abandoning or converting existing wells is declared
to be a business or activity affecting the public welfare, health
and safety. In order to enable the state to protect the welfare,
health and safety of its { - citizens - } { + residents + },
any person licensed under ORS 537.747, or any person or public
agency constructing, altering, abandoning or converting a well,
shall keep a log of each well constructed, altered, abandoned or
converted and shall furnish a certified copy of the log to the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + } within 30 days after the completion of
the construction, alteration, abandonment or conversion.
(2) The commission shall provide acknowledgment to the
constructor of receipt of a well log submitted under subsection
(1) of this section within 120 days of receipt.
(3) Each log required under subsection (1) of this section
shall be in a form prescribed by the commission and shall show:
(a) The name and post-office address of the owner of the well
and the person or public agency performing or causing the
performance of the work of constructing, altering, abandoning or
converting the well.
(b) The location of the well by county tax lot number,
township, range and section, and to the nearest quarter-quarter
section or latitude and longitude as established by a global
positioning system, or with reference to government survey
corners or monuments or corners of recorded plats.
(c) The dates of commencement and completion of the work of
constructing, altering, abandoning or converting the well.
(d) The depth, diameter and type of the well.
(e) The kind and amount of the casing and where placed in the
well, including the number and location of perforations or
screens.
(f) The flow in cubic feet per second or gallons per minute of
a flowing well, and the shut-in pressure in pounds per square
inch.
(g) The static water level with reference to the land surface,
and the drawdown with respect to the amount of water pumped per
minute, when a pump test is made.
(h) The kind and nature of the material in each stratum
penetrated, with at least one entry for each change of formation,
and the thickness of aquifers.
(i) The temperature of the ground water encountered and other
characteristics of the ground water in detail as required by the
commission.
(4) If required by the commission, the person, public agency or
licensee referred to in subsection (1) of this section shall
furnish to the commission samples of the ground water and of each
change of formation in containers furnished and transportation
expense paid by the commission.
SECTION 1449. ORS 537.769 is amended to read:
537.769. The Legislative Assembly finds that ground water
protection is a matter of statewide concern. No ordinance, order
or regulation shall be adopted by a local government to regulate
the inspection of wells, construction of wells or water well
constructors subject to regulation by the { - Water Resources
Commission or the Water Resources Department - } { + Oregon
Department of Natural Resources or the Oregon Natural Resources
Commission + } under ORS 537.747 to 537.795 and 537.992.
SECTION 1450. ORS 537.772 is amended to read:
537.772. (1) The owner or operator of any well, except wells
used for purposes listed in ORS 537.545, shall conduct a pump
test at least once every 10 years and report the results of that
test to the { - Water Resources Commission - } { + Oregon
Natural Resources Commission + }. The owner or operator may
conduct the test in conjunction with normal pump service and
testing or at any time more convenient to the owner or operator
of the well.
(2) The owner or operator shall report the results of the pump
test on a form provided by the commission. The form shall include
but need not be limited to the duration of the test, rate of
pumping, total water level decrease and time required for 90
percent recovery of water level.
(3) The commission may establish by rule criteria for waiver of
the pump test requirement.
SECTION 1451. ORS 537.775 is amended to read:
537.775. (1) Whenever the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } finds that any well,
including any well exempt under ORS 537.545, is by the nature of
its construction, operation or otherwise causing wasteful use of
ground water, is unduly interfering with other wells or surface
water supply, is a threat to health, is polluting ground water or
surface water supplies, is causing substantial alteration of
ground water temperatures or is causing substantial thermal
interference with other wells contrary to ORS 537.505 to 537.795
and 537.992, the commission may order discontinuance of the use
of the well, impose conditions upon the use of such well to such
extent as may be necessary to remedy the defect or order
permanent abandonment of the well according to specifications of
the commission.
(2) In the absence of a determination of a critical ground
water area, any order issued under this section imposing
conditions upon interfering wells shall provide to each party all
water to which the party is entitled, in accordance with the date
of priority of the water right.
(3) A landowner who replaces an old well by drilling a new well
shall permanently abandon the old well if the old well is within
a setback as defined in well construction rules adopted by the
commission. Permanent abandonment of a well located within a
setback shall occur within one year after the function of the
well is replaced or within one year after the water right, if
applicable, is transferred to the new well, whichever is later.
SECTION 1452. ORS 537.777 is amended to read:
537.777. (1) The { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } shall regulate or
cause to be regulated the controlling works of wells and
distribute ground water to secure compliance or equal and fair
distribution if the commission finds that:
(a) Any person or public agency is using or attempting to use
any ground water or is operating or permitting the operation of
any well owned or controlled by such person or public agency
except upon compliance with ORS 537.505 to 537.795 and 537.992
and any applicable order or rule of the commission under ORS
537.505 to 537.795 and 537.992; or
(b) It is necessary in order to secure the equal and fair
distribution of ground water in accordance with the rights of the
various ground water users.
(2) The regulation of controlling works and distribution of
ground water under subsection (1) of this section shall be as
nearly as possible in the same manner as provided in ORS 540.010
to 540.130.
SECTION 1453. ORS 537.780 is amended to read:
537.780. (1) In the administration of ORS 537.505 to 537.795
and 537.992, the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } may:
(a) Require that all flowing wells be capped or equipped with
valves so that the flow of ground water may be completely stopped
when the ground water is not actually being applied to a
beneficial use.
(b) Enforce:
(A) General standards for the construction and maintenance of
wells and their casings, fittings, valves, pumps and
back-siphoning prevention devices; and
(B) Special standards for the construction and maintenance of
particular wells and their casings, fittings, valves and pumps.
(c)(A) Adopt by rule and enforce when necessary to protect the
ground water resource, standards for the construction,
maintenance, abandonment or use of any hole through which ground
water may be contaminated; or
(B) Enter into an agreement with, or advise, other state
agencies that are responsible for holes other than wells through
which ground water may be contaminated in order to protect the
ground water resource from contamination.
(d) Enforce uniform standards for the scientific measurement of
water levels and of ground water flowing or withdrawn from wells.
(e) Enter upon any lands for the purpose of inspecting wells,
including wells exempt under ORS 537.545, casings, fittings,
valves, pipes, pumps, measuring devices and back-siphoning
prevention devices.
(f) Prosecute actions and suits to enjoin violations of ORS
537.505 to 537.795 and 537.992, and appear and become a party to
any action, suit or proceeding in any court or before any
administrative body when it appears to the satisfaction of the
commission that the determination of the action, suit or
proceeding might be in conflict with the public policy expressed
in ORS 537.525.
(g) Call upon and receive advice and assistance from the
Environmental Quality Commission or any other public agency or
any person, and enter into cooperative agreements with a public
agency or person.
(h) Adopt and enforce rules necessary to carry out the
provisions of ORS 537.505 to 537.795 and 537.992 including but
not limited to rules governing:
(A) The form and content of registration statements,
certificates of registration, applications for permits, permits,
certificates of completion, ground water right certificates,
notices, proofs, maps, drawings, logs and licenses;
(B) Procedure in hearings held by the { + Oregon Natural
Resources + } Commission; and
(C) The circumstances under which the helpers of persons
operating well drilling machinery may be exempt from the
requirement of direct supervision by a licensed water well
constructor.
(i) In accordance with applicable law regarding search and
seizure, apply to any court of competent jurisdiction for a
warrant to seize any well drilling machine used in violation of
ORS 537.747 or 537.753.
(2) Notwithstanding any provision of subsection (1) of this
section, in administering the provisions of ORS 537.505 to
537.795 and 537.992, the { + Oregon Natural Resources + }
Commission may not:
(a) Adopt any rule restricting ground water use in an area
unless the rule is { - based on substantial evidence in the
record of the Water Resources Department to justify the
imposition of restrictions - } { + supported by substantial
evidence that the rule is necessary + }.
(b) Make any determination that a ground water use will impair,
substantially interfere or unduly interfere with a surface water
source unless the determination is based on substantial evidence.
Such evidence may include reports or studies prepared with
relation to the specific use or may be based on the application
of generally accepted hydrogeological principles to the specific
use.
(3) At least once every three years, the { + Oregon Natural
Resources + } Commission shall review any rule adopted under
subsection (2) of this section that restricts ground water use in
an area. The review process shall include public notice and an
opportunity to comment on the rule.
SECTION 1454. ORS 537.783 is amended to read:
537.783. (1) The { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } shall adopt rules
{ - which - } { + that + } govern the disposal by reinjection
or other means of geothermal fluids derived from:
(a) Geothermal or hot water wells less than 2,000 feet deep
producing fluids of less than 250 degrees Fahrenheit bottom hole
temperature; or
(b) Geothermal or hot water wells less than 2,000 feet deep
producing fluids that have been appropriated pursuant to ORS
537.505 to 537.795 and 537.992.
(2) The rules adopted under subsection (1) of this section
shall include standards whereby contamination may be determined,
construction standards for reinjection wells, testing procedures
for identifying aquifers, standards and procedures for
determining whether adjacent aquifers are being degraded by the
reinjection process, guidelines for conservation of the resource,
criteria for evaluating reservoirs or zones for geothermal fluid
disposal and requirements for prior approval of all geothermal
fluid reinjection proposals.
(3) A water pollution control facilities permit shall be
obtained from the Department of Environmental Quality under ORS
468B.050 before reinjection is commenced. The Department of
Environmental Quality may, by agreement with the { - Water
Resources - } commission, waive this requirement { - for
reinjection into the reservoir from which the fluid came
where - } { + if + } adequate standards and tests have been
adopted to insure the fluid and its residues are uncontaminated.
SECTION 1455. ORS 537.785 is amended to read:
537.785. (1) In the administration of ORS 537.505 to 537.795
and 537.992, the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } shall collect in
advance, the fees set forth in ORS 539.081 for any service
similar to any of those referred to in ORS 539.081.
(2) All fees collected by the commission under subsection (1)
of this section shall be paid into the General Fund of the State
Treasury.
SECTION 1456. ORS 537.787 is amended to read:
537.787. (1) The { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + }, upon the
commission's own initiative, or upon complaint alleging violation
of any provision of ORS 537.505 to 537.795 and 537.992, or any
rule adopted pursuant thereto, may investigate to determine
whether a violation has occurred. If the investigation indicates
that a violation has occurred, the commission shall notify the
persons responsible for the violation, including:
(a) Any well constructor involved; and
(b) The landowner, if the violation involves construction,
alteration, operation, abandonment or conversion of a well.
(2) If, after notice and opportunity for hearing under ORS
chapter 183 the commission determines that one or more violations
have occurred, the commission may:
(a) Provide additional time for remedy of the violation if the
commission has reason to believe adequate repair or other remedy
will be carried out within the specified period.
(b) If one or more persons responsible for the violation hold a
water well constructor's license, suspend, revoke or refuse to
renew the license.
(c) Assess a civil penalty under ORS 537.992, on the well
constructor or other responsible party, including the landowner
if the landowner was involved in the well construction.
(d) If an involved constructor or landowner has a surety bond
required by ORS 537.753 (1) or (4) in effect, make demand on the
bond in an amount not to exceed the cost of remedying the
violation.
(e) Impose any reasonable condition on the water well
constructor's license to insure compliance with applicable laws
and provide protection to the ground water of the State of
Oregon. Such action shall be conducted as a contested case
proceeding according to the applicable provisions of ORS chapter
183.
(f) Any other action authorized by law.
(3) The commission may terminate proceedings against a person
if:
(a) The landowner does not permit the person involved in
proceedings to be present at any inspection made by the
commission; or
(b) The commission determines that the person involved in
proceedings is capable of complying with recommendations made by
the commission, but the landowner does not permit the person to
comply with the recommendations.
SECTION 1457. ORS 537.789 is amended to read:
537.789. (1) The well identification number provided by the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + } when the reporting requirement of ORS
537.762 is satisfied shall be recorded on the well by a person
licensed under ORS 537.747 within 30 days after the associated
well work is completed.
(2) If a well does not have an identification number recorded
on it at the time the property upon which the well is located is
transferred, the owner of the property shall record on the well
the identification number obtained from the { - Water
Resources - } department under ORS 537.791 within 30 days.
(3) The identification number on the well shall be clearly
visible to a person looking for the number and shall meet minimum
standards as recommended by the ground water advisory committee
appointed under ORS 536.090 and adopted by the { - Water
Resources Commission - } { + Oregon Natural Resources
Commission + }.
SECTION 1458. ORS 537.791 is amended to read:
537.791. (1) A landowner may apply to the { - Water Resources
Department - } { + Oregon Department of Natural Resources + }
for a number to identify a well on the landowner's property.
(2) The { - Water Resources - } department shall issue a
number to identify a well that has not received a number through
the reporting process required for wells under ORS 537.762 within
10 days after receipt of the application.
SECTION 1459. ORS 537.796 is amended to read:
537.796. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } shall adopt by rule an initial
temperature below which low temperature geothermal appropriations
shall not be protected from thermal interference caused by ground
water appropriations for other purposes.
SECTION 1460. ORS 537.797 is amended to read:
537.797. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } by rule shall establish criteria
for the certification of registered, professional land surveyors
and engineers and geologists practicing as defined in ORS 672.005
and 672.505, respectively, to conduct surveys to determine
whether a permittee has completed all work necessary to perfect
an appropriation of water under ORS 537.230, 537.630 and 540.530.
SECTION 1461. ORS 537.798 is amended to read:
537.798. (1) In accordance with criteria established by the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + }, the State Board of Examiners for
Engineering and Land Surveying shall:
(a) Conduct examinations for certification of registered,
professional land surveyors, engineers and geologists to conduct
surveys to determine whether or not a permittee has completed all
work necessary to perfect an appropriation of water under ORS
537.230, 537.630 and 540.530.
(b) Issue certificates to any land surveyor, engineer or
geologist qualifying for certification under paragraph (a) of
this subsection.
(c) Collect fees for the examination and certification of water
right examiners under this subsection.
(2) In accordance with the provisions of ORS chapter 183
relating to contested cases, the State Board of Examiners for
Engineering and Land Surveying may revoke, suspend or modify
certificates issued under subsection (1) of this section.
(3) The State Board of Examiners for Engineering and Land
Surveying shall establish fees for the examination, certification
and renewal of certification of water right examiners. The fees
shall be based upon the expenses of the board in conducting a
program to certify water right examiners and the expenses of the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + } in providing for examination of water right
appropriations by water right examiners.
(4) The board shall pay into the State Treasury all moneys
received as fees under subsection (1) of this section. The State
Treasurer shall credit such money to the State Board of Examiners
for Engineering and Land Surveying. The moneys are continuously
appropriated to the board to be used by the board in conjunction
with the { - Water Resources - } department for any expenses
incurred by the board and, if approved by the Governor, any
expenses incurred by the { - Water Resources - } department in
the certification, examination and review of activities of water
right examiners.
SECTION 1462. ORS 537.799 is amended to read:
537.799. Any person who has applied for or received a permit or
a transfer to appropriate water under ORS 537.211, 537.625 or
540.530 on or before July 9, 1987, shall notify the { - Water
Resources Department - } { + Oregon Department of Natural
Resources + } that the work has been completed and either:
(1) Hire a water right examiner certified under ORS 537.798 to
conduct a survey, the original to be submitted as required by the
{ - Water Resources - } department, for issuance of a water
right certificate; or
(2) Continue to appropriate water under the water right permit
or transfer issued under ORS 537.211, 537.625 or 540.530 until
the { - Water Resources - } department conducts a survey and
the
{ - commission - } { + department + } issues a water right
certificate under ORS 537.250 or 537.625.
SECTION 1463. ORS 537.805 is amended to read:
537.805. Notwithstanding any other provision of ORS 537.801 to
537.809, an application governed by ORS 537.803 shall be
processed as follows:
(1) Upon determination that the application is acceptable, the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + } shall conduct a comprehensive review of
the application, at the applicant's expense.
(2) When the comprehensive review is complete, the commission
shall issue a preliminary analysis of the application that
addresses the factors under ORS 537.803 and any other information
the commission considers relevant. The preliminary analysis, or a
reasonable summary, shall be published at the applicant's expense
for three consecutive weeks in a newspaper of general circulation
in the basin of origin of the proposed appropriation, diversion
or impoundment.
(3) Following publication, the commission shall conduct a
public hearing at the applicant's expense, in the basin of
origin. The hearing shall be for comment on the factors analyzed
under ORS 537.803 and standards that otherwise apply to the
proposed appropriation or transfer.
(4) After considering the application, the information
generated during the comprehensive review of the application, all
comments received at the hearing and written comments received
within 20 days after the date of the public hearing, the
commission shall:
(a) If the application requires legislative approval under ORS
537.810, submit a report to the Legislative Assembly that
addresses all factors analyzed under ORS 537.803 and recommends
whether to approve or deny the application for use of water
outside the basin of origin; or
(b) If the application does not require legislative approval
under ORS 537.810, approve or deny the application in accordance
with the procedures and standards that otherwise govern the
application, giving due consideration to factors set forth in ORS
537.803.
SECTION 1464. ORS 537.809 is amended to read:
537.809. Before approving or recommending approval of an
application subject to ORS 537.803, the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + }
shall reserve an amount of water adequate for future needs in the
basin of origin, including an amount sufficient to protect public
uses, and subordinate the out-of-basin use to that reservation.
SECTION 1465. ORS 537.835 is amended to read:
537.835. (1) Pursuant to the provisions of ORS 537.810, consent
is hereby given to the City of Walla Walla, a municipal
corporation of the State of Washington, to appropriate, impound
and divert certain waters from Mill Creek, a tributary of the
Walla Walla River, located in Township 6 North, Range 38, E.W.M.,
Umatilla County, Oregon, for the beneficial use of both the State
of Oregon and within the City of Walla Walla, State of
Washington, subject to the following terms and conditions:
(a) The City of Walla Walla shall pay the entire cost of
constructing and maintaining this project; and
(b) The City of Walla Walla shall employ only residents and
inhabitants of the State of Oregon in the construction and
maintenance of the project.
(2) The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } may from time to time direct
that a designated portion of the impounded waters shall be held
in the State of Oregon for fire protection, for use by Oregon
residents, for wildlife habitat needs, and to maintain proper
streamflow during the summer months.
(3) Prior to commencing construction, the City of Walla Walla
shall make application for such appropriation, impoundment and
diversion to the { - Water Resources - } commission and such
appropriation, impoundment and diversion shall be allowed upon
such additional terms, conditions, reservations, restrictions and
provisions, including minimum streamflow, as the { - Water
Resources - } commission shall impose for the protection and
benefit of the State of Oregon.
SECTION 1466. ORS 537.840 is amended to read:
537.840. Upon receiving legislative permission to appropriate
waters under ORS 537.801 to 537.860, the permittee, upon filing
in the { - Water Resources Department a certified copy of the
Act, certified to - } { + Oregon Department of Natural
Resources a copy of the Act that has been certified + }by the
Secretary of State, may proceed to obtain an appropriation of
waters in the manner provided by the laws of this state for the
appropriation of waters for beneficial use, subject to all
existing rights and valid prior appropriations and subject to the
terms, conditions, exceptions, reservations, restrictions and
provisions of such legislative consent.
SECTION 1467. ORS 537.855 is amended to read:
537.855. (1) Pursuant to the provisions of ORS 537.810, consent
is hereby given to any domestic water supply district formed
under ORS chapter 264 to permit the diversion of water for use on
property a portion of which is within a state adjoining Oregon,
subject to the following conditions:
(a) The majority of the property is within Oregon.
(b) The property is developed with economic benefit to Oregon
as well as to the adjoining state, in the judgment of the
domestic water supply district.
(c) The costs of the diversion are borne by the developer or
owner of the property.
(d) The developer employs only residents of Oregon in the
construction necessary for the diversion of water.
(2) The diversion of water under this section shall be subject
to additional terms, conditions, reservations, restrictions and
provisions as the { - Water Resources Commission - } { +
Oregon Natural Resources Commission + } shall impose for the
protection and benefit of the State of Oregon.
SECTION 1468. ORS 537.880 is amended to read:
537.880. (1) The activity of drilling geotechnical holes is
declared to be an activity affecting the public welfare, health
and safety. In order to enable this state to protect the welfare,
health and safety of its { - citizens - } { + residents + },
any person that drills a geotechnical hole shall keep a log of
each geotechnical hole that is drilled and submit a report to the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + } within 30 days after the completion of
the drilling.
(2) This section applies to geotechnical holes that are:
(a) Greater than 18 feet deep;
(b) Within 50 feet of a water supply or a monitoring well;
(c) Used to determine water quality and open less than 72
hours; or
(d) Drilled in an area known or reasonably suspected to be
contaminated.
SECTION 1469. ORS 537.885 is amended to read:
537.885. The person responsible for the drilling of a
geotechnical hole for which a report is required under ORS
537.880 must have:
(1) A current monitoring well constructor's license as
specified in rules adopted by the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + };
(2) A current water supply well constructor's license as
specified in rules adopted by the commission;
(3) A current certificate of registration as a geologist issued
under ORS 672.505 to 672.705; or
(4) A current certificate of registration as an engineer issued
under ORS 672.002 to 672.325.
SECTION 1470. ORS 537.890 is amended to read:
537.890. (1) The { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } may prescribe by
rule the form, contents, filing deadline and other requirements
for the report required under ORS 537.880.
(2)(a) Except as provided in paragraph (b) of this subsection,
each report required to be submitted under ORS 537.880 must be
accompanied by a recording fee of $25.
(b) If more than one geotechnical hole is drilled within seven
days at the same project site, each report for each geotechnical
hole drilled after the first geotechnical hole must be
accompanied by a recording fee of $10.
(3) Fees collected under this section shall be deposited to the
{ - Water Resources Department Geotechnical Fund - }
{ + Oregon Natural Resources Fund. Moneys deposited in the fund
under this subsection are continuously appropriated to the Oregon
Department of Natural Resources for the administration of duties,
functions and powers related to geotechnical holes + }.
SECTION 1471. ORS 537.992 is amended to read:
537.992. (1) In addition to any other remedy provided by law,
the { - Water Resources Commission - } { + Oregon Natural
Resources Commission + } may impose a civil penalty against any
person who, in the construction of a well, violates any provision
of ORS 537.747 to 537.795 and 537.992, or any rule promulgated
pursuant thereto. A civil penalty shall be in an amount
determined by the commission in accordance with the rules adopted
under subsection (2) of this section. However, the commission
shall not impose a civil penalty under this section if the
commission, by exercising other authority granted under ORS
537.505 to 537.795 and 537.992, causes the person to comply with
the provisions of ORS 537.747 to 537.795 and 537.992 or rules
adopted thereunder.
(2) The commission shall adopt by rule a schedule of penalties
for violation of ORS 537.747 to 537.795 and 537.992, not to
exceed $1,000 for each occurrence defined in the rules as a major
violation, and not to exceed $250 for each occurrence defined in
the rules as a minor violation. Under no circumstances may a
penalty for a violation of ORS 537.762 or 537.765 exceed $250.
(3) Civil penalties under this section shall be imposed as
provided in ORS 183.745.
(4) All amounts recovered under this section shall be deposited
in the General Fund.
SECTION 1472. ORS 538.010 is amended to read:
538.010. (1) The waters of Ditch Creek which were diverted to
and became a part of the waters of Willow Creek, under the
provisions of chapter 324, Oregon Laws 1939, are subject to the
same rights of use and appropriation as the original waters of
Willow Creek.
(2) The right of the county court of Morrow County to divert
and store the waters of Ditch Creek { - , acquired under the
certificate issued by the Water Resources Director licensing such
diversion and storage, - } shall date from the time the
application to divert and store such waters was filed. The waters
shall be used for the purposes, in the manner and under the
conditions set forth in the certificate, for such time as the use
is for the public interest. If the waters are not used under the
license for a five-year period, the license shall expire.
SECTION 1473. ORS 538.125 is amended to read:
538.125. All appropriations made under the provisions of
section 2, chapter 480, Oregon Laws 1965, shall become vested
when completed as provided by ORS 537.250. Any person having
obtained a vested water right prior to April 19, 1967, under the
provisions of section 2, chapter 480, Oregon Laws 1965, may apply
to the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + } for an increase of vested water rights,
as provided by ORS chapter 537.
SECTION 1474. ORS 538.410 is amended to read:
538.410. All rights to the waters of the lakes, rivers and
streams of this state acquired before February 24, 1909, for the
purposes of municipal water supply are confirmed, and no rights
acquired under the Water Rights Act (as defined in ORS 537.010)
shall impair the rights of any municipal corporation to waters
taken before February 24, 1909. The { - Water Resources
Commission - } { + Oregon Natural Resources Commission + }
shall reject, or grant subject to municipal use, all applications
where, in the commission's judgment, the appropriation of the
waters applied for impairs a municipal water supply. Municipal
corporations of the state { - , on request of the Water
Resources Commission, - } shall furnish a statement of the
amount and source of the municipal water supply, with probable
increase or extension of the same { + , when the commission
requests a statement + }.
SECTION 1475. ORS 538.450 is amended to read:
538.450. (1) Subject to water rights existing on March 8, 1941,
there is granted to the City of Pendleton, Umatilla County, and
its water commission, the exclusive right to use for public or
municipal purposes or use, or for the general use and benefit of
people within or without the city, all waters of the north fork
of the Umatilla River, the springs at the head which form the
stream, and its tributaries to the confluence of the north fork
with the main stream of the Umatilla River in the northwest
quarter of section 22, township 3 north of range 37 east of the
Willamette Meridian, which north fork is a tributary of the
Umatilla River situated in Umatilla County.
(2) The City of Pendleton, its water commission, any of the
city's agents, agencies and officers, and others on its behalf,
may appropriate all such waters for these purposes and uses for
the benefit and use of the city, as above set forth, either by
the city in its own name, or by any of its agents, agencies or
officers or by any other persons on its behalf.
(3) No person shall appropriate or be granted a permit to the
use of any of such waters, except as provided in this section.
But the City of Pendleton may, under this grant, divert such
waters from their watershed and convey them to the city and
elsewhere for use by it for public or municipal purposes or use
or for the general use and benefit of people within or without
the city. All of such waters are withdrawn from future
appropriation, except for use and benefit of the city as set
forth in this section.
(4) The point of diversion of a water right granted under this
section may be exercised at the main stem of the Umatilla River
situated in Umatilla County to a point not below the westerly
city limit of the City of Pendleton.
(5) Prior to exercising the right granted under this section,
the City of Pendleton shall submit to the { - Water Resources
Department - } { + Oregon Department of Natural Resources + } a
notice of intent to exercise the right. The notice of intent
shall be made on a form prescribed by the department and shall
set forth:
(a) The name and mailing address of the applicant;
(b) The source of the water supply including the name and
mailing address of any owner of the land upon which the source of
the water supply is located;
(c) The nature and the amount of the proposed use;
(d) The time within which construction of the right is proposed
to begin;
(e) The time required to complete construction of the right;
(f) The time required for the complete application of the water
to the proposed beneficial use;
(g) The point of diversion of the exercise of the right; and
(h) Any other information required by the department that is
necessary to understand the nature of the proposed project.
(6) Prior to submitting a notice of intent pursuant to
subsection (5) of this section, the City of Pendleton shall hold
a public meeting in the water basin in which the right is located
to discuss the proposed project and receive comments from the
public.
(7) Within 14 days after receiving a notice of intent submitted
pursuant to subsection (5) of this section, the department shall,
in the weekly notice published by the department, give public
notice of the submission of the notice of intent.
(8) The Confederated Tribes of the Umatilla Indian Reservation
and the City of Pendleton have entered into an agreement
addressing the development and use of the City of Pendleton's
water rights in the Umatilla River and the impact on tribal
interests from such development. The agreement includes
implementation of the minimum streamflow in the main stem of the
Umatilla River resulting from the exercise by the City of
Pendleton of its surface water right of the north fork of the
Umatilla River under this section. The City of Pendleton shall
exercise such right consistent with the agreement or successor
agreements between the City of Pendleton and the tribes provided
in this subsection. In no event will the City of Pendleton
exercise the right granted under this section so as to reduce
streamflows in the Umatilla River to be less than state in-stream
water rights for the Umatilla River existing as of January 1,
2002.
SECTION 1476. ORS 539.005 is amended to read:
539.005. (1) The Legislative Assembly declares that it is the
purpose of this chapter to set forth the procedures for carrying
out a general stream adjudication in Oregon.
(2) In accordance with the applicable provisions of ORS chapter
183, the { - Water Resources Director - } { + Director of the
Oregon Department of Natural Resources + } shall adopt rules
necessary to carry out the provisions of this chapter.
SECTION 1477. ORS 539.010 is amended to read:
539.010. (1) Actual application of water to beneficial use
prior to February 24, 1909, by or under authority of any riparian
proprietor or the predecessors in interest of the riparian
proprietor, shall be deemed to create in the riparian proprietor
a vested right to the extent of the actual application to
beneficial use; provided, such use has not been abandoned for a
continuous period of two years.
(2) Where any riparian proprietor, or any person under
authority of any riparian proprietor or the predecessor in
interest of the riparian proprietor, was, on February 24, 1909,
engaged in good faith in the construction of works for the
application of water to a beneficial use, the right to take and
use such water shall be deemed vested in the riparian proprietor;
provided, that the works were completed and the water devoted to
a beneficial use within a reasonable time after February 24,
1909. The { - Water Resources Director - } { + Director of
the Oregon Department of Natural Resources + }, in the manner
provided in subsection (5) of this section, may determine the
time within which the water shall be devoted to a beneficial use.
The right to water shall be limited to the quantity actually
applied to a beneficial use within the time so fixed by the
director.
(3) Nothing contained in the Water Rights Act (as defined in
ORS 537.010) shall affect relative priorities to the use of water
among parties to any decree of the courts rendered in causes
determined or pending prior to February 24, 1909.
(4) The right of any person to take and use water shall not be
impaired or affected by any provisions of the Water Rights Act
(as defined in ORS 537.010) where appropriations were initiated
prior to February 24, 1909, and such appropriators, their heirs,
successors or assigns did, in good faith and in compliance with
the laws then existing, commence the construction of works for
the application of the water so appropriated to a beneficial use,
and thereafter prosecuted such work diligently and continuously
to completion. However, all such rights shall be adjudicated in
the manner provided in this chapter.
(5) The director shall, for good cause shown upon the
application of any appropriator or user of water under an
appropriation of water made prior to February 24, 1909, or in the
cases mentioned in subsections (2) and (4) of this section, where
actual construction work was commenced prior to that time or
within the time provided in law then existing, prescribe the time
within which the full amount of the water appropriated shall be
applied to a beneficial use. In determining said time the
director shall grant a reasonable time after the construction of
the works or canal or ditch used for the diversion of the water,
and in doing so, the director shall take into consideration the
cost of the appropriation and application of the water to a
beneficial purpose, the good faith of the appropriator, the
market for water or power to be supplied, the present demands
therefor, and the income or use that may be required to provide
fair and reasonable returns upon the investment. For good cause
shown the director may extend the time.
(6) Where appropriations of water attempted before February 24,
1909, were undertaken in good faith, and the work of construction
or improvement thereunder was in good faith commenced and
diligently prosecuted, such appropriations shall not be set aside
or voided in proceedings under this chapter because of any
irregularity or insufficiency of the notice by law, or in the
manner of posting, recording or publication thereof.
(7) In any proceeding to adjudicate water rights under this
chapter, the { - Water Resources Department - } { + Oregon
Department of Natural Resources + } may adjudicate federal
reserved rights for the water necessary to fulfill the primary
purpose of the reservation or any federal water right not
acquired under ORS chapter 537 or ORS 540.510 to 540.530.
(8) All rights granted or declared by the Water Rights Act (as
defined in ORS 537.010) shall be adjudicated and determined in
the manner and by the tribunals provided therein. The Water
Rights Act shall not be held to bestow upon any person any
riparian rights where no such rights existed prior to February
24, 1909.
SECTION 1478. ORS 539.015 is amended to read:
539.015. Each claimant or owner who files a statement and proof
of claim form or a registration statement shall be required to
certify to the statements of the claimant or owner under oath.
The { - Water Resources Director - } { + Director of the
Oregon Department of Natural Resources + } or the authorized
assistant of the director may administer such oaths, which shall
be done without charge, as also shall be the furnishing of blank
forms for the statement.
SECTION 1479. ORS 539.021 is amended to read:
539.021. (1) The { - Water Resources Director - }
{ + Director of the Oregon Department of Natural Resources + }
upon the motion of the director or, in the discretion of the
director, upon receipt of a petition from one or more
appropriators of surface water from any natural watercourse in
this state shall make a determination of the relative rights of
the various claimants to the waters of that watercourse.
(2) If an action is brought in the circuit court for
determination of rights to the use of water, the case may, in the
discretion of the court, be transferred to the director for
determination as provided in this chapter.
SECTION 1480. ORS 539.030 is amended to read:
539.030. The { - Water Resources Director - } { + Director
of the Oregon Department of Natural Resources + } shall prepare a
notice, setting forth the date when the director or the assistant
of the director will begin such investigation as may be necessary
for a proper determination of the relative rights of the various
claimants to the use of the waters of the stream. The notice
shall be published in two issues of one or more newspapers having
general circulation in the counties in which the stream is
situated, the last publication of the notice to be at least 10
days prior to the date set in the notice for the beginning of the
investigation by the director or the assistant of the director.
SECTION 1481. ORS 539.040 is amended to read:
539.040. (1) As soon as practicable after the examination and
measurements are completed, as described in ORS 539.120, the
{ - Water Resources Director - } { + Director of the Oregon
Department of Natural Resources + } shall prepare a notice
setting forth a place and time certain when the director or the
authorized assistant of the director shall begin taking testimony
as to the rights of the various claimants to the use of the
waters of the stream or its tributaries. The notice shall be
published in two issues of one or more newspapers having general
circulation in the counties in which the stream is situated, the
last publication of the notice to be at least 30 days prior to
the beginning of taking testimony by the director or the
authorized assistant of the director.
(2) The director shall also send by registered mail or by
certified mail with return receipt to each claimant or owner who
filed with the director a registration statement as provided in
ORS 539.240 and to the Attorney General of the United States or
the designated representative of the Attorney General of the
United States, on behalf of the United States and its agencies
and as trustee for the Indian tribes, a notice similar to that
provided in subsection (1) of this section setting forth the date
when the director or the authorized assistant of the director
will take testimony as to the rights to the use of the water of
the stream. The notice must be mailed at least 30 days prior to
the date set therein for taking testimony.
(3)(a) For purposes of the Klamath Basin adjudication, the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + } will provide notice, substantially like
that specified in subsection (2) of this section, to claimants or
owners who desire to claim a water right under this chapter, or
to contest the claims of others, and have so notified the
director. The notice shall be accompanied by a blank form on
which the claimant or owner shall present in writing all of the
particulars necessary for determination of the right of the
claimant or owner to contest the claims of others or to the use
of the waters of a stream to which the claimant or owner lays
claim. That form shall require substantially the same information
required in a registration statement, as provided in ORS 539.240
(2), except that the map need not be prepared by a certified
water rights examiner, as required by ORS 539.240 (2)(d).
(b) In the already adjudicated areas of the Klamath Basin, the
notice provided to holders of permitted or certificated surface
water rights acquired under ORS chapter 537 will specify that
they may contest the statement and proof of claims of others made
under this chapter, but only in the unadjudicated areas of the
Klamath Basin.
SECTION 1482. ORS 539.070 is amended to read:
539.070. Upon the date named in the notice for taking
testimony, the { - Water Resources Director - } { + Director
of the Oregon Department of Natural Resources + } or the
authorized assistant of the director shall begin taking testimony
and shall continue until completed. But the director may adjourn
the taking of testimony from time to time and from place to
place, to suit the convenience of those interested.
SECTION 1483. ORS 539.081 is amended to read:
539.081. (1) At the time the owner or registrant submits a
registration statement under ORS 539.240 or, if a registration
statement is not filed, when a statement and proof of claim is
filed pursuant to notice by the { - Water Resources
Director - } { + Director of the Oregon Department of Natural
Resources + } under ORS 539.030, the owner or registrant shall
pay a fee as follows:
(a) If for irrigation use, $2 for each acre of irrigated lands
up to 100 acres and $1 for each acre in excess of 100 acres. The
minimum fee for any owner or registrant for irrigation use shall
be $30.
(b) If for power use, $2 for each theoretical horsepower up to
100 horsepower, 50 cents for each horsepower in excess of 100 up
to 500 horsepower, 35 cents for each horsepower in excess of 500
horsepower up to 1,000 horsepower and 25 cents for each
horsepower in excess of 1,000 horsepower, as set forth in the
proof. The minimum fee for any owner or registrant for power use
shall be $200.
(c) If for mining or any other use, $200 for the first
second-foot or fraction of the first second-foot and $50 for each
additional second-foot.
(2) The fees under subsection (1) of this section shall not
apply to any federally recognized Indian tribe, or to the United
States acting as trustee for such a tribe, claiming, under ORS
539.010, an undetermined vested right to the use of surface water
for any nonconsumptive and nondiverted in-stream use to satisfy
tribal hunting, fishing or gathering rights.
(3) If the registration statement shows that the water right
was initiated by making application for a permit under the
provisions of ORS chapter 537, the owner or registrant shall be
given credit for the money paid as examination and recording
fees. A credit under this subsection shall be allowed only if
the application under ORS chapter 537 was for a permit to
appropriate water to be applied to the same parcel of land or for
the same use as set forth in the registration statement.
(4) All fees paid under this section shall be deposited into
the General Fund of the State Treasury and credited to an account
of the { - Water Resources Department - } { + Oregon
Department of Natural Resources + }. The fees shall be used to
pay for the expenses of the department to:
(a) Register claims to undetermined vested rights or federal
reserved rights under ORS 539.230 and 539.240; and
(b) Determine claims filed or registered under ORS 539.230 and
539.240.
(5) No registration statement or statement and proof of claim
shall be accepted for filing unless the registration statement or
claim is accompanied by the fee in the amount set forth in this
section. If the federal government is determined to be immune
from the payment of such fees, the director may elect to accept a
federal claim for filing without the accompanying fees.
SECTION 1484. ORS 539.090 is amended to read:
539.090. Upon the completion of the taking of testimony by the
{ - Water Resources Director - } { + Director of the Oregon
Department of Natural Resources + }, the director shall at once
give notice by registered mail or by certified mail with return
receipt to the various claimants and to any party who has
notified the director that the party wishes to contest the claims
of others, that all of the evidence will be open to inspection of
the various claimants or owners. The notice shall specify the
times when and the places where the evidence will be open to
inspection, and the director shall keep the evidence open for
inspection at the specified times and places. The earliest time
for inspection shall be at least 10 days after mailing the
notice; and, in the aggregate, the hours during which the
director is to keep the evidence open to inspection shall at
least equal 80 hours, counting only the hours between 8 a.m. and
5 p.m. during any day of the week except Sunday. The director
shall also state in the notice the county in which the
determination will be heard by the circuit court; provided, that
the cause shall be heard in the county in which the stream or
some part thereof is situated.
SECTION 1485. ORS 539.100 is amended to read:
539.100. Any person owning any irrigation works, or claiming
any interest in the stream involved in the determination shall be
a party to, and bound by, the adjudication. Any party who desires
to contest any of the rights of the persons who have submitted
their evidence to the { - Water Resources Director - }
{ + Director of the Oregon Department of Natural Resources + }
as provided in ORS 539.021 to 539.090 shall, within 15 days after
the expiration of the period fixed in the notice for public
inspection, or within such extension of the period, not exceeding
20 days, as the director may allow, notify the director in
writing, stating with reasonable certainty the grounds of the
proposed contest, which statement shall be verified by the
affidavit of the contestant, the agent or attorney of the
contestant. A party not claiming an undetermined vested right
under this chapter or not contesting the claim of another need
not participate further in the proceeding, nor be served with
further notices or documents regarding the adjudication. Upon the
filing of a statement of contest, service thereof shall be made
by the contestant upon the contestee by mailing a copy by
registered mail or by certified mail, return receipt requested,
addressed to the contestee or to the authorized agent or attorney
of the contestee at the post-office address of the contestee as
stated in the statement and proof of claim of the contestee.
Proof of service shall be made and filed with the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + } by the contestant as soon as possible after
serving the copy of statement of contest.
SECTION 1486. ORS 539.110 is amended to read:
539.110. The { - Water Resources Director - } { + Director
of the Oregon Department of Natural Resources + } shall fix the
time and a convenient place for hearing the contest, and shall
notify the contestant and the person whose rights are contested
to appear before the director or the authorized assistant of the
director at the designated time and place. The date of hearing
shall not be less than 30 nor more than 60 days from the date the
notice is served on the parties. The notice may be served
personally or by registered or certified mail, return receipt
requested, addressed to the parties at their post-office
addresses as stated in the statement and proof of claimant. The
director may adjourn the hearing from time to time upon
reasonable notice to all the parties interested; may issue
subpoenas and compel the attendance of witnesses to testify,
which subpoenas shall be served in the same manner as subpoenas
issued out of the circuit court; may compel the witnesses so
subpoenaed to testify and give evidence in the matter; and may
order the taking of depositions and issue commissions therefor in
the same manner as depositions are taken in the circuit court.
The witnesses shall receive fees as provided in ORS 44.415 (2),
the costs to be taxed in the same manner as are costs in suits in
equity. The evidence in the proceedings shall be confined to the
subjects enumerated in the notice of contest. The burden of
establishing the claim shall be upon the claimant whose claim is
contested. The evidence may be taken by a duly appointed
reporter.
SECTION 1487. ORS 539.120 is amended to read:
539.120. The { - Water Resources Director - } { + Director
of the Oregon Department of Natural Resources + }, or a qualified
assistant, shall proceed at the time specified in the notice to
the parties on the stream given as provided in ORS 539.030, to
make an examination of the stream and the works diverting water
therefrom used in connection with water rights subject to this
chapter, for which a registration statement has been filed as
provided in ORS 539.240. The examination shall include the
measurement of the discharge of the stream and of the capacity of
the various diversion and distribution works, and an examination
and approximate measurement of the lands irrigated from the
various diversion and distribution works. The director shall take
such other steps and gather such other data and information as
may be essential to the proper understanding of the relative
rights of the parties interested. The observations and
measurements shall be made a matter of record in the { - Water
Resources Department - } { + Oregon Department of Natural
Resources + }. The department shall make or have made a map or
plat on a scale of not less than one inch to the mile, showing
with substantial accuracy the course of the stream, the location
of each diversion point and each ditch, canal, pipeline or other
means of conveying the water to the place of use, and the
location of lands irrigated, or in connection with which the
water is otherwise used, within each legal subdivision.
SECTION 1488. ORS 539.130 is amended to read:
539.130. (1) As soon as practicable after the compilation of
the data the { - Water Resources Director - } { + Director of
the Oregon Department of Natural Resources + } shall make and
cause to be entered of record in the { - Water Resources
Department - } { + Oregon Department of Natural Resources + }
findings of fact and an order of determination determining and
establishing the several rights to the waters of the stream. The
original evidence gathered by the director, and certified copies
of the observations and measurements and maps of record, in
connection with the determination, as provided for by ORS
539.120, together with a copy of the order of determination and
findings of fact of the director as they appear of record in the
{ - Water Resources - } department, shall be certified to by
the director and filed with the clerk of the circuit court
wherein the determination is to be heard. A certified copy of the
order of determination and findings shall be filed with the
county clerk of every other county in which the stream or any
portion of a tributary is situated.
(2) Upon the filing of the evidence and order with the court
the director shall procure an order from the court, or any judge
thereof, fixing the time at which the determination shall be
heard in the court, which hearing shall be at least 40 days
subsequent to the date of the order. The clerk of the court
shall, upon the making of the order, forthwith forward a
certified copy to the department by registered mail or by
certified mail with return receipt.
(3) The department shall immediately upon receipt thereof
notify by registered mail or by certified mail with return
receipt each claimant or owner who has appeared in the proceeding
of the time and place for hearing. Service of the notice shall be
deemed complete upon depositing it in the post office as
registered or certified mail, addressed to the claimant or owner
at the post-office address of the claimant or owner, as set forth
in the proof of the claimant or owner theretofore filed in the
proceeding. Proof of service shall be made and filed with the
circuit court by the department as soon as possible after mailing
the notices.
(4) The determination of the department shall be in full force
and effect from the date of its entry in the records of the
department, unless and until its operation shall be stayed by a
stay bond as provided by ORS 539.180.
SECTION 1489. ORS 539.140 is amended to read:
539.140. Upon the final determination of the rights to the
waters of any stream, the { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } shall issue to
each person represented in the determination a certificate
setting forth the name and post-office address of the owner of
the right; the priority of the date, extent and purpose of the
right, and if the water is for irrigation purposes, a description
of the legal subdivisions of land to which the water is
appurtenant. The original certificate shall be mailed to the
owner and a record of the certificate maintained in the
{ - Water Resources - } department.
SECTION 1490. ORS 539.150 is amended to read:
539.150. (1) From and after the filing of the evidence and
order of determination in the circuit court, the proceedings
shall be like those in an action not triable by right to a jury,
except that any proceedings, including the entry of a judgment,
may be had in vacation with the same force and effect as in term
time. At any time prior to the hearing provided for in ORS
539.130, any party or parties jointly interested may file
exceptions in writing to the findings and order of determination,
or any part thereof, which exceptions shall state with reasonable
certainty the grounds and shall specify the particular paragraphs
or parts of the findings and order excepted to.
(2) A copy of the exceptions, verified by the exceptor or
certified to by the attorney for the exceptor, shall be served
upon each claimant who was an adverse party to any contest
wherein the exceptor was a party in the proceedings, prior to the
hearing. Service shall be made by the exceptor or the attorney
for the exceptor upon each such adverse party in person, or upon
the attorney if the adverse party has appeared by attorney, or
upon the agent of the adverse party. If the adverse party is a
nonresident of the county or state, the service may be made by
mailing a copy to that party by registered mail or by certified
mail with return receipt, addressed to the place of residence of
that party, as set forth in the proof filed in the proceedings.
(3) If no exceptions are filed the court shall, on the day set
for the hearing, enter a judgment affirming the determination of
the { - Water Resources Director - } { + Director of the
Oregon Department of Natural Resources + }. If exceptions are
filed, upon the day set for the hearing the court shall fix a
time, not less than 30 days thereafter, unless for good cause
shown the time be extended by the court, when a hearing will be
had upon the exceptions. All parties may be heard upon the
consideration of the exceptions, and the director may appear on
behalf of the state, either in person or by the Attorney General.
The court may, if necessary, remand the case for further
testimony, to be taken by the director or by a referee appointed
by the court for that purpose. Upon completion of the testimony
and its report to the director, the director may be required to
make a further determination.
(4) After final hearing the court shall enter a judgment
affirming or modifying the order of the director as the court
considers proper, and may assess such costs as it may consider
just except that a judgment for costs may not be rendered against
the United States. An appeal may be taken to the Court of Appeals
from the judgment in the same manner and with the same effect as
in other cases in equity, except that notice of appeal must be
served and filed within 60 days from the entry of the judgment.
SECTION 1491. ORS 539.160 is amended to read:
539.160. The clerk of the circuit court, upon the entry of any
decree by the circuit court or judge thereof, as provided by ORS
539.150, shall transmit a certified copy of the decree to the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources, + } where a record of the decree shall be
maintained. The
{ - Water Resources Director - } { + Director of the Oregon
Department of Natural Resources + } shall issue to the
watermasters instructions in compliance with the decree, and in
execution thereof.
SECTION 1492. ORS 539.170 is amended to read:
539.170. While the hearing of the order of the { - Water
Resources Director - } { + Director of the Oregon Department of
Natural Resources + } is pending in the circuit court, and until
a certified copy of the judgment, order or decree of the court is
transmitted to the director, the division of water from the
stream involved in the appeal shall be made in accordance with
the order of the director.
SECTION 1493. ORS 539.180 is amended to read:
539.180. At any time after the determination of the { - Water
Resources Director - } { + Director of the Oregon Department of
Natural Resources + } has been entered of record, the operation
thereof may be stayed in whole or in part by any party by filing
a bond or an irrevocable letter of credit issued by an insured
institution as defined in ORS 706.008 in the circuit court
wherein the determination is pending, in such amount as the judge
may prescribe, conditioned that the party will pay all damages
that may accrue by reason of the determination not being
enforced. Upon the filing and approval of the bond or letter of
credit, the clerk of the circuit court shall transmit to the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + } a certified copy of the bond or letter of
credit, which shall be recorded in the department records, and
the department shall give notice thereof to the watermaster of
the proper district.
SECTION 1494. ORS 539.190 is amended to read:
539.190. Within six months from the date of the decree of the
circuit court determining the rights upon any stream, or if
appealed, within six months from the date of the decree of the
circuit court on the decision of the Supreme Court, the
{ - Water Resources Director - } { + Director of the Oregon
Department of Natural Resources + } or any party interested may
apply to the circuit court for a rehearing upon grounds to be
stated in the application. If in the discretion of the court the
application states good grounds for the rehearing, the circuit
court or judge shall make an order fixing a time and place when
the application shall be heard. The clerk of the circuit court
shall, at the expense of the petitioner, forthwith mail written
notice of the application to the director and to every party
interested, and state in the notice the time and place when the
application will be heard.
SECTION 1495. ORS 539.200 is amended to read:
539.200. The determinations of the { - Water Resources
Director - } { + Director of the Oregon Department of Natural
Resources + }, as confirmed or modified as provided by this
chapter in proceedings, shall be conclusive as to all prior
rights and the rights of all existing claimants upon the stream
or other body of water lawfully embraced in the determination.
SECTION 1496. ORS 539.210 is amended to read:
539.210. Whenever proceedings are instituted for determination
of rights to the use of any water, it shall be the duty of all
claimants interested therein to appear and submit proof of their
respective claims, at the time and in the manner required by law.
Any claimant who fails to appear in the proceedings and submit
proof of the claims of the claimant shall be barred and estopped
from subsequently asserting any rights theretofore acquired upon
the stream or other body of water embraced in the proceedings,
and shall be held to have forfeited all rights to the use of the
water theretofore claimed by the claimant. Any person interested
in the water of any stream upon whom no service of notice has
been had of the pendency of proceedings for determination of the
rights to the use of water of the stream, and who has had no
actual knowledge or notice of the pendency of the proceedings
may, at any time prior to the expiration of one year after entry
of the determination of the
{ - Water Resources Director - } { + Director of the Oregon
Department of Natural Resources + }, file a petition to intervene
in the proceedings. The petition shall contain, among other
things, all matters required by this chapter of claimants who
have been duly served with notice of the proceedings, and also a
statement that the intervenor had no actual knowledge or notice
of the pendency of the proceedings. Upon the filing of the
petition in intervention, the petitioner shall be allowed to
intervene upon such terms as may be equitable and thereafter
shall have all rights vouchsafed by this chapter to claimants who
have been duly served.
SECTION 1497. ORS 539.220 is amended to read:
539.220. Whenever the rights to the waters of any stream have
been determined as provided in this chapter and it appears by the
records of such determination that it had not been at one and the
same proceeding, then the { - Water Resources Director - }
{ + Director of the Oregon Department of Natural Resources + }
may open to public inspection all proofs or evidence of rights to
the water, and the findings of the director in relation thereto,
in the manner provided in ORS 539.090. Any person who then
desires to contest the claims or rights of other persons, as set
forth in the proofs or established by the director, shall proceed
in the manner provided for in ORS 539.100 and 539.110; provided,
that contests may not be entered into and shall not be maintained
except between claimants who were not parties to the same
adjudication proceedings in the original hearings.
SECTION 1498. ORS 539.230 is amended to read:
539.230. (1) In order to preserve information relating to
claims to undetermined vested rights as described in ORS 539.010
and federal reserved rights, the { - Water Resources
Director - } { + Director of the Oregon Department of Natural
Resources + } shall prepare a general notice stating the need for
any person, corporation or governmental agency claiming an
undetermined vested right, federal reserved right or a right
derived from such rights to file a registration statement as
required under ORS 539.240. The notice shall outline the process
for obtaining a blank registration statement and shall describe
the rights that may be claimed under this chapter.
(2) The notice required under subsection (1) of this section
shall be published at least two times in one or more newspapers
having general circulation in each county in which streams with
potentially vested rights or reserved rights that have not been
adjudicated under this chapter are located.
(3) In addition to the notice described under subsection (2) of
this section, in any rural county in which there is not a
newspaper having general circulation, the director shall use
additional methods of providing notice of the requirement to file
a registration statement. These methods may include but need not
be limited to holding public meetings, inserting announcements in
trade or organization newsletters, public service announcements
on local radio stations and informing the county extension agent
of the requirement.
SECTION 1499. ORS 539.240 is amended to read:
539.240. (1) Any person, corporation or governmental agency
claiming an undetermined vested right, federal reserved right or
right derived from such rights to appropriate surface water under
ORS 539.010 shall file in the office of the { - Water Resources
Department - } { + Oregon Department of Natural Resources + },
on or before December 31, 1992, a registration statement of the
claim.
(2) Upon request, the { - Water Resources Director - }
{ + Director of the Oregon Department of Natural Resources + }
shall make available a blank registration statement required
under subsection (1) of this section. The claimant shall complete
the registration statement by providing the information necessary
for determination of the claimed vested or reserved right. The
registration statement shall include at least the following:
(a) The name and mailing address of the claimant.
(b) The claimed beneficial use of the water and the amount
used.
(c) The stream from which the water is diverted.
(d) A map from a survey prepared by a water right examiner
certified under ORS 537.798 showing:
(A) The location of the point of diversion in reference to an
established corner of the United States Public Lands Survey or,
if within a platted and recorded subdivision, from an established
lot corner of the subdivision.
(B) The location of the place of use by quarter-quarter section
of the United States Public Lands Survey. If the use is for
irrigation, the number of acres irrigated within each
quarter-quarter section.
(e) The time of commencement of the claimed use of water.
(f) The times of beginning and completion of any division and
distribution works used to appropriate the claimed use of water
and the water carrying capacity of such works, if known.
(g) The location of the place of use by quarter-quarter section
of the United States Public Lands Survey. If the use is for
irrigation, the number of acres irrigated within each
quarter-quarter section during the first year of use and during
each subsequent year until the full amount of claimed use was
accomplished.
(h) The period of the year during which the claimed use of
water is usually made.
(3) The failure of any person, corporation or governmental
agency to file a registration statement for an undetermined
vested right or federal reserved right shall create a rebuttable
presumption that the claim has been abandoned.
(4) For good cause shown, any person who fails to file a
registration statement within the period set forth in subsection
(1) of this section may file within one year after December 31,
1992, a petition with the director requesting that the person be
given an opportunity to rebut the presumption that the person has
abandoned the claim. Upon the filing of such a petition, the
director may schedule a hearing to take testimony and evidence on
the date the water was applied to beneficial use or the director
may accept sworn statements in writing in support of such
petition. The director shall not deny a petition without first
holding a contested case hearing. If it appears after hearing or
from such sworn statements that the person has a use of water
that would be subject to registration under this chapter, the
director shall issue an order authorizing the person to file a
registration statement as described under subsection (1) of this
section. A person who files a petition under this subsection
shall submit with the petition a fee, the amount of which shall
be one and one-half times the amount the person would have
submitted under ORS 539.081 with a timely registration statement.
(5) The director shall accept for filing all registration
statements described in subsections (1) and (4) of this section
made in proper form when the statements are accompanied by the
fees prescribed in ORS 539.081. The director shall indorse the
date of receipt on each registration statement.
(6) The director shall examine each registration statement to
insure that the statement is complete and in proper form. If the
director determines the information required under subsection (2)
of this section is complete and in proper form, the director
shall:
(a) Enter the indorsed statement in the record of the
department;
(b) Mail a copy of the indorsed statement to the person filing
the registration statement; and
(c) Include the person or the properly designated assignee of
the person in any further proceeding to adjudicate the water
rights represented by the indorsed registration statement.
(7) Upon entry of the indorsed statement in the department's
records, the registrant is entitled to continue to appropriate
the surface water and apply it to beneficial use to the extent
and in the manner disclosed in the recorded registration
statement. However, the registrant shall not be entitled to the
benefits of an existing water right of record under ORS 540.045.
(8) No registration statement recorded under this section shall
be construed as a final determination of any matter stated
therein, nor shall the act of indorsement by the director
constitute a determination of the validity of the matters
contained in the registration statement. The right of the
registrant to appropriate surface water under a recorded
registration statement is subject to determination under ORS
539.010 to 539.240, and is not final or conclusive until so
determined. A right to appropriate surface water under a recorded
registration statement has a tentative priority from the date
claimed in the indorsed registration statement.
(9) Any indorsed registration statement may be assigned,
subject to the conditions in the registration statement, but no
such assignment will be binding, except upon the parties to the
assignment, unless filed with the department.
(10) Notwithstanding the filing deadline prescribed under
subsection (1) of this section, and the late filing period
allowed under subsection (4) of this section, if any person
submitted, before December 31, 1994, a registration statement or
other similar documentation claiming a right to appropriate
surface water under ORS 539.010, the director shall examine the
material submitted to determine if the documents filed would
substantially comply with the requirements of subsection (2) of
this section. If the director determines that the documents
substantially comply with the surface water registration filing
requirements of subsection (2) of this section, the director may
accept the registration. If the director determines that the
documents filed under this subsection are incomplete or if
additional information is required to comply with subsection (2)
of this section, or fees required under ORS 539.081 have not been
submitted, the director shall notify the claimant of the
deficiency, setting a date certain for submittal of the
information or fees. The time for submittal of additional
information or fees shall be not less than 30 days nor more than
180 days after the director notifies the claimant of the
deficiency. If the additional information or fees are not
submitted on or before the date certain, the registration
statement shall be considered void and shall be returned to the
claimant.
(11) The director shall adopt by rule a process and standards
for recognizing changes in the place of use, type of use or point
of diversion of water uses registered pursuant to this section.
SECTION 1500. ORS 539.310 is amended to read:
539.310. (1) The { - Water Resources Director - }
{ + Director of the Oregon Department of Natural Resources + }
may negotiate with representatives of any federally recognized
Indian tribe that may have a federal reserved water right claim
in Oregon and representatives of the federal government as
trustee for the federally recognized Indian tribe to define the
scope and attributes of rights to water claimed by the federally
recognized Indian tribe to satisfy tribal rights under treaty
between the United States and the tribes of Oregon. All
negotiations in which the director participates under this
section shall be open to the public.
(2) During negotiations conducted under subsection (1) of this
section, the director shall:
(a) Provide public notice of the negotiations;
(b) Allow for public input through the director; and
(c) Provide regular reports on the progress of the negotiations
to interested members of the public.
SECTION 1501. ORS 539.320 is amended to read:
539.320. When the { - Water Resources Director - }
{ + Director of the Oregon Department of Natural Resources + }
and the representatives of any federally recognized Indian tribe
that may have a federal reserved water right claim in Oregon and
the federal government have completed an agreement, the
{ - Water Resources - } director shall submit an original copy
of the agreement to the appropriate court. The copy shall be
signed by the { - Water Resources - } director on behalf of
the State of Oregon and by authorized representatives of the
Indian tribe and the federal government as trustee for the Indian
tribe.
SECTION 1502. ORS 539.330 is amended to read:
539.330. (1) Upon filing of the agreement with the appropriate
court under ORS 539.320, the { - Water Resources Director - }
{ + Director of the Oregon Department of Natural Resources + }
shall notify owners of water right certificates or permits that
may be affected by the agreement:
(a) That the agreement has been filed with the court; and
(b) Of the time and manner specified by the court for filing an
exception to the agreement.
(2) Unless notice by registered mail is required by the court,
the notice required under subsection (1) of this section may be
given by:
(a) Publication; or
(b) Any other method the director considers necessary.
SECTION 1503. ORS 539.340 is amended to read:
539.340. (1) An agreement negotiated under ORS 539.310 to
539.330 shall not be effective unless and until incorporated in a
final court decree, after the court has provided an opportunity
for an owner of a water right certificate or permit that may be
affected by the agreement or for a claimant in an adjudication
that may be affected by the agreement to submit an exception to
the agreement.
(2) If the court does not sustain an exception, the court shall
issue a final decree incorporating the agreement as submitted
without alteration.
(3) If the court sustains an exception to the agreement, the
court shall remand the agreement to the { - Water Resources
Director - } { + Director of the Oregon Department of Natural
Resources + } for further negotiation according to the provisions
of ORS 539.300 to 539.350, if desired by the parties to the
agreement.
SECTION 1504. ORS 539.350 is amended to read:
539.350. Within 180 days after the court remands the agreement
under ORS 539.340, the { - Water Resources Director - } { +
Director of the Oregon Department of Natural Resources + } shall
file with the court:
(1) An amended agreement complying with ORS 539.320, which
shall be subject to the procedure specified by ORS 539.330;
(2) A motion to dismiss the proceedings, which shall be granted
by the court; or
(3) A stipulated motion for a continuance for a period not to
exceed 180 days, within which period the parties shall submit to
the court an amended agreement, a motion to dismiss or a motion
for further continuance.
SECTION 1505. ORS 540.010 is amended to read:
540.010. The { - Water Resources Commission - } { + Oregon
Department of Natural Resources + } shall divide the state into
water districts, which shall be so constituted as to secure the
best protection to the claimants for water and the most
economical supervision on the part of the state. Water districts
shall not be created until necessary.
SECTION 1506. ORS 540.020 is amended to read:
540.020. (1) The { - Water Resources Director - }
{ + Director of the Oregon Department of Natural Resources + }
shall appoint one watermaster for each water district. The
watermaster shall hold office until removed by the director, and
shall be subject to any applicable provision of the State
Personnel Relations Law. The director shall fill all vacancies
which occur in the office.
(2) The director, or any duly authorized assistant, shall have
the powers and authority of a watermaster in the distribution of
water in any water district.
SECTION 1507. ORS 540.030 is amended to read:
540.030. The { - Water Resources Director - } { + Director
of the Oregon Department of Natural Resources + } shall:
(1) Have general control over the watermasters { + appointed
under ORS 540.020 + }.
(2) Execute the laws relative to the distribution of water and
perform other functions { - as may be - } assigned to the
director { + under this chapter + }.
SECTION 1508. ORS 540.045 is amended to read:
540.045. (1) Each watermaster shall:
(a) Regulate the distribution of water among the various users
of water from any natural surface or ground water supply in
accordance with the users' existing water rights of record in the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + }.
(b) Upon the request of the users, distribute water among the
various users under any partnership ditch, pipeline or well or
from any reservoir, in accordance with the users' existing water
rights of record in the department.
(c) Divide the waters of the natural surface and ground water
sources and other sources of water supply among the canals,
ditches, pumps, pipelines and reservoirs taking water from the
source for beneficial use, by regulating, adjusting and fastening
the headgates, valves or other control works at the several
points of diversion of surface water or the several points of
appropriation of ground water, according to the users' relative
entitlements to water.
(d) Attach to the headgate, valve or other control works the
watermaster regulates under paragraph (c) of this subsection, a
written notice dated and signed by the watermaster, setting forth
that the headgate, valve or other control works has been properly
regulated and is wholly under the control of the watermaster.
(e) Perform any other duties the { - Water Resources
Director - } { + Director of the Oregon Department of Natural
Resources + } may require.
(2) When a watermaster must rely on a well log or other
documentation to regulate the use or distribution of ground
water, the regulation shall be in accordance with ORS 537.545
(4).
(3) For purposes of regulating the distribution or use of
water, any stored water released in excess of the needs of water
rights calling on that stored water shall be considered natural
flow, unless the release is part of a water exchange under the
control of, and approved by, the watermaster.
(4) As used in this section, 'existing water rights of record'
includes all completed permits, certificates, licenses and ground
water registration statements filed under ORS 537.605 and related
court decrees.
SECTION 1509. ORS 540.050 is amended to read:
540.050. The district attorney shall appear on behalf of the
{ - Water Resources Director - } { + Director of the Oregon
Department of Natural Resources + } or any watermaster in any
case which may arise in the pursuance of the official duties of
the director or watermaster within the jurisdiction of the
district attorney.
SECTION 1510. ORS 540.075 is amended to read:
540.075. (1) The county court or board of county commissioners
of each county in which the water district of the watermaster is
located shall furnish the watermaster a suitable office and
office equipment.
(2) If a water district includes all or parts of two or more
counties, the office of the watermaster for the water district
shall be in the county designated by the { - Water Resources
Director - } { + Director of the Oregon Department of Natural
Resources + } and the county court or board of county
commissioners of that county shall provide a suitable office with
necessary office equipment for the watermaster.
SECTION 1511. ORS 540.080 is amended to read:
540.080. (1) With the approval of the { - Water Resources
Director - } { + Director of the Oregon Department of Natural
Resources + }, a watermaster may employ assistants to aid in the
discharge of the watermaster's duties. The assistants shall take
the same oath as the watermaster and shall obey the watermaster's
instructions. Compensation and actual and necessary traveling
expenses of an assistant shall be paid by the county court or
board of county commissioners upon certificates of the
watermaster by an order made at a regular term when sitting for
the transaction of county business. If no provision for such
payment is made, the assistant's compensation and expenses shall
be paid by the water users concerned, as provided in ORS 540.100
to 540.130.
(2) The term of service of an assistant watermaster may be
terminated at any time by the director or the watermaster.
SECTION 1512. ORS 540.130 is amended to read:
540.130. If no provision has been made for payment of the
assistant watermaster or expenses as provided in ORS 540.080,
before proceeding to make any distribution or division the
{ - Water Resources Director - } { + Director of the Oregon
Department of Natural Resources + } may require the water users
requesting the distribution or division to pay in advance the
estimated compensation and expenses involved in the work. The
director shall keep a true and full account of all moneys paid in
advance under this section. Upon the expiration of the period
for which the services are required, the director shall refund to
the water users any unexpended balance of the moneys paid in
advance.
SECTION 1513. ORS 540.135 is amended to read:
540.135. Any moneys collected under ORS 540.100 to 540.130 and
540.220 shall be paid to the { - Water Resources Director - }
{ + Director of the Oregon Department of Natural Resources + }
and deposited by the director in a revolving fund to be disbursed
for the purpose for which it was collected.
SECTION 1514. ORS 540.145 is amended to read:
540.145. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } may adopt rules to secure the
equal and fair distribution of water in accordance with the
rights of the various users. The rules shall apply to all water
rights that have been established:
(1) By court decree;
(2) Under an order of the commission or the { - Water
Resources Director - } { + Director of the Oregon Department of
Natural Resources + } in proceedings for the determination of
relative rights to the use of water; or
(3) Through permits to appropriate water or certificates of
water rights issued by the commission.
SECTION 1515. ORS 540.210 is amended to read:
540.210. (1) Whenever any water users from any ditch or
reservoir, either among themselves or with the owner thereof, are
unable to agree relative to the distribution or division of water
through or from the ditch or reservoir, either the owner or any
such water user may apply to the watermaster of the district in
which the ditch or reservoir is located, by written notice,
setting forth such facts, and asking the watermaster to take
charge of the ditch or reservoir for the purpose of making a just
division or distribution of water from it to the parties entitled
to the use thereof.
(2) The watermaster shall then take exclusive charge of the
ditch or reservoir, for the purpose of dividing or distributing
the water therefrom in accordance with the respective and
relative rights of the various users of water from the ditch or
reservoir, and shall continue the work until the necessity
therefor shall cease to exist.
(3) The distribution and division of water shall be made
according to the relative and respective rights of the various
users from the ditch or reservoir, as determined by the
{ - Water Resources Director - } { + Director of the Oregon
Department of Natural Resources + }, by decree of the circuit
court, or by written contract between all of the users filed with
the watermaster.
(4) The circuit court having jurisdiction may request the
watermaster of the district to take charge of any such ditch or
reservoir, and to enforce any decree respecting such ditch or
reservoir made under the jurisdiction of the court.
SECTION 1516. ORS 540.220 is amended to read:
540.220. (1) A watermaster may appoint an assistant to take
charge of the ditch, pipeline or reservoir involved in a
distribution or division of water under ORS 540.210. The
assistant watermaster shall be paid by the water users from the
ditch, pipeline or reservoir for the cost of the distribution.
The { - Water Resources Commission - } { + Oregon Natural
Resources Commission + } may require the water users to pay in
advance the estimated compensation and expenses of the assistant
involved in the distribution or division of the water.
(2) In the case of partnership ditches, pipelines or mutual
irrigation corporations organized for the benefit of the members
or stockholders, the expense of the assistant shall be paid by
the water users in proportion to the area of land for which each
water user is entitled to the use of water from the ditch,
pipeline or reservoir, so that each shall pay the same rate per
acre.
(3) In the case of ditches, pipelines and reservoirs
constructed and operated for sale or rental of water, the wages
and expense of the assistant shall be paid by the owner of the
ditch, pipeline or reservoir, unless otherwise provided in
written contracts with water users using water from the ditches,
pipelines and reservoirs involved in the distribution or division
of water.
SECTION 1517. ORS 540.310 is amended to read:
540.310. (1) The owner of any ditch or canal shall maintain to
the satisfaction of the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } a substantial
headgate at the point where the water is diverted. It shall be of
such construction that it can be locked and kept closed by the
watermaster.
(2) The owner shall construct and maintain, when required by
the commission, suitable measuring devices at such points along
the ditch as may be necessary to assist the watermaster in
determining the amount of water that is to be diverted into the
ditch from the stream, or taken from it by the various users.
(3) When necessary for the protection of other water users, the
commission may require flumes to be installed along the line of
any ditch.
SECTION 1518. ORS 540.320 is amended to read:
540.320. If any owner of irrigation works refuses or neglects
to construct and put in headgates, flumes or measuring devices,
as required under ORS 540.310, after 10 days' notice, the
watermaster may close the ditch, and it shall not be opened or
any water diverted from the source of supply, under the penalties
prescribed by law for the opening of headgates lawfully closed,
until the requirements of the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + } as
to such headgates, flumes or measuring devices have been complied
with.
SECTION 1519. ORS 540.330 is amended to read:
540.330. (1) Any owner or manager of a reservoir, located
across or upon the bed of a natural stream, shall construct and
maintain, when required by the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + }, a
measuring device below, and one above, the reservoir on each
stream or source of supply discharging into the reservoir, to
assist the watermaster in determining the amount of water to
which appropriators are entitled and thereafter diverting it for
their use.
(2) If any owner or manager of a reservoir located across the
bed of a natural stream neglects or refuses to put in a measuring
device after 10 days' notice by the commission, the watermaster
may open the sluicegate or outlet of the reservoir, and it shall
not be closed, under penalties of the law for changing or
interfering with headgates, until the requirements of the
commission as to such measuring devices are complied with.
SECTION 1520. ORS 540.340 is amended to read:
540.340. (1) Whenever it may be necessary for the protection of
other water users, the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } shall require every
owner or manager of a reservoir or diversion dam, located across
or upon the bed of a natural stream, to construct and maintain a
suitable outlet in the reservoir or diversion dam which will
allow the free passage of the natural flow of the stream. The
commission shall determine what constitutes a suitable outlet.
(2) If any owner or manager of a reservoir or diversion dam
refuses or neglects to construct or put in such outlet in the
reservoir or diversion dam after 10 days' notice by the
commission, the commission may close the ditch carrying water
from the reservoir or diversion dam and it shall not be opened or
any water diverted from the reservoir or diversion dam, under the
penalties prescribed by law for the opening of headgates lawfully
closed, until the requirements of the commission regarding such
outlet have been complied with.
SECTION 1521. ORS 540.350 is amended to read:
540.350. (1) No person, firm or private or municipal
corporation shall construct any dam, dike, or other hydraulic
structure or works, the failure of which the { - Water
Resources Commission - } { + Oregon Natural Resources
Commission + } finds would result in damage to life or property,
unless the commission has made an examination of the site and of
the plans and specifications and other features involved in the
construction of such works, and has approved them in writing.
(2) When a person, firm or private or municipal corporation
seeks the written approval of the { - Water Resources - }
commission, of the site, plans, specifications and features for a
dam more than 25 feet high at a site where there is an average
annual flow exceeding two cubic feet a second, that party must
demonstrate that the dam includes measures that make it readily
adaptable to power generation in a manner meeting statutory
requirements for the safe passage of fish. These measures shall
include the installation of a pressure conduit, penstock, drain
or similar water diversion system at the time the dam is built.
(3) A person, firm or private or municipal corporation seeking
approval for a dam described in subsection (2) of this section
need not make the showing required by that subsection if that
party demonstrates to the commission's satisfaction that:
(a) It is not likely the installation of hydroelectric
generating facilities at the proposed site would be feasible
anytime during the life of the proposed dam; or
(b) It would be more feasible to install hydroelectric
facilities after construction of the proposed dam.
(4) The commission's approval of the site, plans and
specifications, or other features involved in the construction,
maintenance and operation of any hydraulic works whatsoever shall
not relieve the owners of their legal responsibilities.
(5) The commission may make inspections of any hydraulic
structure, the site thereof, and of the plans and specifications,
and any other features involved in the construction, maintenance
and operation of the works. If, as a result of the inspections,
the commission considers any modifications necessary to insure
the safety of the works with reference to possible damage to life
or property, the commission shall notify the legal owners by
registered mail or by certified mail with return receipt, stating
why the works are unsafe. The notice shall set forth the
modifications necessary to insure the safety of the works in so
far as it affects possible damage to life or property. The notice
also shall set a hearing at a time and place as will give the
owners a reasonable time to prepare for the hearing.
SECTION 1522. ORS 540.360 is amended to read:
540.360. After the hearing the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + } may
issue a written order to the owners to make such modifications as
the commission considers necessary to insure the safety of the
works with reference to possible damage to life or property and
shall fix the time within which work shall begin in good faith
and the time for completion. The owners, upon receipt of the
order, shall make the modifications ordered within the time limit
prescribed or shall initiate an appeal as above provided.
SECTION 1523. ORS 540.370 is amended to read:
540.370. (1) If the owners fail to make the modifications
within the time limits set by the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + }, or
to institute their appeal or to comply with the decree of the
appellate court in case an appeal is taken, the commission shall
issue an order in writing to the owners directing that the gates
be kept open, or an opening made in the dam if necessary, or that
the structure shall not be used for the storage, restraint or
conveyance of water until the modifications have been made.
(2) No owner shall refuse to comply with the orders of the
commission or the decree of an appellate court.
(3) In case of noncompliance, the commission shall direct the
watermaster or other authorized assistant to carry out the
orders, or the commission may file a copy of the commission's
order with the Attorney General or with the district attorney of
the county within which the works are located. The Attorney
General or district attorney shall bring proceedings in the name
of the state, in the circuit court of the county within which the
works or any part thereof are situated, to abate the offending
works. The court, after a full hearing on the matter, may
declare the works a nuisance and order their removal, or order
any repairs or alterations, and may enforce its orders in the
manner provided by law.
SECTION 1524. ORS 540.380 is amended to read:
540.380. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } may accept the reports of
consulting engineers, geologists or other specialists whom the
owners of the works in question may have employed. But if, for
any reason, the commission considers the reports insufficient,
the commission may employ consulting engineers, geologists or
other specialists
{ - outside the Water Resources Department - } { + who are
not employed by the Oregon Department of Natural Resources + } to
make special examinations and inspections and to prepare reports
for the commission's guidance. The cost of such special
examinations, inspections and reports shall be paid by the
commission from any funds at the commission's disposal, or it may
be divided by mutual agreement between the state and the owners.
SECTION 1525. ORS 540.390 is amended to read:
540.390. Should any person residing on or owning land in the
neighborhood of any dam, dike or other hydraulic structure after
completion, or in course of construction, apply to the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + } in writing desiring an inspection of the
works, the commission may order an inspection, or the commission
may make such order on the commission's own motion. Before doing
so the commission may require the applicant for inspection to
deposit a sum of money sufficient to pay the expenses of an
inspection. If the application appears to the commission not to
have been justified the commission may cause the whole or part of
the expenses to be paid out of the deposit. If the application
appears to have been justified, the commission may require the
owner of the works to pay the whole or any part of the expenses
of the inspection, and it shall constitute a valid lien against
the works, which may be enforced in the same manner as provided
for the enforcement of mechanic's liens.
SECTION 1526. ORS 540.410 is amended to read:
540.410. Whenever the owner, manager or lessee of a reservoir
constructed under the provisions of the Water Rights Act, as
defined in ORS 537.010, desires to use the bed of a stream, or
other watercourse, to carry stored or impounded water from the
reservoir to the consumer of the water, the owner, manager or
lessee shall, in writing, notify the watermaster of the district
in which the stored or impounded water from the reservoir is to
be used, giving the date when it is proposed to discharge water
from the reservoir, its volume, and the names of all persons and
ditches entitled to its use. The watermaster shall then close, or
so adjust the headgates of all ditches from the stream or
watercourse, not entitled to the use of such stored water, as
will enable those having the right to secure the volume to which
they are entitled. The watermaster shall keep a true and just
account of the time spent in the discharge of the watermaster's
duties as defined in this section, and the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + } shall
present a bill of one-half the expense so incurred to the
reservoir owner, manager or lessee. If the owner, manager or
lessee neglects for 30 days, after presentation of the bill of
costs, to pay it, the costs shall be made a charge upon the
reservoir and the state shall have a preference lien therefor.
Upon notice from the commission, the Attorney General shall
foreclose the lien and collect the amount due, as provided in
this section, in the same manner as other liens on real property
are foreclosed.
SECTION 1527. ORS 540.435 is amended to read:
540.435. (1) In addition to any other authority of the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + } to order installation of a measuring
device, if the commission finds accurate water use information
necessary because of serious water management problems created by
ground water decline, unresolved user disputes or frequent water
shortages, the commission by rule may require a water right owner
using any surface or ground water source within the state to
install a totalizing measuring device and to submit annually a
water use report.
(2) Before the commission implements any requirements under
subsection (1) of this section the commission shall:
(a) Cause a hearing to be conducted in the affected area to
determine whether a serious management problem exists; and
(b) Allow any affected person an opportunity to present
alternative methods or devices that could be used to provide the
information necessary to manage the water resource or to
alleviate the water management problem.
(3) The watermaster may prohibit the diversion or use of water
by anyone who has failed to comply with a commission rule or
order requiring installation of measuring devices or submission
of a water use report.
SECTION 1528. ORS 540.505 is amended to read:
540.505. As used in ORS 540.505 to 540.585:
(1) 'District' means an irrigation district formed under ORS
chapter 545, a drainage district formed under ORS chapter 547, a
water improvement district formed under ORS chapter 552, a water
control district formed under ORS chapter 553 or a corporation
organized under ORS chapter 554.
(2) 'Primary water right' means the water right designated by
the { - Water Resources Commission - } { + Oregon Natural
Resources Commission + } as the principal water supply for the
authorized use, or if no designation has been made, the water
right designated by the applicant as the principal water supply
for the authorized use.
(3) 'Supplemental water right or permit' means an additional
appropriation of water to make up a deficiency in supply from an
existing water right. A supplemental water right or permit is
used in conjunction with a primary water right.
(4) 'Water use subject to transfer' means a water use
established by:
(a) An adjudication under ORS chapter 539 as evidenced by a
court decree;
(b) A water right certificate;
(c) A water use permit for which a request for issuance of a
water right certificate under ORS 537.250 has been received and
approved by the { - Water Resources - } commission under ORS
537.250; or
(d) A transfer application for which an order approving the
change has been issued under ORS 540.530 and for which proper
proof of completion of the change has been filed with the
{ - Water Resources - } commission.
SECTION 1529. ORS 540.510 is amended to read:
540.510. (1) Except as provided in subsections (2) to (8) of
this section, all water used in this state for any purpose shall
remain appurtenant to the premises upon which it is used and no
change in use or place of use of any water for any purpose may be
made without compliance with the provisions of ORS 540.520 and
540.530. However, the holder of any water use subject to transfer
may, upon compliance with the provisions of ORS 540.520 and
540.530, change the use and place of use, the point of diversion
or the use theretofore made of the water in all cases without
losing priority of the right theretofore established. A district
may change the place of use in the manner provided in ORS 540.572
to 540.580 in lieu of the method provided in ORS 540.520 and
540.530. When an application for change of the use or place of
use for a primary water right is submitted in accordance with
this section, the applicant also shall indicate whether the land
described in the application has an appurtenant supplemental
water right or permit. If the applicant also intends to transfer
the supplemental water right or permit, the applicant also shall
include the information required under ORS 540.520 (2) for the
supplemental water right or permit. If the applicant does not
include the supplemental water right or permit in the transfer
application, the { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } shall notify the
applicant that the supplemental water right or permit will be
canceled before the department issues the order approving the
transfer of the primary water right, unless within 30 days the
applicant modifies the application to include the supplemental
water right or permit or withdraws the application. The
department may approve the transfer of the supplemental water
right or permit in accordance with the provisions of ORS 540.520
and 540.530. The department shall not approve the transfer of a
supplemental water right or permit if the transfer would result
in enlargement of the original water right or injury to an
existing water right. If the department approves the transfer of
the primary water right but does not approve the transfer of the
supplemental water right or permit, the department shall notify
the applicant of the department's intent to cancel that portion
of the supplemental water right or permit described in the
transfer application before the department issues the primary
water right transfer order, unless the applicant withdraws the
transfer application within 90 days.
(2) Subject to the limitations in ORS 537.490, any right to the
use of conserved water allocated by the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + }
under ORS 537.470 may be severed from the land and transferred or
sold after notice to the commission as required under ORS
537.490.
(3)(a) Any water used under a permit or certificate issued to a
municipality, or under rights conferred by ORS 538.410 to
538.450, or under the registration system set forth in ORS
537.132, may be applied to beneficial use on lands to which the
right is not appurtenant if:
(A) The water is applied to lands which are acquired by
annexation or through merger, consolidation or formation of a
water authority, so long as the rate and use of water allowed in
the original certificate is not exceeded;
(B) The use continues to be for municipal purposes and would
not interfere with or impair prior vested water rights; or
(C) The use is authorized under a permit granted under ORS
468B.050 or 468B.053 and for which a reclaimed water registration
form has been filed under ORS 537.132.
(b) As used in this subsection, 'municipality' means a city, a
port formed under ORS 777.005 to 777.725, 777.915 to 777.953 and
778.010, a domestic water supply district formed under ORS
chapter 264, a water supplier as defined in ORS 448.115 or a
water authority formed under ORS chapter 450.
(4) Pursuant to the provisions of ORS 540.570 or 540.585, any
water used under a permit or certificate issued to a district may
be applied to beneficial use on lands within the district to
which the right is not appurtenant.
(5) The relocation of a point of diversion as necessary to
follow the movements of a naturally changing stream channel does
not constitute a change in point of diversion for purposes of ORS
540.520 if:
(a) The diversion point stays within 500 feet of the point of
diversion on record with the { - Water Resources - }
department;
(b) The change does not move the diversion point upstream or
downstream beyond the diversion point of another appropriator;
and
(c) { + If necessary, + } the diversion is provided with a
proper fish screen { - , if requested by the State Department of
Fish and Wildlife - } .
(6) In the event that government action results in or creates a
reasonable expectation of a change in the surface level of a
surface water source that impairs or threatens to impair access
to a point of diversion authorized by a water right permit,
certificate or decree, the owner of the water right may change
the point of diversion or add an additional point of diversion in
accordance with the provisions of this section in lieu of
complying with the requirements of ORS 540.520 and 540.530.
Before changing the point of diversion, the water right owner
shall provide written notice of the proposed change to the
{ - Water Resources - } department. Within 15 days after
receipt of such notice, the department shall provide notice by
publication in the department's public notice of water right
applications. Within 60 days after the department receives notice
from the owner, the
{ - Water Resources Director - } { + Director of the Oregon
Department of Natural Resources + }, by order, shall approve the
change unless the director finds the changes will result in
injury to other existing water rights. All other terms and
conditions of the water right shall remain in effect.
(7) The sale or lease of the right to the use of conserved
water under ORS 537.490 does not constitute a change of use or a
change in the place of use of water for purposes of ORS 540.520.
(8) Ground water applied to an exempt use as set forth in ORS
537.141 or 537.545 may be subsequently applied to land for
irrigation purposes under ORS 537.141 (1)(i) or 537.545 (1)(g)
without application for a change in use or place of use under
this section.
SECTION 1530. ORS 540.520 is amended to read:
540.520. (1) Except when the application is made under ORS
541.327 or when an application for a temporary transfer is made
under ORS 540.523, whenever the holder of a water use subject to
transfer for irrigation, domestic use, manufacturing purposes, or
other use, for any reason desires to change the place of use, the
point of diversion, or the use made of the water, an application
to make such change, as the case may be, shall be filed with the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + }.
(2) The application required under subsection (1) of this
section shall include:
(a) The name of the owner;
(b) The previous use of the water;
(c) A description of the premises upon which the water is used;
(d) A description of the premises upon which it is proposed to
use the water;
(e) The use which is proposed to be made of the water;
(f) The reasons for making the proposed change; and
(g) Evidence that the water has been used over the past five
years according to the terms and conditions of the owner's water
right certificate or that the water right is not subject to
forfeiture under ORS 540.610.
(3) If the application required under subsection (1) of this
section is necessary to allow a change in a water right pursuant
to ORS 537.348, is necessary to complete a project funded under
ORS 541.375, or is approved by the { - State Department of Fish
and Wildlife - } { + department + } as a change that will
result in a net benefit to fish and wildlife habitat, the
department, at the discretion of the { - Water Resources
Director - } { + Director of the Oregon Department of Natural
Resources + }, may waive or assist the applicant in satisfying
the requirements of subsection (2)(c) and (d) of this section.
The assistance provided by the department may include, but need
not be limited to, development of an application map.
(4) If the application is to change the point of diversion, the
{ - transfer shall include a condition that the holder of the
water right provide a proper fish screen at the new point of
diversion, if requested by the State Department of Fish and
Wildlife - } { + department shall determine whether to require
the holder of the water right to provide a fish screen at the new
point of diversion + }.
(5) Upon the filing of the application the department shall
give notice by publication in a newspaper having general
circulation in the area in which the water rights are located,
for a period of at least three weeks and not less than one
publication each week. The notice shall include the date on which
the last notice by publication will occur. The cost of the
publication shall be paid by the applicant in advance to the
department. In applications for only a change in place of use or
for a change in the point of diversion of less than one-fourth
mile, and where there are no intervening diversions between the
old diversion of the applicant and the proposed new diversion, no
newspaper notice need be published. The department shall include
notice of such applications in the weekly notice published by the
department.
(6) Within 30 days after the last publication of a newspaper
notice of the proposed transfer or the mailing of the
department's weekly notice, whichever is later, any person may
file, jointly or severally, with the department, a protest
against approval of the application.
(7) Whenever a timely protest is filed, or in the opinion of
the { - Water Resources - } director a hearing is necessary to
determine whether the proposed changes as described by the
application would result in injury to existing water rights, the
department shall hold a hearing on the matter. Notice and conduct
of the hearing shall be under the provisions of ORS chapter 183,
pertaining to contested cases, and shall be held in the area
where the rights are located unless all parties and persons who
filed a protest under this subsection stipulate otherwise.
(8) An application for a change of use under this section is
not required if the beneficial use authorized by the water use
subject to transfer is irrigation and the owner of the water
right uses the water for incidental agricultural, stock watering
and other uses related to irrigation use, so long as there is no
increase in the rate, duty, total acreage benefited or season of
use.
(9) A water right transfer under subsection (1) of this section
is not required for a general industrial use that was not
included in a water right certificate issued for a specific
industrial use if:
(a) The quantity of water used for the general industrial use
is not greater than the rate allowed in the original water right
and not greater than the quantity of water diverted to satisfy
the authorized specific use under the original water right;
(b) The location where the water is to be used for general
industrial use was owned by the holder of the original water
right at the time the water right permit was issued; and
(c) The person who makes the change in water use provides the
following information to the { - Water Resources - }
department:
(A) The name and mailing address of the person using water
under the water right;
(B) The water right certificate number;
(C) A description of the location of the industrial facility
owned by the holder of the original water right at the time the
water right permit was issued; and
(D) A description of the general industrial use to be made of
the water after the change.
SECTION 1531. ORS 540.523 is amended to read:
540.523. (1) In accordance with the provisions of this section,
any person who holds a water use subject to transfer may request
that the { - Water Resources Department - } { + Oregon
Department of Natural Resources + } approve the temporary
transfer of place of use and, if necessary to convey water to the
new temporary place of use, temporarily change the point of
diversion or point of appropriation for a period not to exceed
five years. An application for a temporary transfer shall:
(a) Be submitted in writing to the { - Water Resources - }
department;
(b) Be accompanied by the appropriate fee for a change in the
place of use as set forth in ORS 536.050;
(c) Include the information required under ORS 540.520 (2); and
(d) Include any other information the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + } by
rule may require.
(2) Notwithstanding the notice and waiting requirements under
ORS 540.520, the department shall approve by order a request for
a temporary transfer under this section if the department
determines that the temporary transfer will not injure any
existing water right.
(3) All uses of water for which a temporary transfer is allowed
under this section shall revert automatically to the terms and
conditions of the water use subject to transfer upon expiration
of the temporary transfer period.
(4) The time during which water is used under an approved
temporary transfer order does not apply toward a finding of
forfeiture under ORS 540.610.
(5) The department may revoke a prior approval of the temporary
transfer at any time if the department finds that the transfer is
causing injury to any existing water right.
(6) Any map that may be required under subsection (1) of this
section need not be prepared by a certified water right examiner.
(7) The lands from which the water right is removed during the
period of a temporary transfer shall receive no water under the
transferred water right.
(8) When an application for a temporary change of the place of
use for a primary water right is submitted in accordance with
this section, the applicant also shall indicate whether the land
described in the application has an appurtenant supplemental
water right or permit. If the applicant also intends to
temporarily transfer the supplemental water right or permit, the
applicant also shall include the information required under ORS
540.520 (2) for the supplemental water right or permit. If the
applicant does not include the supplemental water right or permit
in the temporary transfer application, the { - Water
Resources - } department shall notify the applicant that the
supplemental water right or permit will be canceled before the
department issues the order approving the temporary transfer of
the primary water right, unless within 30 days the applicant
modifies the application to include the supplemental water right
or permit or withdraws the application. The department may
approve the temporary transfer of the supplemental water right or
permit in accordance with the provisions of this section. The
department may not approve the temporary transfer of a
supplemental water right or permit if the temporary transfer
would result in enlargement of the original water right or injury
to an existing water right. If the department approves the
temporary transfer of the primary water right but does not
approve the temporary transfer of the supplemental water right or
permit, the department shall notify the applicant of the
department's intent not to allow the temporary transfer of the
supplemental water right or permit before the department issues
the order for the temporary transfer of the primary water right.
If the department does not allow the temporary transfer of the
supplemental right, the supplemental right shall remain
appurtenant to the land described in the application, but may not
be exercised until the primary right reverts to the original
water use. If the primary water right does not revert soon enough
to allow use of water under the supplemental right within five
years, the supplemental right shall become subject to
cancellation for nonuse under ORS 540.610.
(9) In issuing an order under subsection (2) of this section,
the department shall include any condition necessary to protect
other water rights.
SECTION 1532. ORS 540.524 is amended to read:
540.524. (1) Notwithstanding ORS 540.510 or 540.670, upon
approval of an application submitted to the { - Water Resources
Department - } { + Oregon Department of Natural Resources + },
the holder of both a primary water right originating from a
surface water source and a supplemental water right permit or
certificate originating from a ground water source may substitute
the use of the supplemental water right for the primary water
right. A substitution may not be made under this subsection if
the use of the supplemental water right results in an enlargement
or expansion of the primary water right. This subsection does not
authorize a change in place of use, type of use, point of
diversion or point of appropriation.
(2) An application required under subsection (1) of this
section shall be submitted on forms provided by the department.
The department may request additional information if necessary to
assist with the injury evaluation. Each application shall be
submitted with the fee described in ORS 536.050 (1)(s).
(3) Upon receiving an application under subsection (1) of this
section, the department shall provide notice, accept protests and
conduct hearings on protests in the manner described in ORS
540.520 (5), (6) and (7).
(4) The { - Water Resources Director - } { + Director of
the Oregon Department of Natural Resources + } shall issue an
order approving or denying the substitution. If the proposed
substitution will result in injury to other water rights, the
director shall prohibit or condition the use to avoid or mitigate
the injury. The director shall issue an order approving or
denying the substitution within 90 days after the department
receives an application under subsection (1) of this section.
(5) For the purpose of ORS 540.610, a substituted primary
surface water right shall be treated as a supplemental water
right, and a substituted supplemental ground water right shall be
treated as a primary water right.
(6) A completed and approved substitution of a supplemental
ground water right for a primary surface water right under this
section may be terminated upon a request by the water right
holder or by an order of the director if the director determines
that the use of the ground water as the primary water right
causes injury to other water rights. Upon termination, the
substituted primary and supplemental water rights shall revert
back to their original status.
SECTION 1533. ORS 540.525 is amended to read:
540.525. (1) Upon receipt of an application for a change in the
point of diversion under ORS 540.520, the { - Water Resources
Department shall consult with the State Department of Fish and
Wildlife to - } { + Oregon Department of Natural Resources
shall + } determine whether the diversion is:
(a) Equipped with an appropriate fish screening or by-pass
device; or
(b) Included on the priority list of screening projects
established pursuant to section 8, chapter 933, Oregon Laws 1989.
(2) If the original point of diversion is included in the
priority list of screening projects established pursuant to
section 8, chapter 933, Oregon Laws 1989, the department { - ,
after consulting with the State Department of Fish and
Wildlife, - } may require the installation of an appropriate
fish screening or by-pass device at the new point of
diversion { + if the department determines that the installation
of an appropriate fish screening or by-pass device is necessary
to prevent fish from leaving the body of water and entering the
diversion + }.
{ - (3) When consulting with the State Department of Fish and
Wildlife, The department shall determine whether the installation
of an appropriate fish screening or by-pass device is necessary
to prevent fish from leaving the body of water and entering the
diversion. - }
{ - (4) - } { + (3) + } Any individual who is required to
install a fish screening or by-pass device under this section at
a point of diversion may participate in the { - State
Department of Fish and Wildlife's - } { + department's + }
cost-sharing program for the installation of screening or by-pass
devices.
SECTION 1534. ORS 540.530 is amended to read:
540.530. (1)(a) If, after hearing or examination, the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + } finds that a proposed change can be
effected without injury to existing water rights, the commission
shall make an order approving the transfer and fixing a time
limit within which the approved changes may be completed.
(b) If, after hearing or examination, the commission finds that
a proposed change in point of diversion cannot be effected
without injury to existing water rights, upon receipt by the
commission of an affidavit consenting to the change from every
holder of an affected water right, the commission may make an
order approving the transfer and fixing a time limit within which
the approved changes may be completed.
(c) If, after hearing or examination, the commission finds that
a proposed change in point of diversion cannot be effected
without injury to an in-stream water right granted pursuant to a
request under ORS 537.336 or an in-stream water right created
pursuant to ORS 537.346 (1), the { - Water Resources
Department - } { + Oregon Department of Natural Resources + }
may consent to the change only { - upon a recommendation that
the department do so from the agency that requested the in-stream
water right. The agency that requested the in-stream water right
may recommend that the department consent to the change only - }
if the change will result in a net benefit to the resource
consistent with the purposes of the in-stream water right.
(d)(A) If an in-stream water right would be injured by a
proposed change under paragraph (c) of this subsection, the
department shall obtain a recommendation from the agency that
requested the in-stream water right. If the recommendation of the
agency is to consent to the change, the department shall provide
public notice of the recommendation and, consistent with state
laws regarding cooperation with Indian tribes in the development
and implementation of state agency programs that affect tribes or
rights and privileges of tribes, the department shall consult
with affected Indian tribes.
(B) The recommendation of an agency under this paragraph must
be in writing and, if the recommendation is to consent to the
change, must describe the extent of the injury to the in-stream
water right, the effect on the resource and the net benefit that
will occur as a result of the proposed change. The recommendation
may include any proposed conditions that are necessary to ensure
that the proposed change will be consistent with the
recommendation.
(C) In determining whether a net benefit will result from the
proposed change, the recommendation of an agency must include an
analysis of the cumulative impact of any previous changes under
paragraphs (b) and (c) of this subsection that allow injury to
the affected in-stream water right.
(D) A person may comment on the recommendation of an agency.
The comment must be in writing and must be received by the
department within 30 days after publication of notice under this
paragraph. If a written comment received by the department
requests a meeting on the proposed change, the department and the
agency that requested the in-stream water right shall hold a
joint public meeting within 90 days of the receipt of the comment
requesting a meeting.
(e)(A) If, after review of public comments and consultation
with the agency that requested the in-stream water right, the
agency that requested the in-stream water right does not withdraw
its recommendation to consent to the change, the department may
approve the change consistent with the requirements of paragraphs
(b) and (c) of this subsection.
(B) An order approving a change under paragraph (c) of this
subsection shall include written findings on the extent of the
injury to the in-stream water right, the effect on the resource
and the net benefit that will occur as a result of the change.
The order shall include any conditions necessary to ensure that
the change will be consistent with the findings and ensure that
the change will result in a continued net benefit to the resource
consistent with the purposes of the in-stream water right.
(C) In determining whether a net benefit will result from the
change, the order of the department must include an analysis of
the cumulative impact of any previous changes approved under
paragraphs (b) and (c) of this subsection that allow injury to
the affected in-stream water right.
(f) The time allowed by the commission for completion of an
authorized change under paragraphs (a) to (e) of this subsection
may not be used when computing a five-year period of nonuse under
the provisions of ORS 540.610 (1).
(2)(a) If a certificate covering the water right has been
previously issued, the commission shall cancel the previous
certificate or, if for an irrigation district, the commission may
modify the previous certificate and, when proper proof of
completion of the authorized changes has been filed with the
commission, issue a new certificate or, if for an irrigation
district, modify the previous certificate, preserving the
previously established priority of rights and covering the
authorized changes. If only a portion of the water right covered
by the previous certificate is affected by the changes, a
separate new certificate may be issued to cover the unaffected
portion of the water right.
(b) If the change authorized under subsection (1) of this
section is necessary to allow a change in a water right pursuant
to ORS 537.348, is necessary to complete a project funded under
ORS 541.375, or is approved by the { - State Department of Fish
and Wildlife - } { + department + } as a change that will
result in a net benefit to fish and wildlife habitat, the
{ - Water Resources - } department, at the discretion of the
{ - Water Resources Director - } { + Director of the Oregon
Department of Natural Resources + }, may waive or assist the
applicant in satisfying any of the proof of completion
requirements of paragraph (a) of this subsection. The assistance
provided by the department may include, but need not be limited
to, development of a final proof survey map and claim of
beneficial use.
(3) Upon receiving notification of the merger or consolidation
of municipal water supply entities, or the formation of a water
authority under ORS chapter 450, the commission shall cancel the
previous certificates of the entities replaced by the merger,
consolidation or formation and issue a new certificate to the
newly formed municipality or water authority. The new certificate
shall preserve the previously established priority of rights of
the replaced entities and shall allow beneficial use of the water
on any lands acquired in the merger, consolidation or formation.
SECTION 1535. ORS 540.531 is amended to read:
540.531. (1) Notwithstanding ORS 537.515 and 537.535, an owner
of a surface water use subject to transfer may apply for a
transfer of the point of diversion to allow the appropriation of
ground water if the proposed transfer complies with the
requirements of subsection (2) or (3) of this section and with
the requirements for a transfer in point of diversion specified
in ORS 540.520 and 540.530.
(2) The { - Water Resources Department - } { + Oregon
Department of Natural Resources + } may allow a transfer of the
point of diversion under subsection (1) of this section if:
(a)(A) The new point of diversion appropriates ground water
from an aquifer that is hydraulically connected to the authorized
surface water source;
(B) The proposed change in point of diversion will not result
in enlargement of the original water right or in injury to other
water right holders;
(C) The use of the new point of diversion will affect the
surface water source similarly to the authorized point of
diversion specified in the water use subject to transfer; and
(D) The withdrawal of ground water at the new point of
diversion is located within 500 feet of the surface water source
and, when the surface water source is a stream, is also located
within 1,000 feet upstream or downstream of the original point of
diversion as specified in the water use subject to transfer; or
(b) The new point of diversion is not located within the
distance requirements set forth in paragraph (a)(D) of this
subsection, the holder of the water use subject to transfer
submits to the department evidence prepared by a licensed
geologist that demonstrates that the use of the ground water at
the new point of diversion will meet the criteria set forth in
paragraph (a)(A) to (C) of this subsection.
(3) Notwithstanding subsection (2) of this section, the
department shall allow a transfer of the point of diversion under
subsection (1) of this section in the Deschutes basin ground
water study area if:
(a) The new point of diversion appropriates ground water from
an aquifer that is hydraulically connected to the authorized
surface water source;
(b) The proposed change in the point of diversion will not
result in enlargement of the original water right or in injury to
other water right holders; and
(c) The use of the new point of diversion will affect the
surface water source hydraulically connected to the authorized
point of diversion specified in the water use subject to
transfer. The department may not require that the use of the new
point of diversion affect the surface water source similarly to
the authorized point of diversion specified in the water use
subject to transfer under this subsection.
(4) All applicable restrictions that existed at the original
point of diversion shall apply at the new point of diversion
allowed under this section.
(5) The new point of diversion shall retain the original date
of priority. However, if within five years after approving the
transfer, the department finds that the transfer results in
substantial interference with existing ground water rights that
would not have occurred in the absence of the transfer, the new
point of diversion shall be subordinate to any existing right
injured by the transferred water right or permit.
(6)(a) The department shall approve an application to return to
the last authorized surface water point of diversion if a holder
of a water use subject to transfer submits an application to the
department within five years after the department approves a
transfer under this section.
(b) The department shall approve an application to return to
the last authorized surface water point of diversion after five
years of the date the department allows a transfer under
subsection (3) of this section if a holder of a water use subject
to transfer submits an application to the department, and the
return will not result in injury to an existing water right.
(7) For transfers allowed under this section, the department
shall require mitigation measures to prevent depletion from any
surface water source not specified in the permit or certificated
or decreed water right, except that the department may not
require mitigation measures if the transfer complies with
subsection (3) of this section.
(8) The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } shall adopt rules that
prescribe:
(a) The process for reviewing applications submitted under this
section;
(b) The persons to whom the department shall provide notice of
the receipt of an application submitted under this section; and
(c) The persons who may participate in the process of reviewing
applications submitted under this section.
(9) As used in this section:
(a) 'Deschutes basin ground water study area' means the part of
the Deschutes River Basin that is designated by the { - Water
Resources - } commission by rule.
(b) 'Similarly' means that the use of ground water at the new
point of diversion affects the surface water source specified in
the permit or certificated or decreed water right and would
result in stream depletion of at least 50 percent of the rate of
appropriation within 10 days of continuous pumping.
SECTION 1536. ORS 540.532 is amended to read:
540.532. (1) Notwithstanding ORS 537.797, 540.510, 540.520 and
540.530, an individual may request a change in the point of
diversion to reflect the historical use of water at a point of
diversion other than that described in the water right
certificate or decree if the individual complies with the
provisions of subsection (2) of this section.
(2) An individual may request a change in the point of
diversion under subsection (1) of this section if:
(a) The actual, current point of diversion has been in use for
more than 10 years;
(b) The { - Water Resources Department - } { + Oregon
Department of Natural Resources + } has received no claim of
injury as a result of the use of water from the current point of
diversion prior to the request for the change of diversion;
(c) The individual requesting the change provides written
notice to any other affected water right holder, as identified by
the { - Water Resources - } department, and the { - Water
Resources - } department provides notice of the request in the
department's public notice of water right applications; and
(d) The individual provides a map of sufficient detail and
clarity to identify the true point of diversion including but not
limited to:
(A) The county tax lot number, township, range and section, and
to the nearest quarter-quarter section or latitude and longitude
as established by a global positioning system; and
(B) The locations of the point of diversion as specified in the
water right certificate or decree and the actual, current point
of diversion.
(3) Upon receipt of a request for a change in the point of
diversion under subsection (1) of this section, the { - Water
Resources Department shall consult with the State Department of
Fish and Wildlife to - } { + department shall + } determine
whether the historical point of diversion is:
(a) Equipped with an appropriate fish screening or by-pass
device; or
(b) Included on the priority list of screening projects
established pursuant to section 8, chapter 933, Oregon Laws 1989.
(4) If the historical point of diversion is included in the
priority list of screening projects established pursuant to
section 8, chapter 933, Oregon Laws 1989, the { - Water
Resources Department, after consulting with the State Department
of Fish and Wildlife, - } { + department + } may require the
installation of an appropriate fish screening or by-pass device
at the point of diversion { + if the department determines that
the installation of an appropriate fish screening or by-pass
device is necessary to prevent fish from leaving the body of
water and entering the diversion + }.
{ - (5) When consulting with the State Department of Fish and
Wildlife, the Water Resources Department shall determine whether
the installation of an appropriate fish screening or by-pass
device is necessary to prevent fish from leaving the body of
water and entering the diversion. - }
{ - (6) - } { + (5) + } Any individual who is required to
install a fish screening or by-pass device under this section at
a point of diversion may participate in the { - State
Department of Fish and Wildlife's - } { + department's + }
cost-sharing program for the installation of screening or by-pass
devices.
SECTION 1537. ORS 540.533 is amended to read:
540.533. (1) Any person holding a water right established by
court decree, a water right certificate or a water right for
which proof of beneficial use has been approved by the
{ - Water Resources Director or Water Resources Commission - }
{ + Director of the Oregon Department of Natural Resources or
the Oregon Natural Resources Commission + } or any person
applying for or holding a permit issued under ORS 537.211 for use
of water for an in-stream purpose may apply to the { - Water
Resources - } commission for permission to use stored, surface
or ground water from another source in exchange for supplying
replacement water in an equal amount to satisfy prior
appropriations from the other source, if:
(a) The source of the person's appropriation is at times
insufficient to fully satisfy the appropriation;
(b) Better conservation and use of the waters of the state can
be accomplished; or
(c) The person can develop water for appropriation under the
permit for use of water for an in-stream purpose, but cannot
economically convey the water to its point of use.
(2) A person may apply for an exchange under this section among
any combination of surface, storage or ground water rights.
(3) An application for exchange shall be accompanied by:
(a) Any map, plan or other information required by the
commission; and
(b) The fee required under ORS 536.050.
SECTION 1538. ORS 540.535 is amended to read:
540.535. After receipt of an exchange application, the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + } shall give notice of the application by
publishing notice of the application in a newspaper having
general circulation in the area in which the water uses are
located at least once each week for at least three successive
weeks. The cost of providing the notice by publication shall be
paid in advance by the applicant to the commission.
SECTION 1539. ORS 540.537 is amended to read:
540.537. (1) The { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } shall issue an order
allowing an exchange unless the commission finds any of the
following:
(a) The proposed exchange would adversely affect other
appropriators.
(b) The proposed exchanges would be too difficult to
administer.
(c) The proposed exchange would adversely affect the public
interest as determined under ORS 537.170 (8).
(d) A sufficient quantity of water would not be available to
replace the water to be used under the exchange. In determining
whether replacement water will be equal to the water exchanged,
the commission may consider relative consumptive uses and
transmission losses.
(2) The commission may include any condition the commission
considers necessary in an order allowing an exchange.
(3) The commission shall issue an order terminating the
exchange:
(a) If water is not applied under the exchange within the time
fixed by the commission in the order approving the exchange;
(b) Upon written request signed by all parties to the exchange;
(c) Upon finding that any other termination condition specified
in the original order has occurred; or
(d) Upon attainment of a termination date specified in the
original exchange order.
(4) For purposes of subsection (3) of this section, the time
fixed for implementing the exchange shall include any extension
granted by the commission for good cause shown.
SECTION 1540. ORS 540.541 is amended to read:
540.541. (1) Any water made available to a person under an
exchange shall be delivered in accordance with the order allowing
the exchange. The use of water under an exchange is without
prejudice to, but shall be considered use and enjoyment of, the
permitted, certificated or decreed right held by that water user
at the time the exchange was approved.
(2) The use of water under a permit may be perfected by
application of exchange water to the use specified in that
permit. Upon receipt of proof satisfactory to the { - Water
Resources Commission - } { + Oregon Natural Resources
Commission + } that water has been used under the exchange for
the purposes of and within the limitations of the permit, the
commission shall issue a certificate of the same character as
that described in ORS 539.140. The certificate shall incorporate
the source, conditions and priority of the permit existing at the
time the exchange was approved.
(3) If regulation by the watermaster is required, after
implementation of the exchange, water shall be delivered in
accordance with the terms and conditions of the order allowing
the exchange.
{ + NOTE: + } Section 1541 was deleted. Subsequent sections
were not renumbered.
SECTION 1542. ORS 540.550 is amended to read:
540.550. All attempted transfers or sales, prior to March 6,
1931, to an irrigation district, of water rights which
theretofore had been appurtenant to lands located in the district
and which lands at the time of the attempted transfer or sale
were owned by the county, shall be considered to be legal and
binding, and the water rights which were appurtenant to such
lands shall be considered to have become the property of the
district to which attempted to be conveyed, but appurtenant only
to lands within the boundaries of the district as they existed on
March 6, 1931, if the irrigation district applied { - to the
Water Resources Director - } , within five years after March 6,
1931, under the provisions of section 47-712, Oregon Code 1930,
as amended by chapter 102, Oregon Laws 1931, to have the water
rights made appurtenant to other lands within the irrigation
district. In that event, the county shall sell the lands without
any water rights being appurtenant thereto. If the irrigation
district failed within five years after March 6, 1931, to make
such application, then title to the water rights shall be
considered to have been forfeited.
SECTION 1543. ORS 540.560 is amended to read:
540.560. (1) If the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } considers that a
certificate of water right does not identify the lands to which
the right is appurtenant with sufficient specificity for
management, delivery or transfer of that right, the commission
may issue an order clarifying and refining the description of the
land to which the water right is appurtenant.
(2) An order issued under this section may not reduce the rate,
duty or number of acres stated in the certificate of water right.
The sole purpose of an addendum to a water right certificate is
to better define the location of acreage to which the water right
is appurtenant, where the certificate states only that the use is
limited to a number of acres within a larger tract.
(3) Any order issued under this section shall be served on the
legal owner of the land to which the water right is appurtenant
and on the occupant of the land, by certified mail, return
receipt requested. If the owner or occupant files a written
request for a hearing within 30 days after service of the order,
the commission shall conduct a hearing of the matter under ORS
183.413 to 183.484.
(4) A final order under this section shall become an addendum
to and shall be filed with the certificate of water right that
the order clarifies. For all purposes, the final order shall
constitute the description of the land to which the water right
is appurtenant.
SECTION 1544. ORS 540.570 is amended to read:
540.570. (1) Provided that the proposed transfer complies with
all of the provisions of this subsection and will not result in
injury to any existing water right, a district with a manager
may, for one irrigation season, temporarily transfer the place of
use of water appurtenant to any land within the legal boundaries
of the district to an equal acreage elsewhere within the legal
boundaries of that district or temporarily transfer the type of
use identified in a right to store water. A temporary transfer of
the place of use may occur if:
(a) The rate and duty, and the total number of acres to which
water will be applied under the transfer, do not exceed existing
limits on the water use subject to transfer;
(b) The type of use authorized under the water use subject to
transfer remains the same; and
(c) The land from which the water use is being transferred does
not receive any water under the right being transferred during
the irrigation season in which the change is made.
(2) Provided that the proposed transfer complies with all the
provisions of this subsection and will not result in injury to or
enlargement of an existing water right, a district with a manager
may, for one irrigation season, temporarily change the point of
diversion or appropriation combined with a change in place of
use, change the point of diversion in the event that an emergency
prevents the district from diverting water from its authorized
point of diversion, change the point of diversion to allow for
the appropriation of ground water or change a primary right to a
supplemental right if:
(a) The land on which the water is to be used is within the
district's legal boundaries established pursuant to ORS chapter
545, 547, 552, 553 or 554;
(b) The other terms of the permit or certificate remain the
same, including the beneficial use for which the water is used
and the number of acres to which water is applied;
(c) The diversion is provided with a proper fish screen, if
required by the { - Water Resources Department - } { + Oregon
Department of Natural Resources + }; and
(d) For a proposal to transfer the point of diversion to allow
for the appropriation of ground water, the proposed change meets
the standards set forth in ORS 540.531 (2).
(3) When a district or an owner or an owner's agent within a
district who is subject to the charges or assessments of the
district wishes to use water on alternate acreage within the
district, if the district has approved the owner's request, the
district shall submit to the department a petition seeking a
temporary transfer under this section. The district shall submit
the petition prior to making the proposed change. The petition
may contain changes to one or more tax lots within the district
and shall:
(a) Include the information required under ORS 540.574 (3);
(b) Be accompanied by a map in a form satisfactory to the
department and certified by the district. If the water right is
on a tract of land of five acres or less, the assessor's tax map
with a notation of the acres of water right shall be sufficient
for identification of the tract and place of use;
(c) Include a statement that a written authorization for the
transfer from each landowner affected by the particular temporary
transfer is on file with the district;
(d) Include any other information required by rules of the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + }; and
(e) Include a fee in the amount required under ORS 536.050
(1)(i).
(4) The district shall notify each affected landowner that the
department may reject the transfer or may require mitigation to
avoid injury to other water rights. Upon receipt of a completed
petition under subsection (3) of this section, the department
shall place a summary of the petition in the weekly notice
published by the department. The department shall accept written
public comments on the petition for 30 days following publication
of the weekly notice. The department shall consider comments that
pertain to the potential for injury to an existing water right or
to the enlargement of the water use subject to transfer in
determining whether to condition, reject or revoke a temporary
transfer.
(5) Use of water on lands from which the right is transferred
and in the new temporary location during the same irrigation
season or calendar year is prohibited and may subject the
district and the landowner to civil penalties.
(6) The department may condition, reject or revoke a temporary
transfer at any time to the extent necessary to avoid injury if
the department finds the transfer is causing injury to an
existing water right.
(7) Upon expiration of the temporary transfer period, all uses
of water for which a temporary transfer is allowed under this
section shall revert automatically to the terms and conditions of
the original water right permit, certificate or adjudication
under ORS chapter 539 as evidenced by a court decree.
(8) The time during which water is used under an approved
temporary transfer order does not apply toward a finding of
forfeiture under ORS 540.610.
SECTION 1545. ORS 540.572 is amended to read:
540.572. (1) Upon compliance with this section and ORS 540.574
and 540.576, whenever land within the legal boundaries of a
district is no longer irrigated or susceptible of irrigation, the
district may apply the certificated water to which such land is
entitled to other irrigable lands within the legal boundaries of
the district if the district:
(a) Is managed by a full-time manager; and
(b) Is implementing a conservation plan approved by the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + }, and meets all other management
responsibility criteria for districts and conservation and
efficiency criteria required by the
{ - Water Resources - } commission.
(2) If a water user of a district has not made beneficial use
of the water to which the user is entitled for a period of four
successive years, the district shall advise the user and any
security interest holder of record that if the user does not use
the water for a fifth successive year, the district may petition
the { - Water Resources - } commission for a transfer of the
water right under ORS 540.574.
(3) When a district wishes to transfer the use of water under
this section, the district shall provide notice of its intent to
petition for a transfer to the user and any security interest
holder of record of the land whose right of record would be
transferred. The notice shall be sent to the last-known address
for the user with a return receipt requested.
(4) The notice required under subsection (3) of this section
shall:
(a) Include:
(A) The number of acres for which the user is being charged or
assessed;
(B) A general description or tax lot of the land to which the
water is assigned;
(C) A description of the use; and
(D) A request for confirmation that the information in the
notice is correct.
(b) Advise the user that:
(A) The district has determined that the user's land is no
longer irrigated or susceptible of irrigation and that the
district intends to petition the { - Water Resources - }
commission for approval to transfer the user's water right to
other lands in the district.
(B) If the user disagrees with the determination of the
district that the user's land is no longer irrigated or
susceptible of irrigation or if the user has some other objection
to the proposed action of the district, the user shall so advise
the district in writing within 30 days after the notice is
mailed.
(C) The user shall advise the district in writing within the
foregoing time period if the user believes the presumption of
forfeiture under ORS 540.610 is rebuttable for a reason provided
under ORS 540.610.
(5) If the district receives a written objection within 30 days
after the mailing of the notice under subsection (3) of this
section, the district manager shall attempt to resolve the matter
with the user. If the user's objections cannot be resolved by the
manager, a hearing shall be held before the board of directors
who shall make a determination whether to proceed with the
petition to the { - Water Resources - } commission.
(6) If no written objections are received by the district
within 30 days after the mailing of the notice under subsection
(3) of this section, or following resolution or hearing under
subsection (5) of this section, the district may petition the
{ - Water Resources - } commission for approval of the
transfer under ORS 540.574.
(7) As used in this section:
(a) 'Irrigable land' means land that is currently under
irrigation or susceptible of irrigation for agricultural,
horticultural, viticultural or grazing purposes.
(b) 'No longer irrigated or susceptible of irrigation ' means:
(A) Land on which water for irrigation has not been applied for
a period of five successive irrigation seasons; or
(B) Land that does not have reasonable access to the system of
irrigation works of the district, or that cannot be irrigated
from or that is not susceptible to or would not, by reason of
being permanently devoted to uses other than agricultural,
horticultural, viticultural or grazing, be directly benefited by
actual irrigation from the district.
(c) 'Owned' or 'controlled' means ownership in fee, purchase on
a land sale contract, option to purchase or lease.
(d) 'User' means an owner of land with an appurtenant water
right who is subject to the charges or assessments of a district
and from whose land the water right would be transferred by the
petition and map filed under ORS 540.574 and an owner of land to
which the water right would be transferred.
SECTION 1546. ORS 540.574 is amended to read:
540.574. (1) In accordance with the requirements of subsection
(3) of this section, a district may petition the { - Water
Resources Commission - } { + Oregon Natural Resources
Commission + } for approval and acceptance of a district map
indicating the transfer of the location and use of the water
rights within the district or any part of the district. The map
shall be in a form satisfactory to the commission and shall be
certified by the district rather than a certified water right
examiner. In no event shall the petition and map expand a water
right of the district or its users beyond the total right of
record for the district. If the district complies with the
requirements of ORS 540.572 to 540.580, and after the opportunity
for hearing under ORS 540.578, the commission shall issue an
order approving the transfer and proceed as provided in ORS
540.530 (1) and (2).
(2) If the commission denies the petition under subsection (1)
of this section, the commission shall hold a hearing on the
denial. Notice and conduct of the hearing shall be according to
the provisions of ORS chapter 183 applicable to a contested case
proceeding. The hearing shall be conducted in the area of the
state where the right is located unless the parties and the
persons who file the protest under this section stipulate
otherwise.
(3) The petition required under subsection (1) of this section
shall include:
(a) The name of the district and the certificate number of each
water right contained in the petition.
(b) The names of all users within the district from whose lands
water rights are to be transferred.
(c) The names of all users within the district to whose lands
water rights are to be transferred.
(d) A general description of the district boundaries.
(e) A general description of the users' land and the water
right for each parcel from which and to which water rights are to
be transferred. If the water right is on a tract of land of five
acres or less, a notation of the acres of water right on the
assessor's tax map shall be sufficient for identification of the
place of use and the extent of use.
(f) A description of the use that is proposed to be made of the
water on each parcel.
(g) An affirmation by the petitioner that the map and petition
are accurate to the best of the petitioner's knowledge.
(h) A statement by the petitioner that notice has been given as
required under ORS 540.572 (2), and that the water right has not
previously been forfeited under ORS 540.610 due to an earlier or
longer period of nonuse.
SECTION 1547. ORS 540.576 is amended to read:
540.576. After filing a petition under ORS 540.572, the
district shall send a copy of the petition and map and a notice
to the users of the district whose right of record is to be
transferred and who are to receive the transferred right. The
copy of the petition and the notice shall be sent to the
last-known address of the user with a return receipt requested.
The notice accompanying the petition shall advise the user that:
(1) Sixty days after the date of mailing of the notice, the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + } shall accept the petition and the water
right shall be transferred unless a protest is filed or the
petition does not meet the requirements of ORS 540.572 to
540.580; and
(2) The user has the right to protest the petition and transfer
in the manner described in ORS 540.578.
SECTION 1548. ORS 540.578 is amended to read:
540.578. (1) Any user may file with the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + },
within 60 days after the date of mailing the notice under ORS
540.576, a protest against approval of the petition, map and
transfer. Whenever a timely protest is filed, or in the opinion
of the commission a hearing is necessary to determine whether the
district has complied with the requirements of ORS 540.572 to
540.580, or the proposed transfers described in the petition
would result in injury to existing water rights, the commission
shall hold a hearing on the matter. The hearing shall be
conducted according to the provisions of ORS chapter 183
applicable to contested case proceedings. The hearing shall be
held in the area of the state where the rights are located unless
the parties and the persons who filed the protest under this
section stipulate otherwise.
(2) If, after examination or hearing, the commission finds that
the petition complies with the requirements of ORS 540.572 to
540.580, and that the proposed changes described in the petition
would not result in injury to existing water rights, the
commission shall issue an order approving the transfer and
proceed as provided in ORS 540.530 (1) and (2).
(3) A certificate issued under this section for the transferred
water right shall have the evidentiary effect provided for in ORS
537.270 unless the right to appropriate water described in the
certificate is forfeited after the certificate is issued.
SECTION 1549. ORS 540.580 is amended to read:
540.580. (1) In accordance with this section, a district may by
petition request that the { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } approve the
permanent transfer of the place of use of water within a district
as long as the proposed transfer complies with all of the
following:
(a) The rate, duty and total number of acres to which water is
to be applied under the water use subject to transfer are not
exceeded;
(b) The use authorized under the water use subject to transfer
remains the same;
(c) The change in place of use will not result in injury to any
existing water right; and
(d) The land from which the water right is removed by the
transfer shall receive no water under the transferred right.
(2) A district may submit a petition for a permanent transfer
prior to or subsequent to the change in place of use, but no
later than the end of the calendar year in which the change
occurs. The petition submitted by the district may include an
unlimited number of transfers within the same petition. A
petition under this section shall:
(a) Include the information required under ORS 540.574 (3),
except for the statement that a notice under ORS 540.572 (2) has
been given;
(b) Be accompanied by a map in a form satisfactory to the
department and certified by the district. If the water right is
on a tract of land of five acres or less, the assessor's tax map
with a notation of the acres of water right shall be sufficient
for identification of the tract and place of use;
(c) Include a statement that each landowner affected by a
permanent transfer has authorized the transfer in a writing that
is on file with the district;
(d) Include any other information required by rules of the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + }; and
(e) Include the fee required under ORS 536.050 (1)(h) for a
change in the place of use.
(3) If a district allows a change in the place of use of water
before obtaining the approval of the department, the district
shall:
(a) Notify each affected landowner that the change is subject
to the approval of the department and that the department may
reject the transfer or may require mitigation to avoid injury to
other water right holders; and
(b) Notify the department in advance of the change. The notice
shall include:
(A) The name of the district and the certificate number of each
water right that is the subject of the change;
(B) The names of the users within the district from whose lands
and to whose lands water rights are to be transferred;
(C) A general description of the users' lands by township,
range, quarter quarter section and tax lot number, and of the
water right, for each parcel from which and to which water rights
are to be transferred; and
(D) A description of the use that is proposed to be made of the
water on each parcel.
(4) Upon receipt of the notice required under subsection (3)(b)
of this section, the department shall provide public notice in
the weekly notice published by the department.
(5) If a district allows a change in the place of use of water
before obtaining approval of the department under this section,
the department may direct the district to cease delivery of water
or mitigate injury where the change in place of use is causing
injury to an existing water right.
(6) Within 15 days after the filing of a petition under
subsection (2) of this section, the department shall include
notice of the petition in the weekly notice published by the
department. Within 30 days after the mailing of the department's
weekly notice, any potentially affected holder of an existing
water right may file, jointly or severally, with the department,
a protest against approval of the petition.
(7) Subject to the provisions of subsection (8) of this
section, whenever a timely protest is filed, or in the opinion of
the { - Water Resources Director - } { + Director of the
Oregon Department of Natural Resources + } a hearing is necessary
to determine whether the proposed changes as described in the
petition would result in injury to existing water rights, the
department may hold a hearing on the petition. Notice and conduct
of the hearing shall be according to the provisions of ORS
chapter 183 pertaining to contested cases, shall be scheduled
within 45 days after the filing of the petition, and shall be
held in the area where the rights are located unless all parties
and persons who filed a protest under this subsection stipulate
otherwise.
(8) If a water user within the district files a protest
claiming injury to a water right delivery by the district, no
contested case hearing shall be required, but the district shall
resolve the matter directly with the water user.
(9) After examination or hearing, the department shall issue an
order approving the transfer if the proposed change can be
effected without injury to existing water rights. If no hearing
is scheduled under subsection (7) of this section, the order of
the department shall be issued within 90 days after the date of
the filing of the petition. If the proposed change cannot be
effected without injury to existing water rights, the department
may condition approval, including requiring mitigation of the
effects on other water rights, to the extent necessary to avoid
injury. If a hearing is scheduled, the department shall issue a
final order within 120 days after scheduling the hearing.
(10) Within 20 days after the director issues a final order
under this section, the district or any protestant may file with
the commission exceptions to the final order. The commission
shall issue an order granting or denying the exceptions within 30
days after receiving the exceptions.
(11) If a certificate covering the water right has been
previously issued, the department may amend the certificate or
may cancel the certificate and issue a new certificate preserving
the previously established priority of rights and covering the
authorized changes. If only a portion of the water right covered
by the previous certificate is affected by the changes, a
separate new certificate may be issued to cover the unaffected
portion of the water right. A certificate as amended or issued
under this section has the evidentiary effect provided for in ORS
537.270 as to the new lands except when the right to appropriate
water described in the certificate is abandoned after the
certificate is amended or issued.
(12) Notwithstanding the provisions of subsection (2) of this
section, a petition filed on or before December 31, 1996, may
include all changes in place of use allowed by a district after
July 1, 1992, and before November 30, 1996.
SECTION 1550. ORS 540.585 is amended to read:
540.585. (1) In accordance with the provisions of this section,
a person may request that the { - Water Resources
Department - } { + Oregon Department of Natural Resources + }
approve the temporary transfer of the place of use and type of
use and temporarily change the point of diversion if necessary to
convey water to the new temporary place of use, of all or a
portion of a water right, for a period not to exceed 25 years if:
(a) The person holds a water use subject to transfer;
(b) The type of use specified in the original water use subject
to transfer is irrigation;
(c) The person to whom the right is transferred is:
(A) Located within the Deschutes River Basin; and
(B) A city, a quasi-municipal corporation, a domestic water
supply district formed under ORS chapter 264, a water supplier as
defined in ORS 448.115 or a water authority formed under ORS
chapter 450;
(d) The proposed use is municipal use; and
(e) The proposed temporary transfer will not result in injury
to any existing water right.
(2) An application for a temporary transfer under this section
shall:
(a) Be submitted in writing to the { - Water Resources - }
department;
(b) Be accompanied by the appropriate fee for a change in the
place of use and type of use as set forth in ORS 536.050;
(c) Include the information required under ORS 540.520 (2); and
(d) Include any other information the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + } by
rule may require.
(3)(a) Any portion of the use of a water right that is not
temporarily transferred under this section may be used on the
designated part of the lands described in the original water
right permit, certificate or adjudication under ORS chapter 539
as evidenced by a court decree, if the use does not encompass
more than the remaining portion of the lands, enlarge the water
right or increase the rate, duty, total acreage benefited or
season of use.
(b) The { - Water Resources - } department shall designate
the lands on which water may be applied under this subsection and
shall prescribe mapping, measurement and recording requirements
under this subsection.
(4) Upon expiration of a temporary transfer period, all uses of
water for which a temporary transfer is allowed under this
section shall revert automatically to the terms and conditions of
the original water right permit, certificate or adjudication
under ORS chapter 539 as evidenced by a court decree.
(5) The time during which water is used under an approved
temporary transfer order does not apply toward a finding of
forfeiture under ORS 540.610.
(6) The department may revoke a prior approval of a temporary
transfer at any time if:
(a) The department finds that the transfer is causing injury to
any existing water right; or
(b) The person fails to comply with the requirements prescribed
by the department pursuant to subsection (3) of this section.
(7) The department shall provide notice, in the manner provided
in ORS 540.520 (5), that the department received an application
for a temporary transfer under this section.
(8) The department may:
(a) Prescribe the duration of the temporary transfer period
allowed under this section, up to 25 years;
(b) Impose conditions in the terms of the temporary transfer,
including revocation of the transfer for noncompliance with
applicable state, local or federal laws; and
(c) Determine the parties that may participate in the review of
applications submitted under this section.
SECTION 1551. ORS 540.587 is amended to read:
540.587. The { - Water Resources Department - } { + Oregon
Department of Natural Resources + } shall submit a report, in the
manner provided in ORS 192.245, that shall include a summary of
the features of the process employed by the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + } to
implement ORS 540.585. The report shall be submitted no later
than January 31 of each year to the Legislative Assembly or to an
interim committee related to natural resources, as appropriate.
SECTION 1552. ORS 540.610 is amended to read:
540.610. (1) Beneficial use shall be the basis, the measure and
the limit of all rights to the use of water in this state.
Whenever the owner of a perfected and developed water right
ceases or fails to use all or part of the water appropriated for
a period of five successive years, the failure to use shall
establish a rebuttable presumption of forfeiture of all or part
of the water right.
(2) Upon a showing of failure to use beneficially for five
successive years, the appropriator has the burden of rebutting
the presumption of forfeiture by showing one or more of the
following:
(a) The water right is for use of water, or rights of use,
acquired by cities and towns in this state, by appropriation or
by purchase, for all reasonable and usual municipal purposes.
(b) A finding of forfeiture would impair the rights of such
cities and towns to the use of water, whether acquired by
appropriation or purchase, or heretofore recognized by act of the
legislature, or which may hereafter be acquired.
(c) The use of water, or rights of use, are appurtenant to
property obtained by the Department of Veterans' Affairs under
ORS 407.135 or 407.145 for three years after the expiration of
the period of redemption provided for in ORS 18.964 while the
land is held by the Department of Veterans' Affairs, even if
during such time the water is not used for a period of more than
five successive years.
(d) The use of water, or rights of use, under a water right, if
the owner of the property to which the right is appurtenant is
unable to use the water due to economic hardship as defined by
rule by the { - Water Resources Commission - } { + Oregon
Natural Resources Commission + }.
(e) The period of nonuse occurred during a period of time
within which land was withdrawn from use in accordance with the
Act of Congress of May 28, 1956, chapter 327 (7 U.S.C. 1801-1814;
1821-1824; 1831-1837), or the Federal Conservation Reserve
Program, Act of Congress of December 23, 1985, chapter 198 (16
U.S.C. 3831-3836, 3841-3845). If necessary, in a cancellation
proceeding under this section, the water right holder rebutting
the presumption under this paragraph shall provide documentation
that the water right holder's land was withdrawn from use under a
federal reserve program.
(f) The end of the alleged period of nonuse occurred more than
15 years before the date upon which evidence of nonuse was
submitted to the commission or the commission initiated
cancellation proceedings under ORS 540.631, whichever occurs
first.
(g) The owner of the property to which the water right was
appurtenant is unable to use the water because the use of water
under the right is discontinued under an order of the commission
under ORS 537.775.
(h) The nonuse occurred during a period of time within which
the water right holder was using reclaimed water in lieu of using
water under an existing water right.
(i) The nonuse occurred during a period of time within which
the water right holder was reusing water through land application
as authorized by ORS 537.141 (1)(i) or 537.545 (1)(g) in lieu of
using water under an existing water right.
(j) The owner or occupant of the property to which the water
right is appurtenant was unable to make full beneficial use of
the water because water was not available. A water right holder
rebutting the presumption under this paragraph shall provide
evidence that the water right holder was ready, willing and able
to use the water had it been available.
(k) The holder of a water right is prohibited by law from using
the water. If the prohibition is subject to remedial action that
would allow the use of the water, the water right holder shall
provide evidence that the water right holder is conducting the
remedial action with reasonable diligence.
(L) The nonuse occurred during a period of time within which
the exercise of all or part of the water right was not necessary
due to climatic conditions, so long as the water right holder had
a facility capable of handling the full allowed rate and duty,
and was otherwise ready, willing and able to use the entire
amount of water allowed under the water right.
(m) The nonuse occurred during a period of time within which
the water was included in a transfer application pending before
the { - Water Resources Department - } { + Oregon Department
of Natural Resources + }.
(n) The nonuse of a supplemental water right occurred during a
period of time when the primary water right used in conjunction
with that supplemental water right was leased as an in-stream
water right pursuant to ORS 537.348.
(3) Notwithstanding subsection (1) of this section, if the
owner of a perfected and developed water right uses less water to
accomplish the beneficial use allowed by the right, the right is
not subject to forfeiture so long as:
(a) The user has a facility capable of handling the entire rate
and duty authorized under the right; and
(b) The user is otherwise ready, willing and able to make full
use of the right.
(4) The right of all cities and towns in this state to acquire
rights to the use of the water of natural streams and lakes, not
otherwise appropriated, and subject to existing rights, for all
reasonable and usual municipal purposes, and for such future
reasonable and usual municipal purposes as may reasonably be
anticipated by reason of growth of population, or to secure
sufficient water supply in cases of emergency, is expressly
confirmed.
(5) After a water right is forfeited under subsection (1) of
this section, the water that was the subject of use shall revert
to the public and become again the subject of appropriation in
the manner provided by law, subject to existing priorities.
SECTION 1553. ORS 540.621 is amended to read:
540.621. Whenever the owner of a perfected and developed water
right certifies under oath to the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + } that
the water right has been abandoned by the owner and that the
owner desires cancellation thereof, the commission shall enter an
order canceling the water right. Effective upon the date of the
entering of such order, the water which was the subject of use
under the water right shall revert to the public and become again
the subject of appropriation in the manner provided by law,
subject to existing priorities.
SECTION 1554. ORS 540.631 is amended to read:
540.631. Whenever it appears to the satisfaction of the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + } upon the commission's own determination
or upon evidence submitted to the commission by any person that a
perfected and developed water right has been forfeited as
provided in ORS 540.610 (1), and would not be rebutted under ORS
540.610 (2), the commission shall initiate proceedings for the
cancellation of such water right by causing written notice of
such initiation of proceedings to be given by registered or
certified mail, return receipt requested, to the legal owner of
the lands to which the water right is appurtenant and to the
occupant of such lands. The notice to the legal owner shall be
addressed to the legal owner at the owner's last address of
record in the office of the county assessor of the county in
which the lands are located. The notice shall contain a complete
description of the water right and of the lands to which the
water right is appurtenant. The notice shall state that the legal
owner or the occupant has a period of 60 days from the date of
the mailing of the notice within which to protest the proposed
cancellation of the water right.
SECTION 1555. ORS 540.641 is amended to read:
540.641. (1) If the legal owner or the occupant receiving
notice as provided in ORS 540.631 fails to protest the proposed
cancellation of the water right within the 60-day period
prescribed in the notice, the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + } may
enter an order canceling the water right.
(2) If the legal owner or the occupant receiving notice as
provided in ORS 540.631 files a protest against the proposed
cancellation of the water right with the commission within the
60-day period prescribed in the notice, the commission shall fix
a time and place for a hearing on the protest. The commission
shall cause written notice of the hearing to be given at least 10
days prior to the hearing to the person protesting the
cancellation of the water right and to any other person who in
the opinion of the commission is an interested party to the
proceeding. The hearing shall be held by the commission and shall
be conducted under the provisions of ORS chapter 183 pertaining
to contested cases. After the hearing the commission shall enter
an order canceling the water right, canceling in part or
modifying the water right, or declaring that the water right
shall not be canceled or modified.
SECTION 1556. ORS 540.650 is amended to read:
540.650. If the order of the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + } or
the final decree on the appeal therefrom under ORS 540.641
cancels in part or modifies the water right, that portion of the
water right not canceled or continued as modified shall be
reaffirmed by a new water right certificate issued by the
commission. Such certificate shall be of the same character as
that described in ORS 539.140. The certificate shall be recorded
and transmitted to the owner of the water right as provided in
ORS 539.140.
SECTION 1557. ORS 540.660 is amended to read:
540.660. (1) If a watermaster has reason to believe that
circumstances exist that prevent a water right from being
exercised according to the terms and conditions of the water
right certificate issued under ORS 537.250 or 539.140, such as
the land to which the water right is appurtenant is covered by an
impermeable surface, or the diversion mechanism used to
appropriate water under a water right is no longer operable, the
watermaster shall file an affidavit with the { - Water
Resources Director - } { + Director of the Oregon Department of
Natural Resources + }. The affidavit shall state that to the
best of the watermaster's knowledge, there is no physical way the
water may be applied to a beneficial use in accordance with the
terms and conditions of the water right certificate.
(2) If the watermaster files an affidavit under subsection (1)
of this section each year for five consecutive years, the
affidavits shall constitute prima facie evidence that the water
has not been applied to a beneficial use for five years and the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + } shall initiate proceedings under ORS
540.631 to cancel the water right.
(3) The { - Water Resources Department - } { + Oregon
Department of Natural Resources + } shall provide notice of the
affidavit filed with the { - Water Resources - } director
under subsection (1) of this section. The department shall
provide such notice in the following manner:
(a) If there are 25 or fewer record owners of the land, the
department shall mail a copy of the affidavit to each record
owner.
(b) If there are more than 25 record owners, the department
shall provide general notice by publication according to the
procedures established in ORS 193.010 to 193.100.
(c) If the land is within the boundaries of an irrigation
district, the department shall mail a copy of the affidavit to
the irrigation district.
(4) As used in this section, 'record owner' means the person
shown as the owner of the land in the county deed records
established under ORS chapter 93.
SECTION 1558. ORS 540.670 is amended to read:
540.670. (1) The cancellation of a primary water right for
nonuse under ORS 540.641 shall not also cancel a supplemental
water right unless the supplemental water right also has not been
used beneficially for five or more years.
(2) If the { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } cancels a primary water right
under ORS 540.641 the commission may issue a new water right
certificate changing the supplemental water right to a primary
right if the commission finds that the change would not result in
injury to existing water rights.
(3) A supplemental right changed to a primary right under
subsection (2) of this section shall retain the priority date of
the supplemental right.
SECTION 1559. ORS 540.740 is amended to read:
540.740. Any person who may be injured by the action of any
watermaster may appeal to the circuit court for an injunction.
The injunction shall only be issued in case it can be shown at
the hearing that the watermaster has failed to carry into effect
the order of the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } or decrees of the
court determining the existing rights to the use of water.
SECTION 1560. ORS 541.220 is amended to read:
541.220. In any stream system where construction is
contemplated by the United States under the Act of Congress
approved June 17, 1902, 32 Stat. 388 to 390, and known as the
Reclamation Act, the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } shall make a
hydrographic survey of the stream system, and shall deliver an
abstract thereof together with an abstract of all data necessary
for the determination of all rights for the use of the waters of
such system, to the Attorney General. The Attorney General,
together with the district attorneys of the districts affected by
the stream system shall, at the request of the Secretary of the
Interior, enter suit on behalf of the State of Oregon, in the
name of the state, for the determination of all rights for the
use of the water, and shall diligently prosecute the same to a
final adjudication.
SECTION 1561. ORS 541.310 is amended to read:
541.310. In any suit wherein the state is a party, for
determination of a right to the use of the waters of any stream
system, all who claim the right to use the waters shall be made
parties. When any such suit has been filed the court shall call
upon the { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } to make or furnish a complete
hydrographic survey of the stream system as provided in ORS
541.220, in order to obtain all data necessary to the
determination of the rights involved. The disbursements made in
litigating the rights involved in the suit shall be taxed by the
court as in other equity suits.
SECTION 1562. ORS 541.320 is amended to read:
541.320. Upon the adjudication of the rights to the use of the
water of a stream system, a certified copy of the decree shall be
prepared by the clerk of the court, without charge, and filed in
the { - Water Resources Department - } { + Oregon Department
of Natural Resources + }. The decree shall declare, as to the
water right adjudged to each party, whether riparian or by
appropriation, the extent, the priority, amount, purpose, place
of use, and, as to water used for irrigation, the specific tracts
of land to which it shall be appurtenant, together with such
other conditions as may be necessary to define the right and its
priority.
SECTION 1563. ORS 541.327 is amended to read:
541.327. (1) If a district fails or refuses to act under ORS
541.329 and 541.331, the owner of land with an appurtenant water
right within a district and subject to assessment by the district
may transfer the use or place of use of the water right on or
before July 1, 1994, pursuant to ORS 541.333. An owner
transferring the use or place of use under this subsection shall
comply with ORS 536.050.
(2) If the owners of land within a quarter quarter of a section
in a district agree as to the use and place of use of all water
rights in the quarter quarter of the section subject to
assessment by the district, the owners may jointly submit an
application, without the fees required under ORS 536.050, to the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + } to conform the department's records to the
present usage within the quarter quarter of a section. The
application must be filed in accordance with ORS 541.333 on or
before July 1, 1994.
(3) The district or users within a district authorized to
participate in the process described under ORS 541.325 to 541.333
shall be limited to those districts or users who have notified
the department on or before July 1, 1993, of their intention to
submit a petition.
(4) Notwithstanding subsection (3) of this section, the Walla
Walla River Irrigation District, or its successor district formed
under ORS chapter 545 and created after July 1, 1994, may
participate in the process described under ORS 541.325 to 541.333
if the district notifies the department on or before June 30,
2004.
SECTION 1564. ORS 541.329 is amended to read:
541.329. (1) Pursuant to the requirements of subsection (2) of
this section, a district may petition the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + } for
approval and acceptance of a district map indicating the location
and use of the water rights within the district or any part
thereof. The petition and map shall be in a form satisfactory to
the commission and shall be certified by the district rather than
a certified water right examiner. For a district that notifies
the { - Water Resources Department - } { + Oregon Department
of Natural Resources + } under ORS 541.327 (4), the map must be
submitted in an electronic format meeting the standards set by
the department. The petition and map may not expand a water right
of the district or its users beyond the total right of record of
the district. If the district has met the requirements of ORS
541.325 to 541.331 and after the opportunity for hearing under
ORS 541.331, the commission shall instruct the Director { + of
the Oregon Department of Natural Resources + } to issue a new
certificate to the district listing the requested locations and
uses and retaining the original priority date. If the commission
denies the petition, the commission shall hold a hearing on the
denial. Notice and conduct of the hearing shall be under the
provisions of ORS chapter 183 pertaining to contested cases. The
hearing shall be conducted in the area where the right is located
unless the parties and the persons who file the protest under
this section stipulate otherwise.
(2) The petition required under subsection (1) of this section
shall be submitted on or before July 1, 1994, or before June 30,
2010, for a district notifying the department under ORS 541.327
(4), and shall include:
(a) The name of the district and the certificate number of each
water right contained in the petition.
(b) The names of all users within the district whose lands are
included in the petition.
(c) A general description of the district boundaries.
(d) A general description of the users' land and all water
rights per each parcel affected by the petition and the map. If
the water right is on a tract of land of five acres or less, a
notation of the acres of water right on the assessor's tax map
shall be sufficient for identification of the place of use and
the extent of use.
(e) A description of the use which is proposed to be made of
the water on each parcel.
(f) An affirmation by the petitioner that the map and petition
are accurate to the best of the petitioner's knowledge.
(3) A petition submitted under this section shall contain no
more acres of land than the least of the following:
(a) The number of acres assessed by the district as of July 1,
1989;
(b) The number of acres assessed by the district as of July 1,
1993; or
(c) If a district notifies the department under ORS 541.327
(4), the number of acres assessed by the district as of December
31, 2003.
(4) Before submitting a petition under subsection (2) of this
section, the district shall send a notice to the user of every
parcel whose right of record is to be altered, as evidenced by
the district's records. This notice shall be sent to the
last-known address for the user with a return receipt requested.
The notice shall include the number of acre-feet of water or its
equivalent, for which the user is being assessed, a general
description or tax lot of the land to which the water is
assigned, a description of the use and a request for confirmation
that the information in the notice is correct. Thirty days after
the notice is mailed, the district shall prepare a petition and
map as described in subsections (1) and (2) of this section.
Payment for water by the user or the user's predecessor for a
period of five years before the petition shall create a
rebuttable presumption that the number of acres billed and paid
by the user or the user's predecessor is equal to the user's
water right.
(5) Within 30 days after the commission issues a proposed order
regarding the petition, the district shall send notice to the
users of the district whose right of record is to be altered by
the proposed order. This notice shall be sent to the last-known
address of the user with a return receipt requested. The notice
shall include the number of acres of land, or its equivalent, for
which the user is being assessed, a general description or tax
lot number of the land to which the water is assigned and a
description of the use. In addition to the notice of the proposed
order that the district sends to the users, the district shall
publish at the same time notice in a newspaper having general
circulation in the area in which the water rights are located for
a period of at least three weeks. Not less than one publication
in each week shall be made. The notice shall state:
(a) The number of acres of water right that each parcel shall
receive and the associated priority dates;
(b) That the proposed map and order are available for
inspection at the office of the district during normal business
hours for a period of 60 days from the date of first publication;
(c) That not less than 60 days after the date of first
publication, the commission shall approve the petition and map
and issue a final order unless a protest is filed or the petition
does not meet the requirements of subsections (1) and (2) of this
section; and
(d) That the user has the right to protest the proposed order
and map as described in ORS 541.331.
(6) If the commission returns a petition or map to a district
for correction, the commission may prescribe a deadline for the
petitioner to provide additional information or correct the
petition or map. If the petitioner fails to meet the deadline
prescribed by the commission, the commission may deny the
petition.
SECTION 1565. ORS 541.331 is amended to read:
541.331. (1) Any user may file with the { - Water Resources
Department - } { + Oregon Department of Natural Resources + },
within 60 days after the date of first publication, under ORS
541.329, a protest against a proposed order approving the
petition. Whenever a timely protest is filed or in the opinion of
the { - Water Resources Director - } { + Director of the
Oregon Department of Natural Resources + } a hearing is necessary
to determine whether the district has met the requirements of ORS
541.325 to 541.333 or the proposed changes described in the
proposed order would result in injury to existing water rights,
the department shall hold a hearing on the matter. The hearing
shall be conducted according to the provisions of ORS chapter 183
applicable to contested cases. The hearing shall be held in the
area where the rights are located unless the parties and the
persons who filed the protest under this section stipulate
otherwise.
(2) If after examination or hearing, the department finds that
the district has met the requirements of ORS 541.325 to 541.331
and that the changes described in the proposed order would not
result in injury to existing water rights, the department shall
issue a final order approving the petition and map as described
in the proposed order. If a water right certificate for the water
right has been issued previously, the department shall cancel the
previous certificate and issue a new certificate that conforms to
the final order and map and retains the original priority date.
(3) A certificate issued under this section shall have the
evidentiary effect provided for in ORS 537.270 except when the
right to appropriate water described in the certificate is
abandoned after the certificate is amended or issued.
(4) The department may approve for inclusion in a new
certificate under ORS 541.329 and this section only land which,
on July 1, 1993, or, if a district notifies the department under
ORS 541.327 (4), on December 31, 2003, is:
(a) Land within the legal boundaries of the district as those
boundaries were originally described or as they may have been
changed by legally prescribed inclusion or exclusion proceedings.
(b) Land for which inclusion in the district has been requested
previously as prescribed by law.
(c) Land on which a previously perfected water right has been
applied beneficially and for which the user has been charged or
assessed by the district in at least one of the last five years
and for which the user is currently being charged or assessed.
SECTION 1566. ORS 541.333 is amended to read:
541.333. (1) Whenever the owner of a water right for
irrigation, domestic use, stock water storage or other use, for
any reason desires to change the place of use, the point of
diversion or the use made of the water under ORS 541.327, an
application shall be filed with the { - Water Resources
Department - } { + Oregon Department of Natural Resources + }.
(2) The application required under subsection (1) of this
section shall include:
(a) The name of the owner;
(b) The previous use of the water;
(c) A description of the premises upon which the water is used;
(d) A description of the premises upon which it is proposed to
use the water;
(e) The use which is proposed to be made of the water;
(f) The reasons for making the proposed change;
(g) If the application is made under ORS 541.327 (1), evidence
that the water has been used within the past five years upon
lands owned or controlled by the owner of the water right;
(h) In the event the application is made pursuant to ORS
541.327 (2), evidence that the water has been used within the
past five years in the quarter quarter of a section; and
(i) The approval of the district in which the water right is
located.
(3) The description of the premises or mapping required under
ORS 541.329 (2) shall not require a map prepared by a certified
water right examiner, but shall be in a form satisfactory to the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + }. If the water right is on a tract of
land of five acres or less, the assessor's tax map with a
notation of the acres of water right shall be sufficient for
identification of the tract and place of use.
(4) A certificate issued under this section has the evidentiary
effect provided for in ORS 537.270 except when the right to
appropriate water described in the certificate is abandoned after
the certificate is amended or issued.
SECTION 1567. ORS 541.510 is amended to read:
541.510. (1) Whenever it appears to the satisfaction of the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + } upon the commission's own determination
or upon evidence submitted by any person that the release of
water from an impoundment or diversion structure constructed
before or after May 26, 1959, endangers or may endanger the
public safety, the commission shall send a written notice to the
owner or operator of the structure.
(2) The notice provided for in subsection (1) of this section
shall state:
(a) That the release of water from the impoundment or diversion
structure endangers or may endanger the public safety.
(b) That the owner or operator of the structure shall within a
time to be set by the commission post notices downstream from the
structure at places of public access to the stream to be
designated by the commission warning the public that the stream
level below the structure is subject to fluctuation.
SECTION 1568. ORS 541.515 is amended to read:
541.515. (1) Whenever it appears to the satisfaction of the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + }, upon the commission's own determination
or upon evidence submitted by any person that the present or
proposed release of stored water from an impoundment or diversion
structure, including any water power project, constructed before
or after May 1, 1961, results in rapid increase in the stream
level below the structure which creates or will create a hazard
to human life or property, the commission shall cause written
notice of such determination to be mailed to the owner or
operator of the structure.
(2) The notice provided for in subsection (1) of this section
shall state:
(a) That the present or proposed release of stored water from
the impoundment or diversion structure creates or may create an
unreasonable hazard to human life or property.
(b) The manner in which such unreasonable hazard to human life
or property is or may be created.
(c) The action which is required, in the opinion of the
commission, to minimize such unreasonable hazard to human life or
property.
(d) That the owner or operator of the impoundment or diversion
structure, within 15 days after the mailing of the notice, may
request in writing that the commission hold a hearing on such
unreasonable hazard or action required to minimize such
unreasonable hazard, and that upon failure to request a hearing
the commission shall make an order stating the terms, limitations
and conditions of the action required to minimize such
unreasonable hazard.
SECTION 1569. ORS 541.520 is amended to read:
541.520. If, within 15 days after the mailing of the notice
provided for in ORS 541.515, the owner or operator of the
impoundment or diversion structure fails to request in writing
that the { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } hold a hearing, the commission
shall make and file in the { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } an order stating
the terms, limitations and conditions relating to the release of
water from the structure necessary to minimize unreasonable
hazard to human life or property as set forth in the notice. The
order shall become effective upon filing a copy in the
{ - Water Resources - } department. The commission shall cause
a copy of the order to be mailed to the owner or operator of the
structure. The order is not subject to appeal.
SECTION 1570. ORS 541.525 is amended to read:
541.525. (1) If, within 15 days after mailing of the notice
provided for in ORS 541.515, the owner or operator of the
impoundment or diversion structure requests in writing that the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + } hold a hearing, the commission shall
hold a hearing in accordance with ORS chapter 183 on the hazard
to human life or property which is or will be created by the
rapid increase in the stream level below the structure resulting
from the release of water from the structure and the terms,
limitations and conditions relating to such release of water
necessary to minimize such unreasonable hazard.
(2) At least 10 days prior to the hearing the commission, in
addition to the notice requirements of ORS chapter 183, shall
cause a copy of the notice to be published in a newspaper of
general circulation in each county in which the structure is
located and in which unreasonable hazard to human life or
property is or may be created.
SECTION 1571. ORS 541.530 is amended to read:
541.530. After the hearing provided for in ORS 541.525, if the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + } determines that the release of stored
water from the impoundment or diversion structure results or will
result in rapid increase in the stream level below the structure
and the increase creates or will create an unreasonable hazard to
human life or property, the commission shall make and file in the
offices of the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + } an order stating the terms, limitations and
conditions relating to the release of water from the structure
necessary to minimize the unreasonable hazard. In determining
what constitutes unreasonable hazard and what terms, limitations
and conditions are necessary to minimize it, the commission shall
consider the likelihood of harm to the public, recreation
benefits, power benefits, agriculture benefits, purpose of the
structure, water flows, extent, nature and time of use by the
public and all other material factors.
SECTION 1572. ORS 541.535 is amended to read:
541.535. An order of the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } under ORS 541.520 or
541.530 may require the owner or operator of an impoundment or
diversion structure to install one or more automatic stream level
recording devices satisfactory to the commission at one or more
locations satisfactory to the commission. The cost of each such
device and the installation and maintenance thereof shall be paid
by the owner or operator of the structure.
SECTION 1573. ORS 541.540 is amended to read:
541.540. When conditions beyond the control of the owner or
operator of an impoundment or diversion structure, to which an
order of the { - Water Resources Commission - } { + Oregon
Natural Resources Commission + }, made as provided in ORS 541.520
or 541.530 { + , + } relates, threaten the safety of the
structure, and the release of water from the structure contrary
to the terms, limitations and conditions stated in the order is
or may be necessary to remove such threat:
(1) The terms, limitations and conditions of the order shall
not apply to such release of water.
(2) The owner, operator or person in immediate charge of the
structure shall immediately notify the commission or the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + } of the situation.
(3) The owner, operator or person in immediate charge of the
structure shall immediately notify, to the best of the person's
ability, those persons whose life or property may be threatened
by such release of water.
SECTION 1574. ORS 541.545 is amended to read:
541.545. (1) No person shall fail to comply with an order of
the { - Water Resources Commission - } { + Oregon Natural
Resources Commission + } made as provided in ORS 541.520 or
541.530.
(2) The commission may enforce any order made as provided in
ORS 541.520 or 541.530, and may prosecute proceedings to enjoin
violations of subsection (1) of this section.
SECTION 1575. ORS 541.561 is amended to read:
541.561. (1) The { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } shall establish a
grant program to pay the qualifying costs of planning studies
performed to evaluate the feasibility of developing a water
conservation, reuse or storage project, as described in ORS
541.566. A grant under this section may be made to a local
government as defined in ORS 174.116, to an Indian tribe as
defined in ORS 391.802 or to a person.
(2) In lieu of grants, the department may pay the cost of
providing direct services, including but not limited to technical
planning services, for a planning study that is eligible for a
grant under this section.
(3) A grant or the cost of direct services provided under this
section may not exceed $500,000 per project. A grant or payment
for direct services may be provided only if the amount of the
grant or the cost of the direct services is matched by funding
from another source that is not less than a dollar-for-dollar
match of the amount or cost.
(4) Grants and the cost of direct services provided under this
section must be paid for from moneys available in the Water
Conservation, Reuse and Storage Investment Fund.
(5)(a) In evaluating above ground storage projects for awards
of grants or payments for direct services under this section, the
department shall give priority to projects that include
provisions for using stored water to augment in-stream flows to
conserve, maintain and enhance aquatic life, fish life or other
ecological values.
(b) In evaluating all other eligible projects, the department
shall give priority to projects identified by the department in a
statewide water assessment and inventory for the award of grants
or provision of payment for direct services under this section.
SECTION 1576. ORS 541.576 is amended to read:
541.576. (1) The Water Conservation, Reuse and Storage
Investment Fund is established in the State Treasury, separate
and distinct from the General Fund. Interest earned by the Water
Conservation, Reuse and Storage Investment Fund shall be credited
to the General Fund. Moneys in the Water Conservation, Reuse and
Storage Investment Fund are continuously appropriated to the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + } to award grants and to pay the cost of
direct services provided under ORS 541.561.
(2) The Water Conservation, Reuse and Storage Investment Fund
shall consist of:
(a) Moneys appropriated to the fund by the Legislative
Assembly;
(b) Any moneys that may be transferred to the fund by the
federal government, a state agency or a local government; and
(c) Grant repayments, if any.
SECTION 1577. ORS 541.581 is amended to read:
541.581. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } shall adopt rules necessary to
administer ORS 541.561 to 541.581, including rules that:
(1) Establish reporting requirements for grants awarded under
ORS 541.561;
(2) Provide for public comment before the award of grants and
payment for direct services under ORS 541.561; and
(3) Implement the priorities required by ORS 541.561.
SECTION 1578. ORS 541.606 is amended to read:
541.606. (1) The Water Investment Grant Fund is established in
the State Treasury, separate and distinct from the General Fund.
Interest earned by the Water Investment Grant Fund shall be
credited to the Water Investment Grant Fund. Moneys in the Water
Investment Grant Fund are continuously appropriated to the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + } to fund grants under ORS 541.631 and to pay
the administrative costs of the department in operating a grant
program under ORS 541.600 to 541.641 and sections 20, 25 and 26,
chapter 907, Oregon Laws 2009.
(2) The Water Investment Grant Fund consists of the following:
(a) Moneys appropriated to the fund by the Legislative
Assembly.
(b) Any moneys that may be transferred to the fund by the
federal government, a state agency or a local government.
(c) Any bond proceeds authorized for deposit to the fund.
(d) Proceeds from grant application fees described in ORS
541.611.
(e) Gifts, grants or donations to the fund. Notwithstanding
subsection (1) of this section, the department may use moneys
received under this paragraph according to any terms and
conditions of the gift, grant or donation.
(3)(a) Except as provided in paragraph (b) of this subsection,
the department may make a grant for a qualifying project from the
fund to:
(A) An Indian tribe as defined in ORS 391.802;
(B) A person as defined in ORS 536.007; or
(C) A for-profit or nonprofit cooperative.
(b) The department may not issue a grant from the fund to a
municipality or a provider of water for municipal purposes.
SECTION 1579. ORS 541.611 is amended to read:
541.611. (1) Any person or entity described in ORS 541.606 may
file an application with the { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } for a grant from
the Water Investment Grant Fund to enable the construction of a
water development project located in the Columbia River Basin.
(2) An application filed under this section must be in a form
prescribed by the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } and include the
following:
(a) A description of the nature and the primary and secondary
purposes of the project.
(b) An analysis of the need for the project and for the water
that the project is intended to deliver.
(c) Identification and description of the project components
sufficient to meet the conditions for project funding approval
under ORS 541.631.
(d) A description of the economic feasibility of the project,
including but not limited to:
(A) The costs of the project; and
(B) Information about the financial and other aspects of the
operation and maintenance plans for the project.
(e) Suggestions for interim and long-term project performance
benchmarks.
(f) An analysis of the project impacts including, but not
limited to, the:
(A) Expected economic public benefits.
(B) Expected social and cultural public benefits.
(C) Expected net environmental public benefits.
(g) An evaluation of the potential impact on water quality,
based upon water quality standards.
(h) Proof that the applicant has acquired at least a final
order or limited license for necessary water permits from the
department.
(i) Letters of support for the proposed water resource
development project.
(j) If the project has not previously received state funding, a
statement regarding whether other moneys are available or have
been sought or received for the implementation of the project.
(k) Information sufficient to demonstrate that the amount of
the requested funding will be matched by the funding from another
source that is not less than a dollar-for-dollar match.
(L) Any other information required by the department.
(3) If the project will receive surface water impounded from a
perennial stream, water diverted from a stream that supports
sensitive, threatened or endangered fish, or more than 500
acre-feet of diverted surface water annually, in addition to the
other information required under this section the application
shall include the following completed studies:
(a) An analysis of by-pass, optimum peak, flushing and other
ecological flows of the affected stream and of the impact of the
project on those flows, that conforms to standards set by the
department { - in consultation with the State Department of
Fish and Wildlife and other relevant agencies - } ;
(b) An independent comparative analysis of alternative means of
supplying the water intended to be generated by the project,
including but not limited to the costs and benefits of
conservation, reuse and alternatives and the extent to which
long-term water supply needs may be met using those alternatives;
and
(c) Evaluation of the need for and feasibility of using
project-derived water to augment in-stream flows to conserve,
maintain and enhance aquatic life, fish life and any other
ecological values.
(4) If the applicant is an agricultural water supplier, the
applicant must have an approved agriculture water management and
conservation plan, have submitted a completed agricultural water
management and conservation plan to the { - Water Resources - }
department for approval or be in the process of completing or
updating a water management and conservation plan.
(5) The commission may establish fees for filing applications
for a grant under this section. Moneys from the application fees
established by the commission shall be deposited to the Water
Investment Grant Fund.
(6) An analysis and evaluation conducted as part of a study
performed pursuant to ORS 541.561 to 541.581 and sections 5 and
6, chapter 13, Oregon Laws 2008, is deemed to satisfy the
requirements of subsection (3) of this section.
SECTION 1580. ORS 541.616 is amended to read:
541.616. (1) If an application filed under ORS 541.611 or
section 20, chapter 907, Oregon Laws 2009, lacks any required
information, the { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } may reject the
application or require the applicant to submit additional
information.
(2) Upon receipt of a completed application filed under ORS
541.611 or section 20, chapter 907, Oregon Laws 2009, the
{ - department - } { + Oregon Department of Natural
Resources + } shall provide public notice by posting the
application on the department's website for a 60-day period prior
to issuing a loan or grant to the applicant.
(3) The { - department - } { + Oregon Department of Natural
Resources + } shall provide for the receipt of public comment on
the application during the 60-day period that the application is
posted on the department website, as specified by the { - Water
Resources Commission - } { + Oregon Natural Resources
Commission + } by rule.
(4) The { - department - } { + Oregon Department of Natural
Resources + } shall review the application information filed
under ORS 541.611 or section 20, chapter 907, Oregon Laws 2009.
The department shall commence the assessment no later than 60
days after receiving the application.
{ - (5) The department shall assess each project in
consultation with the State Department of Fish and Wildlife, the
State Parks and Recreation Department, the Department of
Environmental Quality and affected tribal governments, and with
other interested parties as appropriate. If a project may affect
agricultural use, the Water Resources Department shall also
assess the project in consultation with the State Department of
Agriculture. - }
{ + (5) The Oregon Department of Natural Resources shall
assess each project in consultation with the Department of
Environmental Quality, affected tribal governments and, if
appropriate, other interested parties. If a project may affect
agricultural use, the Oregon Department of Natural Resources also
shall assess the project in consultation with the State
Department of Agriculture. + }
(6) In assessing the net environmental public benefit of the
project, the { - Water Resources Department - } { + Oregon
Department of Natural Resources + } shall weigh the project's
various environmental impacts on, and enhancements to, all of the
forms of environmental benefit described in ORS 541.600 (2).
SECTION 1581. ORS 541.616, as amended by section 42, chapter
907, Oregon Laws 2009, is amended to read:
541.616. (1) If an application filed under ORS 541.611 lacks
any required information, the { - Water Resources
Department - } { + Oregon Department of Natural Resources + }
may reject the application or require the applicant to submit
additional information.
(2) Upon receipt of a completed application filed under ORS
541.611, the { - department - } { + Oregon Department of
Natural Resources + } shall provide public notice by posting the
application on the department's website for a 60-day period prior
to issuing a grant to the applicant.
(3) The { - department - } { + Oregon Department of Natural
Resources + } shall provide for the receipt of public comment on
the application during the 60-day period that the application is
posted on the department website, as specified by the { - Water
Resources Commission - } { + Oregon Natural Resources
Commission + } by rule.
(4) The { - department - } { + Oregon Department of Natural
Resources + } shall review the application information filed
under ORS 541.611. The department shall commence the assessment
no later than 60 days after receiving the application.
{ - (5) The department shall assess each project in
consultation with the State Department of Fish and Wildlife, the
State Parks and Recreation Department, the Department of
Environmental Quality and affected tribal governments, and with
other interested parties as appropriate. If a project may affect
agricultural use, the Water Resources Department shall also
assess the project in consultation with the State Department of
Agriculture. - }
{ + (5) The Oregon Department of Natural Resources shall
assess each project in consultation with the Department of
Environmental Quality, affected tribal governments and, if
appropriate, other interested parties. If a project may affect
agricultural use, the Oregon Department of Natural Resources also
shall assess the project in consultation with the State
Department of Agriculture. + }
(6) In assessing the net environmental public benefit of the
project, the { - Water Resources Department - } { + Oregon
Department of Natural Resources + } shall weigh the project's
various environmental impacts on, and enhancements to, all of the
forms of environmental benefit described in ORS 541.600 (2).
SECTION 1582. ORS 541.621 is amended to read:
541.621. (1) The { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } shall adopt rules
establishing guidelines for the { - Water Resources
Department's - } review of applications { + by the Oregon
Department of Natural Resources + } for a grant filed under ORS
541.611 and for the assessment of projects for which grants are
sought. The guidelines shall include:
(a) Evaluation of the awarding of grants as a financial
incentive to accomplish the goals of the grant program;
(b) Consideration of the financial needs of applicants and
other special circumstances; and
(c) Consideration of the economic public benefit, social and
cultural public benefit and net environmental public benefit of
the project.
(2) The guidelines shall give priority to projects that:
(a) Recharge aquifers in limited and critical ground water
areas;
(b) Are designed to deliver the greatest net environmental
public benefit;
(c) Include in-stream flow restoration components;
(d) Conserve water; or
(e) Are water storage projects that provide for stored water to
be used for restoring or augmenting streamflows in a manner that
conserves, maintains and enhances water quality, aquatic life,
fish life or other ecological values.
(3) The guidelines shall require that the department consider
the following:
(a) Local support for the project;
(b) Oregon's in-stream and out-of-stream water needs as
influenced by existing and anticipated climate change;
(c) The project's potential to facilitate economic development;
(d) The projected impact of the project on public health
matters relating to water; and
(e) Statewide water needs.
(4) The commission shall adopt rules for use by the { - Water
Resources - } department in assessing the net environmental
public benefits of a project under ORS 541.616. The commission
must consult with, and provide a 60-day period for the receipt of
comment from, { - the State Department of Fish and Wildlife,
the State Parks and Recreation Department, - } the State
Department of Agriculture and the Department of Environmental
Quality before the commission adopts a rule described in this
subsection.
SECTION 1583. ORS 541.631 is amended to read:
541.631. (1) Subject to any additional qualifications or
restrictions under ORS 541.616, 541.621 or 541.636 or { - Water
Resources Commission rules, the Water Resources Department - }
{ + rules of the Oregon Natural Resources Commission, the Oregon
Department of Natural Resources + } may approve a grant
application filed under ORS 541.611 if the department finds that:
(a) The plan for the construction of the proposed project
complies with all applicable provisions related to water well
constructors under ORS 537.747 to 537.765, reservoirs and
diversion dams under ORS 540.340 and dams, dikes and hydraulic
structures or works in ORS 540.350;
(b) Planned diversions of surface water include provision for
fish screens and, if applicable, volitional fish passage;
(c) The use of surface water or ground water from the project
will be measured and reported;
(d) The applicant or beneficiaries of water from the project
measure and report, or have scheduled and financed the
measurement of, all existing water use at the point of diversion;
(e) There is a reasonable certainty that the project,
considered in total, will deliver a measurable net environmental
public benefit; and
(f) To the extent applicable, the project complies with
subsection (2) or (3) of this section.
(2) A water storage project must be designed:
(a) To provide for no more than 75 percent of new stored water
in the aquifer or above-ground storage location of the project to
be withdrawn for agricultural purposes and for not less than 25
percent of the new water to be dedicated for the purpose of
providing net environmental public benefits or in-stream
benefits; and
(b) To the extent practicable, to return dedicated new stored
water for stream augmentation at a time of year that the
{ - Water Resources Department, in consultation with the State
Department of Fish and Wildlife and - } { + department, in
consultation with + } relevant tribal governments, determines
will provide the maximum net environmental public benefit or
in-stream benefit.
(3) If more than 25 percent of the funding for a water storage
project is from grants of state moneys and is not subject to
repayment, the project must be designed to dedicate for the
purpose of providing net environmental public benefit or
in-stream benefit a percentage of the new stored water created by
the project that equals or exceeds the percentage of funding for
the project that is from grants of state moneys. The { - Water
Resources - } department shall manage the dedicated increment of
new stored water for net environmental public benefit or
in-stream benefit.
(4) On or before the earlier of six years after the issuance of
the ground water recharge permit or the date the water right
certificate is issued, the department shall quantify and legally
protect the increment of new water returned in stream from a
project described in this section.
(5) The department shall require as a contractual condition for
issuing the grant, and as a condition of any new water permit or
water right certificate, that the project be operated in a manner
that actually dedicates the percentage of new stored water for
net environmental public benefit or in-stream benefit that the
project was designed to dedicate for those purposes.
(6) The department may require that a project protect peak and
ecological flows to the extent { - determined by the State
Department of Fish and Wildlife to be - } { + that the
department determines that such protection is + } necessary.
(7) The commission, by rule, may allow the { - Water
Resources - } department to waive any requirement of this section
for the issuance of a grant, other than the requirement of a
measurable net environmental public benefit, if:
(a) The grant application requests less than $20,000; or
(b) The project is a conservation, efficiency, restoration or
reuse project that can be shown to the satisfaction of the
department to cause no harm to the source, any receiving stream,
fish or wildlife or existing water rights.
(8) This section and ORS 541.611, 541.616, 541.621, 541.636 and
541.641 do not limit the authority granted the Environmental
Quality Commission or the Department of Environmental Quality
under ORS chapter 468B.
SECTION 1584. ORS 541.631, as amended by section 30, chapter
907, Oregon Laws 2009, is amended to read:
541.631. (1) Subject to any additional qualifications or
restrictions under ORS 541.616, 541.621 or 541.636 or { - Water
Resources Commission rules, the Water Resources Department - }
{ + rules of the Oregon Natural Resources Commission, the Oregon
Department of Natural Resources + } may approve a grant
application filed under ORS 541.611 if the department finds that:
(a) The plan for the construction of the proposed project
complies with all applicable provisions related to water well
constructors under ORS 537.747 to 537.765, reservoirs and
diversion dams under ORS 540.340 and dams, dikes and hydraulic
structures or works in ORS 540.350;
(b) Planned diversions of surface water include provision for
fish screens and, if applicable, volitional fish passage;
(c) The use of surface water or ground water from the project
will be measured and reported;
(d) The applicant or beneficiaries of water from the project
measure and report, or have scheduled and financed the
measurement of, all existing water use at the point of diversion;
(e) There is a reasonable certainty that the project,
considered in total, will deliver a measurable net environmental
public benefit; and
(f) To the extent applicable, the project complies with
subsection (2) or (3) of this section.
(2) A water storage project must be designed:
(a) To provide for no more than 75 percent of new stored water
in the aquifer or above-ground storage location of the project to
be withdrawn for agricultural purposes and for not less than 25
percent of the new water to be dedicated for the purpose of
providing net environmental public benefits or in-stream
benefits; and
(b) To the extent practicable, to return dedicated new stored
water for stream augmentation at a time of year that the
{ - Water Resources Department, in consultation with the State
Department of Fish and Wildlife and - } { + department, in
consultation with + } relevant tribal governments, determines
will provide the maximum net environmental public benefit or
in-stream benefit.
(3) If more than 25 percent of the funding for a water storage
project is from grants of state moneys and is not subject to
repayment, the project must be designed to dedicate for the
purpose of providing net environmental public benefit or
in-stream benefit a percentage of the new stored water created by
the project that equals or exceeds the percentage of funding for
the project that is from grants of state moneys. The { - Water
Resources - } department shall manage the dedicated increment of
new stored water for net environmental public benefit or
in-stream benefit.
(4) On or before the earlier of six years after the issuance of
the ground water recharge permit or the date the water right
certificate is issued, the department shall quantify and legally
protect the increment of new water returned in stream from a
project described in this section.
(5) The department shall require as a contractual condition for
issuing the grant, and as a condition of any new water permit or
water right certificate, that if the project receives grants or
loans from state moneys other than a grant issued under this
section, the project must be operated in a manner that actually
dedicates the percentage of new stored water for net
environmental public benefit or in-stream benefit that the
project was designed to dedicate for those purposes.
(6) The department shall require that a project protect peak
and ecological flows to the extent { - determined by the State
Department of Fish and Wildlife to be - } { + that the
department determines that such protection is + } necessary.
(7) The commission, by rule, may allow the { - Water
Resources - } department to waive any requirement of this section
for the issuance of a grant, other than the requirement of a
measurable net environmental public benefit, if:
(a) The grant application requests less than $20,000; or
(b) The project is a conservation, efficiency, restoration or
reuse project that can be shown to the satisfaction of the
department to cause no harm to the source, any receiving stream,
fish or wildlife or existing water rights.
(8) This section and ORS 541.611, 541.616, 541.621, 541.636 and
541.641 do not limit the authority granted the Environmental
Quality Commission or the Department of Environmental Quality
under ORS chapter 468B.
SECTION 1585. ORS 541.636 is amended to read:
541.636. (1) The { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } shall ensure that
any necessary federal and state environmental impact approval
processes have been completed, and that agencies have issued any
relevant approvals and permits, before the advancement of any
grant moneys for a project described in ORS 541.631. The
department shall determine the amount of a grant from the Water
Investment Grant Fund on a case-by-case basis. The department may
not issue a grant under ORS 541.631 to provide assistance for
operational or maintenance expenses of a water development
project other than project startup costs.
(2) The department may issue a grant from the fund only if the
applicant agrees to periodic review of the project, including but
not limited to:
(a) Review of interim and long-term performance benchmarks set
by the department; and
(b) Program and fiscal audits to ensure that performance
benchmarks are achieved on project development, project benefits
and return on investment.
(3) The department may issue a grant from the fund only if the
applicant agrees to report to the department no later than two
years after receiving the grant moneys regarding the progress of
the project and the economic public benefit, social and cultural
public benefit and net environmental public benefit realized from
the project. The department shall provide copies of the applicant
reports received by the department during the biennium to an
interim committee of the Legislative Assembly dealing with
natural resources.
(4) The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } may establish reasonable fees
for management, oversight or review services that the department
provides for a water development project. The fees shall be
deposited to the Water Investment Grant Fund.
(5) For a project described in ORS 541.631 (2), the commission
may require compliance with the conditions described in ORS
541.631 (2) as a condition of any new water permits issued for
the project and may monitor operation of the project to ensure
compliance.
SECTION 1586. ORS 541.641 is amended to read:
541.641. Notwithstanding ORS 541.631 and section 25, chapter
907, Oregon Laws 2009, the { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } may issue a grant
under ORS 541.631 or a loan under section 25, chapter 907, Oregon
Laws 2009, to an agricultural water supplier that fails to
adequately demonstrate water measurement if:
(1) The water development project otherwise qualifies for that
grant or loan as provided under ORS 541.631 or section 25,
chapter 907, Oregon Laws 2009; and
(2) The department finds that:
(a) The applicant is seeking the grant or loan for the purpose
of implementing water measurement and the department has approved
an implementation plan to ensure that the water measurement
requirement is met; or
(b) The applicant has secured funding from a source other than
the state that will ensure implementation of water measurement.
SECTION 1587. ORS 541.641, as amended by section 43, chapter
907, Oregon Laws 2009, is amended to read:
541.641. Notwithstanding ORS 541.631, the { - Water Resources
Department - } { + Oregon Department of Natural Resources + }
may issue a grant under ORS 541.631 to an agricultural water
supplier that fails to adequately demonstrate water measurement
if:
(1) The water development project otherwise qualifies for that
grant as provided under ORS 541.631; and
(2) The department finds that:
(a) The applicant is seeking the grant for the purpose of
implementing water measurement and the department has approved an
implementation plan to ensure that the water measurement
requirement is met; or
(b) The applicant has secured funding from a source other than
the state that will ensure implementation of water measurement.
SECTION 1588. ORS 541.646 is amended to read:
541.646. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } may adopt rules the commission
considers reasonable for the administration and enforcement of
ORS 541.600 to 541.641 and sections 20, 25 and 26, chapter 907,
Oregon Laws 2009.
SECTION 1589. ORS 541.700 is amended to read:
541.700. As used in ORS 541.700 to 541.855, unless the context
requires otherwise:
{ - (1) 'Commission' means the Water Resources Commission
appointed under ORS 536.022. - }
{ - (2) - } { + (1) + } 'Construction' means the
construction, or improvement or rehabilitation, in whole or in
part, of a water development project, including planning and
engineering work, purchasing or refinancing directly related to
such construction or improvement or rehabilitation, or any
combination of such construction or improvement or
rehabilitation. As used in this subsection:
(a) 'Purchasing' means the purchasing of materials, land or
existing facilities necessary to complete a water development
project.
(b) 'Refinancing' includes refinancing existing debt of a water
developer, as defined in subsection { - (7)(f) to (m) and
(o) - } { + (5)(f) to (m) and (o) + } of this section, in order
to complete a water development project or to provide adequate
security for a water development loan, but does not include
refinancing existing debt only to reduce interest rates or costs
to the borrower or to pay off existing debt.
{ - (3) 'Director' means the Water Resources Director
appointed pursuant to ORS 536.032. - }
{ - (4) - } { + (2) + } 'Federal water development project'
means any water development project that receives funding from
the federal government, or any agency or instrumentality of the
United States.
{ - (5) - } { + (3) + }(a) 'Secondary use' means:
(A) Any water-related recreational use.
(B) Any flood control use.
(C) Any power generation use.
(D) Any water supply system utilized as a domestic water system
for the benefit of an individual residence related to the
operation of the water development project.
(b) 'Secondary use' does not include any use that is
incompatible with a water development project.
{ - (6) - } { + (4) + } 'Water development project' means:
(a) An undertaking, in whole or in part, in this state for the
purpose of irrigation, including structures for the application
of water for agricultural harvest activities, dams, storage
reservoirs, wells or well systems, pumping plants, pipelines,
canals, ditches, revetments, water supply systems used for the
purpose of agricultural temperature control and any other
structure, facility and property necessary or convenient for
supplying lands with water for irrigation purposes.
(b) An undertaking, in whole or in part, in this state for the
purpose of drainage, including ditching, tiling, piping, channel
improvement, pumping plants or other agronomically approved
methods of land drainage that will increase soil versatility and
productivity.
(c) An undertaking, in whole or in part, in this state for the
purpose of providing water for municipal use, which may include
safe drinking water for communities with population less than
30,000, including dams, storage reservoirs, wells or well
systems, pumping plants, treatment facilities, pipelines, canals,
ditches, revetments and all other structures and facilities
necessary or convenient for supplying water. An undertaking may
provide water to two or more communities with a combined
population of more than 30,000. An undertaking may be part of a
project that provides water to a community with a population of
more than 30,000, but loans of moneys from the Water Development
Fund, including moneys in ORS 285B.563 (11) may be made only to
communities served by the project that have a population of less
than 30,000.
(d) An undertaking, in whole or in part, in this state for the
purpose of fish protection, including fish screening or by-pass
devices, fishways and all other structures and facilities
necessary or convenient for providing fish protection.
(e) An undertaking, in whole or in part, in this state for the
purpose of enhancing watershed health or improving fish habitat,
including methods and materials to restore, maintain and enhance
water quality, streamflows and the biological, chemical and
physical integrity of the riparian zones and associated uplands
of the state's rivers, lakes and estuaries systems { - and
recommended by the Oregon Watershed Enhancement Board established
under ORS 541.360 - } .
(f) Secondary uses in conjunction with projects described in
paragraphs (a) to (e) of this subsection.
{ - (7) - } { + (5) + } 'Water developer' means:
(a) Any individual resident of this state;
(b) Any partnership for profit subject to the provisions of ORS
chapter 67 or 70, whose principal income is from farming in
Oregon;
(c) Any corporation for profit subject to the provisions of ORS
chapter 60, whose principal income is from farming in Oregon;
(d) Any nonprofit corporation subject to the provisions of ORS
chapter 65, whose principal income is from farming in Oregon;
(e) Any cooperative subject to the provisions of ORS chapter
62, whose principal income is from farming in Oregon;
(f) Any irrigation district organized under or subject to ORS
chapter 545;
(g) Any water improvement district organized under ORS chapter
552;
(h) Any water control district organized under ORS chapter 553;
(i) Any irrigation or drainage corporation organized under or
subject to ORS chapter 554;
(j) Any drainage district organized under ORS chapter 547 or
subject to all or part of ORS chapter 545;
(k) Any corporation, cooperative, company or other association
formed prior to 1917 for the purpose of distributing water for
irrigation purposes;
(L) Any port district organized under ORS 777.005 to 777.725,
777.915 to 777.953 and 777.990;
(m) Any city or county;
(n) Any organization formed for the purpose of distributing
water for community water supply; or
(o) Any local soil and water conservation district organized
under ORS 568.210 to 568.808 and 568.900 to 568.933.
SECTION 1590. ORS 541.703 is amended to read:
541.703. Of the applications filed under ORS 541.705 for
assistance in constructing a water development project for
municipal use, the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } shall give
preference for approval to those projects required to be
undertaken as a result of a proceeding under ORS 222.840 to
222.915 or 431.705 to 431.760 to alleviate conditions
constituting a danger to public health.
SECTION 1591. ORS 541.705 is amended to read:
541.705. (1) Except as provided in section 20, chapter 907,
Oregon Laws 2009, for a water development project in the Columbia
River Basin, any water developer may file with the { - Water
Resources Commission - } { + Oregon Natural Resources
Commission + } an application to enable the construction of a
water development project as provided in ORS 541.700 to 541.855.
The application shall be filed in the manner, be in the form and
contain or be accompanied by any information prescribed by the
commission. The commission, in considering applications, shall
encourage the largest number of users of the Water Development
Fund and shall consider the impact on the family farm units of
the state.
(2) In addition to other requirements prescribed by the
commission, an application filed under subsection (1) of this
section shall:
(a) Describe the nature and purposes of the proposed water
development project, including the need for the project and
reason why the project would be in the public interest.
(b) State whether any purposes other than improvement of a
drinking water system, irrigation, drainage, fish protection,
watershed enhancement or municipal use, but consistent therewith,
will be served by the proposed water development project, and the
nature of the other purposes, if any.
(c) Set forth or be accompanied by a feasibility study for the
construction, operation and maintenance of the proposed water
development project, an estimate of the costs of construction and
if the project includes as a primary purpose irrigation or
drainage, an evaluation of the agricultural potential of the land
from any competent public agency.
(d) State whether any moneys other than those in the Water
Development Fund are proposed to be used for the construction of
the proposed water development project, and whether any other
moneys are available or have been sought for the construction.
(e) Show that the applicant holds or can acquire all lands,
other than public lands, and interests therein and water rights
necessary for the construction, operation and maintenance of the
proposed water development project.
(3) If the application is for a safe drinking water project,
the applicant also shall demonstrate that:
(a) The applicant is a city, county, district, water authority
or other political subdivision of the state or an organization
operated on a not-for-profit basis that makes drinking water
available to members of the general public;
(b) The primary use of the loan will be to improve a drinking
water system for the purpose of complying with applicable state
or federal drinking water quality regulations; and
(c) The applicant has:
(A) Developed a water system master plan; and
(B) Either has a coordination agreement in place as defined in
ORS 195.020, 195.025 and 197.712 or can demonstrate that options
to find a coordinated solution to the system's drinking water
problems have been fully explored.
SECTION 1592. ORS 541.705, as amended by section 35, chapter
907, Oregon Laws 2009, is amended to read:
541.705. (1) Any water developer may file with the { - Water
Resources Commission - } { + Oregon Natural Resources
Commission + } an application to enable the construction of a
water development project as provided in ORS 541.700 to 541.855.
The application shall be filed in the manner, be in the form and
contain or be accompanied by any information prescribed by the
commission. The commission, in considering applications, shall
encourage the largest number of users of the Water Development
Fund and shall consider the impact on the family farm units of
the state.
(2) In addition to other requirements prescribed by the
commission, an application filed under subsection (1) of this
section shall:
(a) Describe the nature and purposes of the proposed water
development project, including the need for the project and
reason why the project would be in the public interest.
(b) State whether any purposes other than improvement of a
drinking water system, irrigation, drainage, fish protection,
watershed enhancement or municipal use, but consistent therewith,
will be served by the proposed water development project, and the
nature of the other purposes, if any.
(c) Set forth or be accompanied by a feasibility study for the
construction, operation and maintenance of the proposed water
development project, an estimate of the costs of construction and
if the project includes as a primary purpose irrigation or
drainage, an evaluation of the agricultural potential of the land
from any competent public agency.
(d) State whether any moneys other than those in the Water
Development Fund are proposed to be used for the construction of
the proposed water development project, and whether any other
moneys are available or have been sought for the construction.
(e) Show that the applicant holds or can acquire all lands,
other than public lands, and interests therein and water rights
necessary for the construction, operation and maintenance of the
proposed water development project.
(3) If the application is for a safe drinking water project,
the applicant also shall demonstrate that:
(a) The applicant is a city, county, district, water authority
or other political subdivision of the state or an organization
operated on a not-for-profit basis that makes drinking water
available to members of the general public;
(b) The primary use of the loan will be to improve a drinking
water system for the purpose of complying with applicable state
or federal drinking water quality regulations; and
(c) The applicant has:
(A) Developed a water system master plan; and
(B) Either has a coordination agreement in place as defined in
ORS 195.020, 195.025 and 197.712 or can demonstrate that options
to find a coordinated solution to the system's drinking water
problems have been fully explored.
SECTION 1593. ORS 541.710 is amended to read:
541.710. (1) Upon receipt of an application filed as provided
in ORS 541.705, the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } shall determine
whether the feasibility study described in ORS 541.705 for the
water development project set forth in or accompanying the
application is satisfactory and if the commission determines that
it is not satisfactory, the commission may:
(a) Reject the application;
(b) Require the applicant to submit additional information and
revision of the feasibility study as may be necessary; or
(c) Make such revisions of the feasibility study as the
commission considers necessary to make the plan satisfactory.
(2) Except as provided in subsection (3) of this section, for a
loan application filed under ORS 541.705 or section 20, chapter
907, Oregon Laws 2009, the commission shall charge and collect
from the applicant at the time the application is filed an
application fee equal to the lesser of 0.10 percent of the loan
applied for or $2,500. In addition, the commission may require
the applicant to pay for costs that exceed the application fee if
the
{ - Water Resources Director - } { + Director of the Oregon
Department of Natural Resources + } determines that the costs are
incurred solely in connection with processing the application.
Before incurring the additional costs, the commission shall
advise the applicant of the additional costs to be paid by the
applicant. Moneys referred to in this subsection shall be paid
into the Water Development Administration and Bond Sinking Fund.
(3) The commission may establish a reduced application fee by
rule for a water development project that is for fish protection
or for watershed enhancement.
SECTION 1594. ORS 541.710, as amended by section 36, chapter
907, Oregon Laws 2009, is amended to read:
541.710. (1) Upon receipt of an application filed as provided
in ORS 541.705, the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } shall determine
whether the feasibility study described in ORS 541.705 for the
water development project set forth in or accompanying the
application is satisfactory and if the commission determines that
it is not satisfactory, the commission may:
(a) Reject the application;
(b) Require the applicant to submit additional information and
revision of the feasibility study as may be necessary; or
(c) Make such revisions of the feasibility study as the
commission considers necessary to make the plan satisfactory.
(2) Except as provided in subsection (3) of this section, the
commission shall charge and collect from the applicant at the
time the application is filed an application fee equal to the
lesser of 0.10 percent of the loan applied for or $2,500. In
addition, the commission may require the applicant to pay for
costs that exceed the application fee if the { - Water
Resources Director - } { + Director of the Oregon Department of
Natural Resources + } determines that the costs are incurred
solely in connection with processing the application. Before
incurring the additional costs, the commission shall advise the
applicant of the additional costs to be paid by the applicant.
Moneys referred to in this subsection shall be paid into the
Water Development Administration and Bond Sinking Fund.
(3) The commission may establish a reduced application fee by
rule for a water development project that is for fish protection
or for watershed enhancement.
SECTION 1595. ORS 541.720 is amended to read:
541.720. (1) The { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } may approve the
financing for the construction of a water development project
described in an application filed under ORS 541.705, or subject
to section 25, chapter 907, Oregon Laws 2009, in an application
filed under section 20, chapter 907, Oregon Laws 2009, using
moneys in the Water Development Fund secured by a first lien or
by other good and sufficient collateral in the manner provided in
ORS 541.740 if, after investigation, the commission finds that:
(a) The proposed water development project is feasible and a
reasonable risk from practical and economic standpoints;
(b) The plan for the construction, operation and maintenance of
the proposed water development project is satisfactory and, if
the primary purposes of the project include irrigation or
drainage, the agricultural potential is confirmed;
(c) The plan for construction and operation will provide
multipurpose facilities, to the extent practicable;
(d) The applicant is a qualified, credit-worthy and responsible
water developer that meets the standards established by
commission rule and is willing and able to enter into a contract
with the commission for construction and repayment as provided in
ORS 541.730;
(e) Moneys in the Water Development Fund are or will be
available for the construction of the proposed water development
project;
(f) There is a need for the proposed water development project,
the proposed project is in the public interest and the
applicant's financial resources are adequate to provide the
working capital needed to operate and maintain the project; and
(g) The construction cost associated with any secondary use
does not exceed the construction cost of the primary use of the
water development project.
(2) ORS 541.700 to 541.855 do not limit the authority granted
the Environmental Quality Commission or the Department of
Environmental Quality under ORS chapter 468B.
SECTION 1596. ORS 541.720, as amended by section 37, chapter
907, Oregon Laws 2009, is amended to read:
541.720. (1) The { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } may approve the
financing for the construction of a water development project
described in an application filed under ORS 541.705, using moneys
in the Water Development Fund secured by a first lien or by other
good and sufficient collateral in the manner provided in ORS
541.740 if, after investigation, the commission finds that:
(a) The proposed water development project is feasible and a
reasonable risk from practical and economic standpoints;
(b) The plan for the construction, operation and maintenance of
the proposed water development project is satisfactory and, if
the primary purposes of the project include irrigation or
drainage, the agricultural potential is confirmed;
(c) The plan for construction and operation will provide
multipurpose facilities, to the extent practicable;
(d) The applicant is a qualified, credit-worthy and responsible
water developer that meets the standards established by
commission rule and is willing and able to enter into a contract
with the commission for construction and repayment as provided in
ORS 541.730;
(e) Moneys in the Water Development Fund are or will be
available for the construction of the proposed water development
project;
(f) There is a need for the proposed water development project,
the proposed project is in the public interest and the
applicant's financial resources are adequate to provide the
working capital needed to operate and maintain the project; and
(g) The construction cost associated with any secondary use
does not exceed the construction cost of the primary use of the
water development project.
(2) ORS 541.700 to 541.855 do not limit the authority granted
the Environmental Quality Commission or the Department of
Environmental Quality under ORS chapter 468B.
SECTION 1597. ORS 541.725 is amended to read:
541.725. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } shall adopt rules establishing
standards for borrowers obtaining loans issued from the Water
Development Fund. The commission shall design the standards to
ensure that all loans have a high probability of repayment and
that all loans are adequately secured in the event of a default.
The commission shall solicit comments from the Oregon Department
of Administrative Services and the State Treasurer when designing
the standards. The standards may include, but need not be limited
to, standards that give preference to entities with ad valorem
taxing authority.
SECTION 1598. ORS 541.730 is amended to read:
541.730. (1) If the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } approves the
financing for the construction of a water development project,
the commission, on behalf of the state, and the applicant may
enter into a loan contract, secured by a first lien or by other
good and sufficient collateral in the manner provided in ORS
541.740. The loan contract shall set forth, among other matters:
(a) That the commission, on behalf of the state, must approve
the arrangements made by the applicant for the construction,
operation and maintenance of the water development project, using
moneys in the Water Development Fund for the construction.
(b) A plan for the repayment of moneys borrowed from the Water
Development Fund and interest on those moneys as described in
subsection (3) of this section.
(c) Provisions satisfactory to the commission for field
engineering and inspection, the commission to be the final judge
of completion of the contract.
(d) That the liability of the state under the contract is
contingent upon the availability of moneys in the Water
Development Fund for use in the construction, operation and
maintenance of the water development project.
(e) Such further provisions as the commission considers
necessary to ensure expenditure of the funds for the purposes set
forth in the approved application.
(f) That the commission may institute an appropriate action or
suit to prevent use of the facilities of a water development
project financed by the Water Development Fund by any person who
is delinquent in the repayment of any moneys due the Water
Development Administration and Bond Sinking Fund.
(g) That a loan for a water development project is assignable
or transferable to a third party only with the prior approval of
the commission.
(2) The commission may approve a loan assignment or transfer
only if the commission finds that the assignee or transferee
qualifies as a water developer as defined in ORS 541.700
{ - (7) - } { + (5) + } and the assignment or transfer does
not have serious adverse effect upon the family farm unit
structure in this state.
(3) The commission, in consultation with the State Treasurer,
shall set the interest rate in an amount the commission
determines to be sufficient to cover, to the extent practicable:
(a) The interest rate to be paid to bondholders on the
underlying bonds;
(b) The administrative expenses incurred by the commission, the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + } and the State Treasurer in connection with
the loan program;
(c) All bond-related costs;
(d) The establishment of Water Development Administration and
Bond Sinking Fund reserves; and
(e) An amount to be deposited to the Water Development Fund for
the purpose of increasing the amount available for loans from
that fund.
(4) In addition to any other fee or charge, the commission may
charge a loan processing fee, not to exceed one percent of the
loan amount.
(5) The repayment plan:
(a) Shall provide for commencement of repayment by the water
developer of moneys used for project construction and interest on
those moneys not later than two years after the date of the loan
contract or at such other time as the commission may provide.
(b) May provide for reasonable extension of the time for making
any repayment in emergency or hardship circumstances, if approved
by the commission.
(c) Shall provide for such evidence of debt assurance of and
security for repayment by the applicant as are considered
necessary or proper by the commission.
(d) Shall set forth a schedule of payments and the period of
loan. The period of the loan may not exceed the usable life of
the constructed project, or 30 years from the date of the first
payment due under the financial plan, whichever is less.
(e) Shall set forth the manner of determining when loan
payments are delinquent.
(f) Shall include repayment of interest that accrues during any
period of delay in repayment authorized by paragraph (a) of this
subsection, and may require payments of varying amounts for
collection of that accrued interest.
(g) May include provisions in addition to the provisions
described in paragraphs (a) to (f) of this subsection.
SECTION 1599. ORS 541.735 is amended to read:
541.735. If the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } approves a loan for
a water development project or federal water development project,
the State Treasurer shall pay moneys for such project from the
Water Development Fund in accordance with the terms of the loan
contract, as prescribed by the commission.
SECTION 1600. ORS 541.740 is amended to read:
541.740. (1)(a) Except as provided in paragraph (b) of this
subsection, when a loan is made to a water developer other than a
water developer described in ORS 541.700 { - (7)(a), (b), (c)
or (d) - } { + (5)(a), (b), (c) or (d) + } for the construction
of a water development project under ORS 541.700 to 541.855, the
State of Oregon has a lien for the amount of the unpaid balance
of the loan. The lien created by this subsection attaches to the
real property held in fee simple of the water developer or to the
user charges, including interest, owed to or received by the
water developer. The lien created by this subsection does not
attach to a leasehold. At the discretion of the { - Water
Resources Commission - } { + Oregon Natural Resources
Commission + }, the lien may attach to all real property, whether
owned by the water developer or other persons, which is served by
the water development project or which is served by a water
source enhanced or restored by the water development project.
(b) Except for tax liens, the lien created by this section is
prior and superior to all other liens or encumbrances upon the
affected real property or user charges, without regard to the
date on which the other liens or encumbrances attached to the
real property or user charges. The commission, in consultation
with the State Treasurer, may accept other good and sufficient
collateral to secure a loan instead of, or in addition to, a
lien.
(c) The existence or foreclosure of the lien created by this
subsection shall not cause the acceleration of payment of user
charges or other payments on affected real property. Such
payments shall continue to be made as they become due.
(2) Except as provided in this subsection, when a loan is made
under ORS 541.700 to 541.855 to a water developer described in
ORS 541.700 { - (7)(a), (b), (c) or (d) - } { + (5)(a), (b),
(c) or (d) + }, the loan shall be secured by a mortgage or
security agreement in the full amount of the loan. The mortgage
or security agreement shall be a first lien upon such real
property of the water developer as the commission shall require
for adequate security. The commission, in consultation with the
State Treasurer, may accept other good and sufficient collateral
to secure a loan instead of, or in addition to, a lien.
(3) When a lien created by subsection (1) of this section is
foreclosed, a person whose real property is subject to the lien
solely because that real property is irrigated or drained by
reason of a water development project or because the real
property is served by a water source improved by a water
development project for watershed enhancement, shall only have
that portion of real property subjected to foreclosure that
represents that person's pro rata share of the indebtedness.
(4) When a loan is made to a water developer under ORS 541.700
to 541.855, the commission shall file notice of the loan with the
recording officer of each county in which is situated real
property of the water developer or real property to which the
lien created by subsection (1) or (2) of this section may attach.
The notice shall contain a description of the real property of
the water developer, a description of any other real property
that will be served by the water development project and to which
the lien is to attach, the amount of the loan and a statement
that the State of Oregon has a lien against such real property as
provided in subsection (1) or (2) of this section.
(5) Upon payment of all amounts loaned to a water developer
pursuant to ORS 541.700 to 541.855, the commission shall file
with each recording officer referred to in subsection (4) of this
section a satisfaction notice that indicates repayment of the
loan.
(6) The commission may cause to be instituted appropriate
proceedings to foreclose liens for delinquent loan payments, and
shall pay the proceeds of any such foreclosure, less expenses
incurred in foreclosing, into the Water Development
Administration and Bond Sinking Fund. In a foreclosure
proceeding, the commission may bid on property offered for sale
in the proceeding and may acquire title to the property on behalf
of the state.
(7) The commission may take any action, make any disbursement,
hold any funds or institute any action or proceeding necessary to
protect the state's interest.
(8) Notwithstanding ORS 293.240, the commission may compromise,
release, discharge, waive, cancel or settle a claim against a
water developer if such action:
(a) Is consistent with the purposes of ORS 541.700 to 541.855;
(b) Does not impair the ability to pay the administrative
expenses of the commission or the obligations of any bonds
outstanding; and
(c) Is, under the circumstances, the means most likely to
preserve the claim or to recover the greatest part of the amount
claimed.
(9) The commission, by rule, may set out procedures to be used
when a water developer is unable to make required loan payments
because of illness, injury, death, involuntary job loss or
economic stress due to factors beyond individual control. The
rules shall be effective to the extent permitted by the terms of
the contracts associated with affected loans. The rules:
(a) May provide for a temporary reduction of loan payment;
(b) May provide for any other solution jointly agreed to by the
water developer and the commission;
(c) Shall provide for repayment of the amount of any loan
payments reduced under the rules in accordance with terms and
conditions agreed upon by the borrower and the commission; and
(d) Shall require the commission to consider the effect of any
payment reduction or delay on the solvency of the program as a
whole, on estimates of the most probable financial position of
the program in the future and on other borrowers in the program.
(10)(a) Upon application by a water developer, the commission
may grant a partial release of security when the commission
determines that granting the requested release will not
jeopardize the water development loan program's security
position.
(b) The remaining property must qualify as security for the
loan balance under the applicable law.
(c) Notwithstanding compliance with paragraph (b) of this
subsection, the commission may require that the loan balance be
reduced as consideration for granting the requested release.
SECTION 1601. ORS 541.741 is amended to read:
541.741. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } shall not attempt to recover
interest amounts credited or paid before January 1, 1986, to any
water developer who borrowed moneys under ORS 541.700 to 541.855
and shall adjust the borrower's account balance as necessary to
reflect those credits as lawful payments on the borrower's
contractual obligations to the state.
SECTION 1602. ORS 541.745 is amended to read:
541.745. If a water developer fails to comply with a contract
entered into with the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } for construction and
repayment as provided in ORS 541.730, the commission, in addition
to remedies provided in ORS 541.740, may seek other appropriate
legal remedies to secure the loan and may contract with any other
water developer as provided in ORS 541.730 for continuance of
construction and for repayment of moneys from the Water
Development Fund used to continue construction and interest on
the moneys.
SECTION 1603. ORS 541.750 is amended to read:
541.750. Any water developer that enters into a contract with
the { - Water Resources Commission - } { + Oregon Natural
Resources Commission + } for construction and repayment as
provided in ORS 541.730 or 541.745 may obtain moneys for
repayment to the Water Development Administration and Bond
Sinking Fund under the contract in the same manner as other
moneys are obtained for other authorized purposes. The commission
may also provide by contract or otherwise, for the construction,
operation and maintenance of a water development project until
the project is assumed by such new water developer. Moneys in the
Water Development Fund may be used for such construction,
operation and maintenance, and if so used, shall be repaid to the
Water Development Administration and Bond Sinking Fund by the
contracting water developer.
SECTION 1604. ORS 541.765 is amended to read:
541.765. In addition to those uses of moneys in the Water
Development Fund otherwise provided in ORS 541.700 to 541.855 or
section 25, chapter 907, Oregon Laws 2009, the { - Water
Resources Commission - } { + Oregon Natural Resources
Commission + } may authorize loans of such moneys to those
persons to whom approval has been granted by the federal
government or any agency or instrumentality of the United States
for the funding and construction of federal water development
projects. Any such person shall apply for a loan to the
commission, in such form as the commission prescribes, and shall
furnish such proof of federal approval for funding and
construction as the commission considers appropriate.
SECTION 1605. ORS 541.765, as amended by section 38, chapter
907, Oregon Laws 2009, is amended to read:
541.765. In addition to those uses of moneys in the Water
Development Fund otherwise provided in ORS 541.700 to 541.855,
the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + } may authorize loans of such moneys to
those persons to whom approval has been granted by the federal
government or any agency or instrumentality of the United States
for the funding and construction of federal water development
projects. Any such person shall apply for a loan to the
commission, in such form as the commission prescribes, and shall
furnish such proof of federal approval for funding and
construction as the commission considers appropriate.
SECTION 1606. ORS 541.770 is amended to read:
541.770. If the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } approves an
application for the loan of moneys authorized by ORS 541.765, the
commission shall enter into a loan contract with the borrower
that provides, among other matters:
(1) That the loan be secured by a first lien or by other good
and sufficient collateral in the same manner as provided in ORS
541.740.
(2) That the loan bear interest at the same rate of interest as
provided in ORS 541.730.
(3) That the loan becomes due and payable to the Water
Development Administration and Bond Sinking Fund not later than
60 days after the date that federal funds for the acquisition of
easements and rights of way for the project are paid to the
borrower or 30 years from the date of the loan, whichever is
earlier.
(4) Such provisions as the commission considers necessary to
ensure expenditure of the moneys loaned for the purposes provided
in ORS 541.765.
(5) That the commission may cause to be instituted appropriate
proceedings to foreclose liens for delinquent loan payments, and
shall pay the proceeds of any such foreclosure, less expenses in
foreclosing, into the Water Development Administration and Bond
Sinking Fund.
SECTION 1607. ORS 541.780 is amended to read:
541.780. In order to provide funds for the purposes specified
in Article XI-I (1) of the Oregon Constitution, the { - Water
Resources Commission - } { + Oregon Natural Resources
Commission + } may request the State Treasurer to issue bonds in
accordance with the provisions of ORS chapter 286A.
SECTION 1608. ORS 541.830 is amended to read:
541.830. (1) There hereby is created the Water Development
Administration and Bond Sinking Fund, separate and distinct from
the General Fund, to provide for payment of:
(a) Administrative expenses of the { - Water Resources
Commission and the Water Resources Department - } { + Oregon
Department of Natural Resources and the Oregon Natural Resources
Commission + } in processing applications, investigating proposed
water development projects and federal water development projects
under ORS 541.700 to 541.855 and servicing and collecting
outstanding loans made under ORS 541.700 to 541.855 or section
25, chapter 907, Oregon Laws 2009, if the expense is not paid
directly by the applicant, including principal and interest due
on bonds outstanding. These administrative expenses also may
include all costs associated with the issuance of bonds and the
funding of any credit enhancements or reserves determined to be
necessary or advantageous in connection with the bonds.
(b) Administrative expenses of the State Treasurer in carrying
out the duties, functions and powers imposed upon the State
Treasurer by ORS 541.700 to 541.855.
(c) Principal and interest of all bonds issued pursuant to the
provisions of ORS 541.780 to 541.815.
(2) The fund created by subsection (1) of this section shall
consist of:
(a) Application fees and additional processing costs paid under
ORS 541.710 and loan processing fees under ORS 541.730.
(b) Repayments of moneys loaned to water developers from the
Water Development Fund, including interest on such moneys.
(c) Repayments of moneys loaned for the acquisition of
easements and rights of way for federal water development
projects, including interest on such moneys.
(d) Such moneys as may be appropriated to the fund by the
Legislative Assembly, including appropriations dedicated to the
partial payment for or repayment of projects affording public
benefits.
(e) Moneys obtained from the sale of refunding bonds and any
accrued interest on such bonds.
(f) Moneys received from ad valorem taxes levied pursuant to
Article XI-I(1), Oregon Constitution, and all moneys that the
Legislative Assembly may provide in lieu of such taxes.
(g) Interest earned on cash balances invested by the State
Treasurer.
(h) Any revenues received by the commission under the
provisions of ORS 541.745.
(i) Moneys transferred from the Water Development Fund.
(3) The moneys referred to in subsection (2) of this section
are continuously appropriated to the commission for the purposes
provided in subsection (1) of this section.
(4) The commission, with the approval of the Governor, may
identify those projects financed under the provisions of ORS
541.700 to 541.855 or section 25, chapter 907, Oregon Laws 2009,
that offer significant public benefit, and recommend to the
Legislative Assembly funding of those projects in proportion to
the public benefits offered.
(5) The commission, with the approval of the State Treasurer,
may transfer moneys from the fund created under subsection (1) of
this section to the Water Development Fund if:
(a) A cash flow projection shows that the transfer will not
have any negative impact on the commission's ability to pay bond
principal, interest and administration costs;
(b) The transfer will not create the need for issuance of any
bonds; and
(c) The transfer, together with loans outstanding from prior
transfers and not refinanced by funds derived directly from a
bond sale, does not exceed $1.
(6) The transfer amount authorized by subsection (5) of this
section may be increased by the Emergency Board.
SECTION 1609. ORS 541.830, as amended by section 40, chapter
907, Oregon Laws 2009, is amended to read:
541.830. (1) There hereby is created the Water Development
Administration and Bond Sinking Fund, separate and distinct from
the General Fund, to provide for payment of:
(a) Administrative expenses of the { - Water Resources
Commission and the Water Resources Department - } { + Oregon
Department of Natural Resources and the Oregon Natural Resources
Commission + } in processing applications, investigating proposed
water development projects and federal water development projects
under ORS 541.700 to 541.855 and servicing and collecting
outstanding loans made under ORS 541.700 to 541.855, if the
expense is not paid directly by the applicant, including
principal and interest due on bonds outstanding. These
administrative expenses also may include all costs associated
with the issuance of bonds and the funding of any credit
enhancements or reserves determined to be necessary or
advantageous in connection with the bonds.
(b) Administrative expenses of the State Treasurer in carrying
out the duties, functions and powers imposed upon the State
Treasurer by ORS 541.700 to 541.855.
(c) Principal and interest of all bonds issued pursuant to the
provisions of ORS 541.780 to 541.815.
(2) The fund created by subsection (1) of this section shall
consist of:
(a) Application fees and additional processing costs paid under
ORS 541.710 and loan processing fees under ORS 541.730.
(b) Repayments of moneys loaned to water developers from the
Water Development Fund, including interest on such moneys.
(c) Repayments of moneys loaned for the acquisition of
easements and rights of way for federal water development
projects, including interest on such moneys.
(d) Such moneys as may be appropriated to the fund by the
Legislative Assembly, including appropriations dedicated to the
partial payment for or repayment of projects affording public
benefits.
(e) Moneys obtained from the sale of refunding bonds and any
accrued interest on such bonds.
(f) Moneys received from ad valorem taxes levied pursuant to
Article XI-I(1), Oregon Constitution, and all moneys that the
Legislative Assembly may provide in lieu of such taxes.
(g) Interest earned on cash balances invested by the State
Treasurer.
(h) Any revenues received by the commission under the
provisions of ORS 541.745.
(i) Moneys transferred from the Water Development Fund.
(3) The moneys referred to in subsection (2) of this section
are continuously appropriated to the commission for the purposes
provided in subsection (1) of this section.
(4) The commission, with the approval of the Governor, may
identify those projects financed under the provisions of ORS
541.700 to 541.855 that offer significant public benefit, and
recommend to the Legislative Assembly funding of those projects
in proportion to the public benefits offered.
(5) The commission, with the approval of the State Treasurer,
may transfer moneys from the fund created under subsection (1) of
this section to the Water Development Fund if:
(a) A cash flow projection shows that the transfer will not
have any negative impact on the commission's ability to pay bond
principal, interest and administration costs;
(b) The transfer will not create the need for issuance of any
bonds; and
(c) The transfer, together with loans outstanding from prior
transfers and not refinanced by funds derived directly from a
bond sale, does not exceed $1.
(6) The transfer amount authorized by subsection (5) of this
section may be increased by the Emergency Board.
SECTION 1610. ORS 541.835 is amended to read:
541.835. All moneys in the Water Development Fund created by
Article XI-I (1), Oregon Constitution, hereby are
{ - appropriated continuously to the Water Resources
Commission - } { + continuously appropriated to the Oregon
Natural Resources Commission + } and shall be used for the
purposes provided in ORS 541.700 to 541.855. Moneys expended
from the fund may include those expended or to be expended for
engineering, legal fees and acquisition of water rights and
property required for rights of way or facility locations.
Interest earned by the fund shall be credited to the fund.
SECTION 1611. ORS 541.840 is amended to read:
541.840. (1) If there are insufficient funds in the Water
Development Administration and Bond Sinking Fund to make the
payments referred to in ORS 541.830 (1), the { - Water
Resources Commission - } { + Oregon Natural Resources
Commission + } may request the funds necessary for such payments
from the Legislative Assembly within the budget authorized by the
Legislative Assembly or as that budget may be modified by the
Emergency Board.
(2) When the commission determines that moneys in sufficient
amount are available in the Water Development Administration and
Bond Sinking Fund, the commission shall reimburse the General
Fund without interest, in an amount equal to the amount allocated
by the Legislative Assembly or the Emergency Board pursuant to
subsection (1) of this section. The moneys used to reimburse the
General Fund under this subsection shall not be considered a
budget item on which a limitation is otherwise fixed by law, but
shall be in addition to any specific appropriations or amounts
authorized to be expended from continually appropriated moneys.
SECTION 1612. ORS 541.845 is amended to read:
541.845. (1) In accordance with the applicable provisions of
ORS chapter 183, the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } may adopt rules
necessary to carry out ORS 541.700 to 541.855.
(2) In adopting rules establishing guidelines or criteria for
awarding loans or grants for drinking water projects, the
commission shall { - coordinate the Water Resources
Department's rulemaking process with - } { + consult with + }
the Oregon Business Development Department and the Oregon Health
Authority in order to ensure that rules adopted under this
subsection are consistent with rules adopted under ORS 285B.563
and 431.120. The rules adopted under this subsection shall:
(a) Require the installation of meters on all new active
service connections from any municipal drinking water
distribution lines funded under ORS 285B.560 to 285B.599,
431.120, 541.700, 541.705, 541.765, 541.830 and 541.845; and
(b) Require a plan, to be adopted by the municipality, for
installation of meters on all service connections throughout the
drinking water system.
(3) As used in this section, 'service connection' does not
include fire hydrants, fire sprinkler system connections, line
blow-offs and drains, standby emergency interties, valve
controlled drinking fountains and other similar intermittently
used connections.
SECTION 1613. ORS 541.850 is amended to read:
541.850. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } may accept gifts of money or
other property from any source, given for the purposes of ORS
541.700 and 541.705 to 541.770 or section 25, chapter 907, Oregon
Laws 2009. Money so received shall be paid into the Water
Development Fund. Money or other property so received shall be
used for the purposes for which received.
SECTION 1614. ORS 541.850, as amended by section 41, chapter
907, Oregon Laws 2009, is amended to read:
541.850. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } may accept gifts of money or
other property from any source, given for the purposes of ORS
541.700 and 541.705 to 541.770. Money so received shall be paid
into the Water Development Fund. Money or other property so
received shall be used for the purposes for which received.
SECTION 1615. ORS 541.855 is amended to read:
541.855. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } shall make available to the
Legislative Assembly and the Governor a biennial report of the
transactions of the Water Development Fund and the Water
Development Administration and Bond Sinking Fund in such detail
as will accurately indicate the transactions and the condition of
the funds.
SECTION 1616. ORS 541.875 is amended to read:
541.875. (1) No person shall construct, operate or maintain,
and no officer or agency of this state shall issue any permit for
the construction, operation or maintenance of, any dam or
hydroelectric facility on:
(a) That portion of the North Umpqua River between Soda Springs
Dam and the confluence of the North Umpqua River and South Umpqua
River; or
(b) The main stem Umpqua River from the confluence of the North
Umpqua River and the South Umpqua River to the ocean.
(2) Nothing in this section applies to the repair, structural
repair, maintenance or improvement of any dam constructed on the
North Umpqua River prior to November 1, 1981, with the approval
of the { - Water Resources Commission and the State Department
of Fish and Wildlife - } { + Oregon Natural Resources
Commission or the Oregon Department of Natural Resources + }. The
commission and the { - State Department of Fish and
Wildlife - } { + department + } shall not unreasonably withhold
or delay such approval, but may withhold approval for reasonable
cause, including but not limited to a substantiated finding that
the repairs, structural repairs, maintenance or improvements:
(a) Fail to comply with applicable safety rules or regulations;
(b) Raise the height of the dam; or
(c) Diminish the current ability of anadromous fish to travel
past the dam.
(3) No person shall appropriate and no officer or agency of
this state shall issue or approve any license, permit or
certificate for the use of water for hydroelectric generation at
a dam at the location referred to in subsection (1) of this
section.
SECTION 1617. ORS 542.010 is amended to read:
542.010. In order that the natural resources of Oregon in land,
water and power may be utilized to the highest advantage of the
people, complete cooperation between the state and federal
authorities in controlling, investigating and developing these
resources in the interest of the people of the state is
essential. Therefore, the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } may, on behalf of
this state, enter into a contract or agreement with any federal
department or bureau having jurisdiction in such matters for the
execution of such surveys and investigations and the preparation
of such plans, specifications and estimates or other data by
cooperation between the state and the federal department or
bureau as will, in the judgment of the
{ - Water Resources - } commission, approved by the Governor,
be best suited to accomplish the purposes of ORS 542.010 to
542.050. However, in no case shall the proportion of expense to
be borne by this state exceed the proportion to be borne by the
other party to the contract or agreement.
SECTION 1618. ORS 542.030 is amended to read:
542.030. As soon as practicable after the completion of the
surveys and investigations, the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + }
shall prepare or have prepared a report setting forth the plans,
specifications and estimated cost of construction, maintenance
and operation of the projects, together with any other
information tending to show their feasibility, and may in the
discretion of the commission have the report printed in pamphlet
form and distributed to those interested. Copies of completed
maps, plans, specifications, estimates and reports secured or
prepared in connection with any such investigation shall be kept
on file in the { - Water Resources Department - } { + Oregon
Department of Natural Resources + } at all times, and open for
public inspection during business hours.
SECTION 1619. ORS 542.040 is amended to read:
542.040. (1) The { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + }, on behalf of the
state, shall withdraw and withhold from appropriation any
unappropriated water which may be required for any project under
investigation or to be investigated under the provisions of ORS
542.010 to 542.050. If the project is found to be feasible, the
commission shall withhold the same from appropriation until the
money expended in the investigation of the project is repaid to
the cooperating parties in proportion to the amount contributed
by each unless funds for construction are provided by one or both
of the cooperating parties, in which case the commission shall
issue a permit without requiring such repayment. No permit to
appropriate water which may be in conflict with any such project
under investigation shall be approved by the commission, nor
shall any assignment of plans and information or any part thereof
be made except upon consideration and order by the commission
after full hearing of all interested parties.
(2) Any moneys returned to the commission under the provisions
of this section shall promptly be turned over to the State
Treasurer and credited to the General Fund in the State Treasury.
SECTION 1620. ORS 542.050 is amended to read:
542.050. As the purposes of ORS 542.010 to 542.050 are to
secure the most immediate, as well as the most beneficial,
ultimate use of the available waters for any certain project, the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + }, as occasion may require, may grant
permits and arrange the details so that minor portions of the
project may be segregated and constructed at any time. However,
the segregation and development of such minor parts shall not
interfere to any serious extent with the handling or completion
of the balance of the project.
SECTION 1621. ORS 542.060 is amended to read:
542.060. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } shall establish gauging stations
at suitable points on the various streams of the state to
determine the daily and seasonal fluctuations in the flow of the
water; shall make surveys and profiles to determine the fall of
stream suitable for power development; and shall prepare
topographic maps of the territory adjacent to the private streams
of the state, so that the availability of water for power,
irrigation or other beneficial uses may be determined and made
known to the public. All such maps and information shall be made
a matter of record in the { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } and the
commission shall publish a summary of all such information in the
most practical and economical manner for presentation to the
public. The commission shall enter into such agreements and
contracts as will insure that the surveys and investigations are
carried on in the most economical manner, and that the maps and
data are made available to the use of the public as quickly as
possible.
SECTION 1622. ORS 542.075 is amended to read:
542.075. (1) The { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + }, with the approval
of the Governor, may identify proposed or existing water projects
which offer significant public benefit, and recommend to the
Legislative Assembly funding of those projects in proportion to
the public benefits offered by an existing project, or expected
to be obtained from a proposed project.
(2) In order to be eligible for funding under subsection (1) of
this section, the { - Water Resources - } commission must
identify an existing project within five years after the project
first becomes operable.
SECTION 1623. ORS 542.080 is amended to read:
542.080. On behalf of this state, the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + } may
cooperate with the Federal Energy Regulatory Commission, the
United States Geological Survey, the United States Reclamation
Service, or any other federal agency or commission engaged in
similar work, and may enter into contracts or agreements whenever
it appears desirable or advantageous to the state.
SECTION 1624. ORS 542.100 is amended to read:
542.100. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } may accept and expend moneys
from any public or private source, including the federal
government, made available for the purpose of conducting
hydrologic investigations of Oregon water resources and to assist
in carrying out the commission's functions as provided by law.
All moneys received by the commission under this section shall be
kept in separate accounts designated according to the purposes
for which such moneys were received. The commission shall keep a
true and full account of receipts and disbursements under this
section.
SECTION 1625. ORS 542.110 is amended to read:
542.110. (1) It hereby is declared that public interest,
welfare, convenience and necessity require the construction of a
system of works in accordance with the general comprehensive plan
for flood control, navigation and other purposes in the
Willamette River Basin, as set forth in House Document 544,
Seventy-fifth Congress, third session, and the Act of the
Seventy-fifth Congress approved June 28, 1938, 52 Stat. 1222,
authorizing the construction of certain public works, including
the Willamette River Basin Project.
(2) The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } may act for the state in all
matters necessary or advisable in the promotion, construction and
maintenance of the Willamette River Basin Project.
SECTION 1626. ORS 542.520 is amended to read:
542.520. The provisions of the Oregon-California Goose Lake
Interstate Compact are as follows:
_________________________________________________________________
ARTICLE I
PURPOSES
The major purposes of this compact are:
A. To facilitate and promote the orderly, integrated and
comprehensive development, use, conservation and control of the
water resources of Goose Lake Basin.
B. To further intergovernmental cooperation and comity and to
remove the causes of present and future controversies by (1)
providing for continued development of the water resources of
Goose Lake Basin by the States of California and Oregon, and (2)
prohibiting the export of water from Goose Lake Basin without
consent of the legislatures of California and Oregon.
ARTICLE II
DEFINITION OF TERMS
As used in this compact:
A. 'Goose Lake Basin' shall mean the drainage area of Goose
Lake within the States of California and Oregon and all closed
basins included in the Goose Lake drainage basin as delineated on
the official map of the Goose Lake Basin which is attached to and
made a part of this compact.
B. 'Person' shall mean the States of Oregon and California, any
individual and any other entity, public or private.
C. 'Water,' 'waters' or 'water resources' shall mean any water
appearing on the surface of the ground in streams, lakes, or
otherwise, and any water beneath the land surface or beneath the
bed of any stream, lake, reservoir or other body of surface water
within the boundaries of Goose Lake Basin.
ARTICLE III
DISTRIBUTION AND USE OF WATER
A. There are hereby recognized vested rights to the use of
waters originating in Goose Lake Basin existing as of the
effective date of this compact and established under the laws of
California and Oregon.
B. Except as provided in this Article, this compact shall not
be construed as affecting or interfering with appropriation under
the laws of California and Oregon of unappropriated waters of
Goose Lake Basin for use within the basin.
C. Export of water from Goose Lake Basin for use outside the
basin without prior consent of both state legislatures is
prohibited.
D. Each state hereby grants the right for a person to construct
and operate facilities for the measurement, diversion, storage
and conveyance of water from the Goose Lake Basin in one state
for use within the basin in the other state, providing the right
to such use is secured by appropriation under the general laws
administered by the { - Water Resources Director - }
{ + Director of the Oregon Department of Natural Resources + }
of the State of Oregon or the Water Rights Board of California
and the laws of the state from which the water is to be taken
shall control.
E. Should any facilities be constructed in one state to
implement use of water in the other state, the construction,
operation, repairs and replacement of such facilities shall be
subject to the laws of the state in which the facilities are
constructed.
ARTICLE IV
ADMINISTRATION
No commission or administrative body is necessary to administer
this compact.
ARTICLE V
TERMINATION
This compact may be terminated at any time by consent of the
legislatures of California and Oregon and upon such termination
all rights then established hereunder shall continue unimpaired.
ARTICLE VI
GENERAL PROVISIONS
Nothing in this compact shall be construed to limit, or prevent
any state from instituting or maintaining any action or
proceeding, legal or equitable, in any court having jurisdiction
thereof for the protection of any right under this compact or the
enforcement of any of its provisions.
ARTICLE VII
RATIFICATION
A. This compact shall become operative when ratified by the
legislatures of California and Oregon and consented to by the
Congress of the United States.
B. This compact shall remain in full force and effect until
amended in the same manner as is required for it to be ratified
to become operative or until terminated.
C. A copy of any proposed amendments to or termination of this
compact shall be filed with the Board of Supervisors of Modoc
County, California, and the County Court of Lake County, Oregon,
at least 30 days prior to any legislative consideration by the
legislatures of the States of California and Oregon.
ARTICLE VIII
FEDERAL RIGHTS
Nothing in this compact shall be deemed:
A. To impair or affect the existing rights or powers of the
United States of America, its agencies, or instrumentalities, in
and to the use of the waters of the Goose Lake Basin nor its
capacity to acquire rights in and to the use of said waters.
B. To subject any property of the United States of America, its
agencies or instrumentalities to taxation by any state or
subdivision thereof, nor to create an obligation on the part of
the United States of America, its agencies or instrumentalities
by reason of the acquisition, construction or operation of any
property or works of whatsoever kind, to make any payments to any
state or political subdivision thereof, state agency,
municipality or entity, whatsoever in reimbursement for the loss
of taxes.
C. To subject any property of the United States of America, its
agencies or instrumentalities, to the laws of any state to any
extent other than the extent to which these laws would apply
without regard to the compact.
_________________________________________________________________
SECTION 1627. ORS 542.620 is amended to read:
542.620. The provisions of the Klamath River Basin Compact are
as follows:
_________________________________________________________________
ARTICLE I
PURPOSES
The major purposes of this compact are, with respect to the
water resources of the Klamath River Basin:
A. To facilitate and promote the orderly, integrated and
comprehensive development, use, conservation and control thereof
for various purposes, including, among others: The use of water
for domestic purposes; the development of lands by irrigation and
other means; the protection and enhancement of fish, wildlife and
recreational resources; the use of water for industrial purposes
and hydroelectric power production; and the use and control of
water for navigation and flood prevention.
B. To further intergovernmental cooperation and comity with
respect to these resources and programs for their use and
development and to remove causes of present and future
controversies by providing (1) for equitable distribution and use
of water among the two states and the Federal Government, (2) for
preferential rights to the use of water after the effective date
of this compact for the anticipated ultimate requirements for
domestic and irrigation purposes in the Upper Klamath River Basin
in Oregon and California, and (3) for prescribed relationships
between beneficial uses of water as a practicable means of
accomplishing such distribution and use.
ARTICLE II
DEFINITION OF TERMS
As used in this compact:
A. 'Klamath River Basin' shall mean the drainage area of the
Klamath River and all its tributaries within the States of
California and Oregon and all closed basins included in the Upper
Klamath River Basin.
B. 'Upper Klamath River Basin' shall mean the drainage area of
the Klamath River and all its tributaries upstream from the
boundary between the States of California and Oregon and the
closed basins of Butte Valley, Red Rock Valley, Lost River
Valley, Swan Lake Valley and Crater Lake, as delineated on the
official map of the Upper Klamath River Basin approved on
September 6, 1956, by the commissions negotiating this compact
and filed with the Secretaries of State of the two states and the
General Services Administration of the United States, which map
is incorporated by reference and made a part hereof.
C. 'Commission' shall mean the Klamath River Compact Commission
as created by Article IX of this compact.
D. 'Klamath Project' of the Bureau of Reclamation of the
Department of the Interior of the United States shall mean that
area as delineated by appropriate legend on the official map
incorporated by reference under subdivision B of this Article.
E. 'Person' shall mean any individual or any other entity,
public or private, including either state, but excluding the
United States.
F. 'Keno' shall mean a point on the Klamath River at the
present needle dam, or any substitute control dam constructed in
section 36, township 39 south, range 7 east, Willamette Base and
Meridian.
G. 'Water' or 'waters' shall mean waters appearing on the
surface of the ground in streams, lakes or otherwise, regardless
of whether such waters at any time were or will become ground
water, but shall not include water extracted from underground
sources until after such water is used and becomes surface return
flow or waste water.
H. 'Domestic use' shall mean the use of water for human
sustenance, sanitation and comfort; for municipal purposes; for
livestock watering; for irrigation of family gardens; and for
other like purposes.
I. 'Industrial use' shall mean the use of water in
manufacturing operations.
J. 'Irrigation use' shall mean the use of water for production
of agricultural crops, including grain grown for feeding
wildfowl.
ARTICLE III
DISTRIBUTION AND USE OF WATER
A. There are hereby recognized vested rights to the use of
waters originating in the Upper Klamath River Basin validly
established and subsisting as of the effective date of this
compact under the laws of the state in which the use or diversion
is made, including rights to the use of waters for domestic and
irrigation uses within the Klamath Project. There are also hereby
recognized rights to the use of all waters reasonably required
for domestic and irrigation uses which may hereafter be made
within the Klamath Project.
B. Subject to the rights described in subdivision A of this
Article and excepting the uses of water set forth in subdivision
E of Article XI, rights to the use of unappropriated waters
originating within the Upper Klamath River Basin for any
beneficial use in the Upper Klamath River Basin, by direct
diversion or by storage for later use, may be acquired by any
person after the effective date of this compact by appropriation
under the laws of the state where the use is to be made, as
modified by the following provisions of this subdivision B and
subdivision C of this Article, and may not be acquired in any
other way:
1. In granting permits to appropriate waters under this
subdivision B, as among conflicting applications to appropriate
when there is insufficient water to satisfy all such
applications, each state shall give preference to applications
for a higher use over applications for a lower use in accordance
with the following order of uses:
(a) Domestic use,
(b) Irrigation use,
(c) Recreational use, including use for fish and wildlife,
(d) Industrial use,
(e) Generation of hydroelectric power,
(f) Such other uses as are recognized under the laws of the
state involved.
These uses are referred to in this compact as uses (a), (b), (c),
(d), (e) and (f), respectively. Except as to the superiority of
rights to the use of water for use (a) or (b) over the rights to
the use of water for use (c), (d), (e) or (f), as governed by
subdivision C of this Article, upon a permit being granted and a
right becoming vested and perfected by use, priority in right to
the use of water shall be governed by priority in time within the
entire Upper Klamath River Basin regardless of state boundaries.
The date of priority of any right to the use of water
appropriated for the purposes above enumerated shall be the date
of the filing of the application therefor, but such priority
shall be dependent on commencement and completion of construction
of the necessary works and application of the water to beneficial
use with due diligence and within the times specified under the
laws of the state where the use is to be made. Each state shall
promptly provide the commission and the appropriate official of
the other state with complete information as to such applications
and as to all actions taken thereon.
2. Conditions on the use of water under this subdivision B in
Oregon shall be:
(a) That there shall be no diversion of waters from the Upper
Klamath River Basin, but this limitation shall not apply to
out-of-basin diversions of waters originating within the drainage
area of Fourmile Lake.
(b) That water diverted from Upper Klamath Lake and the Klamath
River and its tributaries upstream from Keno, Oregon, for use in
Oregon and not consumed therein and appearing as surface return
flow and waste water within the Upper Klamath River Basin shall
be returned to the Klamath River or its tributaries above Keno,
Oregon.
3. Conditions on the use of water under this subdivision B in
California shall be:
(a) That the waters diverted from the Klamath River within the
Upper Klamath River Basin for use in California shall not be
taken outside the Upper Klamath River Basin.
(b) That substantially all of the return flows and waste water
finally resulting from such diversions and use appearing as
surface waters in the Upper Klamath River Basin shall be made to
drain so as to be eventually returned to the Klamath River
upstream from Keno, Oregon.
C. 1. All rights, acquired by appropriation after the effective
date of this compact, to use waters originating within the Upper
Klamath River Basin for use (a) or (b) in the Upper Klamath River
Basin in either state shall be superior to any rights, acquired
after the effective date of this compact, to use such waters (i)
for any purpose outside the Klamath River Basin by diversion in
California or (ii) for use (c), (d), (e) or (f) anywhere in the
Klamath River Basin. Such superior rights shall exist regardless
of their priority in time and may be exercised with respect to
inferior rights without the payment of compensation. But such
superior rights to use water for use (b) in California shall be
limited to the quantity of water necessary to irrigate 100,000
acres of land, and in Oregon shall be limited to the quantity of
water necessary to irrigate 200,000 acres of land.
2. The provisions of paragraph 1 of this subdivision C shall
not prohibit the acquisition and exercise after the effective
date of this compact of rights to store waters originating within
the Upper Klamath River Basin and to make later use of such
stored water for any purpose, as long as the storing of waters
for such later use, while being effected, does not interfere with
the direct diversion or storage of such waters for use (a) or (b)
in the Upper Klamath River Basin.
ARTICLE IV
HYDROELECTRIC POWER
It shall be the objective of each state, in the formulation and
the execution and the granting of authority for the formulation
and execution of plans for the distribution and use of the water
of the Klamath River Basin, to provide for the most efficient use
of available power head and its economic integration with the
distribution of water for other beneficial uses in order to
secure the most economical distribution and use of water and
lowest power rates which may be reasonable for irrigation and
drainage pumping, including pumping from wells.
ARTICLE V
INTERSTATE DIVERSION AND STORAGE RIGHTS; MEASURING DEVICES
A. Each state hereby grants for the benefit of the other and
its designees the right to construct and operate facilities for
the measurement, diversion, storage and conveyance of water from
the Upper Klamath River Basin in one state for use in the other
insofar as the exercise of such right may be necessary to
effectuate and comply with the terms of this compact. The
location of such facilities shall be subject to approval by the
commission.
B. Each state or its designee, exercising within the
jurisdiction of the other a right granted under subdivision A of
this Article, shall make provision for the establishment,
operation and maintenance of permanent gaging stations at such
points on streams or reservoir or conveyance facilities as may be
required by the commission for the purpose of ascertaining and
recording the volume of diversions by the streams or facilities
involved. Said stations shall be equipped with suitable devices
for determining the flow of water at all times. All information
obtained from such stations shall be compiled in accordance with
the standards of the United States Geological Survey, shall be
filed with the commission, and shall be available to the public.
ARTICLE VI
ACQUISITION OF PROPERTY FOR STORAGE AND DIVERSION; IN LIEU TAXES
A. Subject to approval of the commission, either state shall
have the right (1) to acquire such property rights in the other
state as are necessary for the diversion, storage, conveyance,
measurement and use of water in conformity with this compact, by
donation or purchase, or (2) to elect to have the other state
acquire such property rights for it by purchase or through the
exercise of the power of eminent domain. A state making the
latter election shall make a written request therefor and the
other state shall expeditiously acquire said property rights
either by purchase at a price satisfactory to the requesting
state, or, if such purchase cannot be made, then through the
exercise of its power of eminent domain, and shall convey said
property rights to the requesting state or its designee. All
costs of such acquisition shall be paid by the requesting state.
Neither state shall have any greater power to acquire property
rights for the other state through the exercise of the power of
eminent domain than it would have under its laws to acquire the
same property rights for itself.
B. Should any diversion, storage or conveyance facilities be
constructed or acquired in either state for the benefit of the
other state, as herein provided, the construction, repair,
replacement, maintenance and operation of such facilities shall
be subject to the laws of the state in which the facilities are
located, except that the proper officials of that state shall
permit the storage, release and conveyance of any water to which
the other state is entitled under this compact.
C. Either state having property rights other than water rights
in the other state acquired as provided in this Article shall pay
to each political subdivision of the state in which such property
rights are located, each and every year during which such rights
are held, a sum of money equivalent to the average annual amount
of taxes assessed against those rights during the 10 years
preceding the acquisition of such rights in reimbursement for the
loss of taxes to such political subdivisions of the state.
Payments so made to a political subdivision shall be in lieu of
any and all taxes by that subdivision on the property rights for
which the payments are made.
ARTICLE VII
POLLUTION CONTROL
A. The states recognize that the growth of population and the
economy of the Upper Klamath River Basin can result in pollution
of the waters of the Upper Klamath River Basin constituting a
menace to the health and welfare of, and occasioning economic
loss to, people living or having interests in the Klamath River
Basin. The states recognize further that protection of the
beneficial uses of the waters of the Klamath River Basin requires
cooperative action of the two states in pollution abatement and
control.
B. To aid in such pollution abatement and control, the
commission shall have the duty and power:
1. To cooperate with the states or agencies thereof or other
entities and with the United States for the purpose of promoting
effective laws and the adoption of effective regulations for
abatement and control of pollution of the waters of the Klamath
River Basin, and from time to time to recommend to the
governments reasonable minimum standards for the quality of such
waters.
2. To disseminate to the public by any and all appropriate
means information respecting pollution abatement and control in
the waters of the Klamath River Basin and on the harmful and
uneconomic results of such pollution.
C. Each state shall have the primary obligation to take
appropriate action under its own laws to abate and control
interstate pollution, which is defined as the deterioration of
the quality of the waters of the Upper Klamath River Basin within
the boundaries of such state which materially and adversely
affects beneficial uses of waters of the Klamath River Basin in
the other state. Upon complaint to the commission by the state
water pollution control agency of one state that interstate
pollution originating in the other state is not being prevented
or abated, the procedure shall be as follows:
1. The commission shall make an investigation and hold a
conference on the alleged interstate pollution with the water
pollution control agencies of the two states, after which the
commission shall recommend appropriate corrective action.
2. If appropriate corrective action is not taken within a
reasonable time, the commission shall call a hearing, giving
reasonable notice in writing thereof to the water pollution
control agencies of the two states and to the person or persons
which it is believed are causing the alleged interstate
pollution. Such hearing shall be held in accordance with rules
and regulations of the commission, which shall conform as nearly
as practicable with the laws of the two states governing
administrative hearings. At the conclusion of such hearing, the
commission shall make a finding as to whether interstate
pollution exists, and if so, shall issue to any person or persons
which the commission finds are causing such interstate pollution
an order or orders for correction thereof.
3. It shall be the duty of the person against whom any such
order is issued to comply therewith. Any court of general
jurisdiction of the state where such discharge is occurring or
the United States District Court for the district where the
discharge is occurring shall have jurisdiction, on petition of
the commission for enforcement of such order, to compel action by
mandamus, injunction, specific performance, or any other
appropriate remedy, or on petition of the person against whom the
order is issued to review any order. At the conclusion of such
enforcement or review proceedings, the court may enter such
decree or judgment affirming, reversing, modifying, or remanding
such order as in its judgment is proper in the circumstances on
the basis of the rules customarily applicable in proceedings for
court enforcement or review of administrative actions.
D. The water pollution control agencies of the two states
shall, from time to time, make available to the commission all
data relating to the quality of the waters of the Upper Klamath
River Basin which they possess as the result of studies, surveys
and investigations thereof which they may have made.
ARTICLE VIII
MISCELLANEOUS
A. Subject to vested rights as of the effective date of this
compact, there shall be no diversion of waters from the basin of
Jenny Creek to the extent that such waters are required, as
determined by the commission, for use on land within the basin of
Jenny Creek.
B. Each state shall exercise whatever administrative, judicial,
legislative or police powers it has that are required to provide
any necessary reregulation or other control over the flow of the
Klamath River downstream from any hydroelectric power plant for
protection of fish, human life or property from damage caused by
fluctuations resulting from the operation of such plant.
ARTICLE IX
ADMINISTRATION
A. 1. There is hereby created a commission to administer this
compact. The commission shall consist of three members. The
representative of the State of California shall be the Department
of Water Resources. The representative of the State of Oregon
shall be the { - Water Resources Commission of Oregon who shall
serve as ex officio representative of the Water Resources
Commission of Oregon - } { + Oregon Department of Natural
Resources + }. The President is requested to appoint a federal
representative who shall be designated and shall serve as
provided by the laws of the United States.
2. The representative of each state shall be entitled to one
vote in the commission. The representative of the United States
shall serve as chairman of the commission without vote. The
compensation and expenses of each representative shall be fixed
and paid by the government which he represents. Any action by the
commission shall be effective only if it be agreed to by both
voting members.
3. The commission shall meet to establish its formal
organization within 60 days after the effective date of this
compact, such meeting to be at the call of the Governors of the
two states. The commission shall then adopt its initial set of
rules and regulations governing the management of its internal
affairs providing for, among other things, the calling and
holding of meetings, the adoption of a seal, and the authority
and duties of the chairman and executive director. The commission
shall establish its office within the Upper Klamath River Basin.
4. The commission shall appoint an executive director, who
shall also act as secretary, to serve at the pleasure of the
commission and at such compensation, under such terms and
conditions and performing such duties as it may fix. The
executive director shall be the custodian of the records of the
commission with authority to affix the commission's official
seal, and to attest to and certify such records or copies
thereof. The commission, without regard to the provisions of the
civil service laws of either state, may appoint and discharge
such consulting, clerical and other personnel as may be necessary
for the performance of the commission's functions, may define
their duties, and may fix and pay their compensation. The
commission may require the executive director and any of its
employees to post official bonds, and the cost thereof shall be
paid by the commission.
5. All records, files and documents of the commission shall be
open for public inspection at its office during established
office hours.
6. No member, officer or employee of the commission shall be
liable for injury or damage resulting from (a) action taken by
such member, officer or employee in good faith and without malice
under the apparent authority of this compact, even though such
action is later judicially determined to be unauthorized, or (b)
the negligent or wrongful act or omission of any other person,
employed by the commission and serving under such officer, member
or employee, unless such member, officer or employee either
failed to exercise due care in the selection, appointment or
supervision of such other person, or failed to take all available
action to suspend or discharge such other person after knowledge
or notice that such other person was inefficient or incompetent
to perform the work for which he was employed. No suit may be
instituted against a member, officer or employee of the
commission for damages alleged to have resulted from the
negligent or wrongful act or omission of such member, officer or
employee or a subordinate thereof occurring during the
performance of his official duties unless, within 90 days after
occurrence of the incident, a verified claim for damages is
presented in writing and filed with such member, officer or
employee and with the commission. In the event of a suit for
damages against any member, officer or employee of the commission
on account of any act or omission in the performance of his or
his subordinates' official duties, the commission shall arrange
for the defense of such suit and may pay all expenses therefor on
behalf of such member, officer or employee. The commission may at
its expense insure its members, officers and employees against
liability resulting from their acts or omissions in the
performance of their official duties. Nothing in this paragraph
shall be construed as imposing any liability upon any member,
officer or employee of the commission that he would otherwise not
have.
7. The commission may incur obligations and pay expenses which
are necessary for the performance of its functions. But it shall
not pledge the credit of any government except by and with the
authority of the legislative body thereof given pursuant to and
in keeping with the constitution of such government, nor shall
the commission incur any obligations prior to the availability of
funds adequate to meet them.
8. The commission may:
(a) Borrow, accept or contract for the services of personnel
from any government or agency thereof, from any intergovernmental
agency, or from any other entity.
(b) Accept for any of its purposes and functions under this
compact any and all donations, gifts, grants of money, equipment,
supplies, materials and services from any government or agency
thereof or intergovernmental agency or from any other entity.
(c) Acquire, hold and dispose of real and personal property as
may be necessary in the performance of its functions.
(d) Make such studies, surveys and investigations as are
necessary in carrying out the provisions of this compact.
9. All meetings of the commission for the consideration of and
action on any matters coming before the commission, except
matters involving the management of internal affairs of the
commission and its staff, shall be open to the public. Matters
coming within the exception of this paragraph may be considered
and acted upon by the commission in executive sessions under such
rules and regulations as may be established therefor.
10. In the case of the failure of the two voting members of the
commission to agree on any matter relating to the administration
of this compact as provided in paragraph 2 of this subdivision A,
the representative from each state shall appoint one person and
the two appointed persons shall appoint a third person. The three
appointees shall sit as an arbitration forum. The terms of
appointment and the compensation of the members of the
arbitration forum shall be fixed by the commission. Matters on
which the two voting members of the commission have failed to
agree shall be decided by a majority vote of the members of the
arbitration forum. Each state obligates itself to abide by the
decision of the arbitration forum, subject, however, to the right
of each state to have the decision reviewed by a court of
competent jurisdiction.
11. The commission shall have the right of access, through its
authorized representatives, to all properties in the Klamath
River Basin whenever necessary for the purpose of administration
of this compact. The commission may obtain a court order to
enforce its right of access.
B. 1. The commission shall submit to the Governor or designated
officer of each state a budget of its estimated expenditures for
such period and at such times as may be required by the laws of
that state for presentation to the legislature thereof. Each
state pledges itself to appropriate and pay over to the
commission one-half of the amount required to finance the
commission's estimated expenditures as set forth in each of its
budgets, and pledges further that concurrently with approval of
this compact by its legislature the sum of not less than $12,000
will be appropriated by it to be paid over to the commission at
its first meeting for use in financing the commission's functions
until the commission can prepare its first budget and receive its
first appropriation thereunder from the states.
2. The commission shall keep accurate accounts of all receipts
and disbursements, which shall be audited yearly by a certified
public accountant, and the report of the audit shall be made a
part of its annual report. The accounts of the commission shall
be open for public inspection during established office hours.
3. The commission shall make and transmit to the legislature
and Governor of each state and to the President of the United
States an annual report covering the finances and activities of
the commission and embodying such plans, recommendations and
findings as may have been adopted by the commission.
C. 1. The commission shall have the power to adopt, and to
amend or repeal, such rules and regulations to effectuate the
purposes of this compact as in its judgment may be appropriate.
2. Except as to matters involving exclusively the management of
the internal affairs of the commission and its staff or involving
emergency matters, prior to the adoption, amendment or repeal of
any rule or regulation the commission shall hold a hearing at
which any interested person shall have the opportunity to present
his views on the proposed action in writing, with or without the
opportunity to present the same orally. The commission shall give
adequate advance notice in a reasonable manner of the time, place
and subject of such hearings.
3. Emergency rules and regulations may be adopted without a
prior hearing, but in such case they may be effective for not
longer than 90 days.
4. The commission shall publish its rules and regulations in
convenient form.
ARTICLE X
STATUS OF INDIAN RIGHTS
A. Nothing in this compact shall be deemed:
1. To affect adversely the present rights of any individual
Indian, tribe, band or community of Indians to the use of the
waters of the Klamath River Basin for irrigation.
2. To deprive any individual Indian, tribe, band or community
of Indians of any rights, privileges, or immunities afforded
under federal treaty, agreement or statute.
3. To affect the obligations of the United States of America to
the Indians, tribes, bands or communities of Indians, and their
reservations.
4. To alter, amend or repeal any of the provisions of the Act
of August 13, 1954, (68 Stat. 718) as it may be amended.
B. Lands within the Klamath Indian Reservation which are
brought under irrigation after the effective date of this
compact, whether before or after section 14 of said Act of August
13, 1954, becomes fully operative, shall be taken into account in
determining whether the 200,000 acre limitation provided in
paragraph 1 of subdivision C of Article III has been reached.
ARTICLE XI
FEDERAL RIGHTS
Nothing in this compact shall be deemed:
A. To impair or affect any rights, powers or jurisdiction of
the United States, its agencies or those acting by or under its
authority, in, over and to the waters of the Klamath River Basin,
nor to impair or affect the capacity of the United States, its
agencies or those acting by or under its authority in any manner
whatsoever, except as otherwise provided by the federal
legislation enacted for the implementation of this compact as
specified in Article XIII.
B. To subject any property of the United States, its agencies
or instrumentalities, to taxation by either state or any
subdivision thereof, unless otherwise provided by Act of
Congress.
C. To subject any works or property of the United States, its
agencies, instrumentalities or those acting by or under its
authority, used in connection with the control or use of waters
which are the subject of this compact, to the laws of any state
to an extent other than the extent to which those laws would
apply without regard to this compact, except as otherwise
provided by the federal legislation enacted for the
implementation of this compact as specified in Article XIII.
D. To affect adversely the existing areas of Crater Lake
National Park or Lava Beds National Monument, or to limit the
operation of laws relating to the preservation thereof.
E. To apply to the use of water for the maintenance, on the
scale at which such land and water areas are maintained as of the
effective date of this compact, of officially designated
waterfowl management areas, including water consumed by
evaporation and transpiration on water surface areas and water
used for irrigation or otherwise in the Upper Klamath River
Basin; nor to affect the rights and obligations of the United
States under any migratory bird treaty or the Migratory Bird
Conservation Act (45 Stat. 1222), as amended to the effective
date of this compact.
ARTICLE XII
GENERAL PROVISIONS
A. Each state and all persons using, claiming or in any manner
asserting any right to the use of the waters of the Klamath River
Basin under the authority of either state shall be subject to the
terms of this compact.
B. Nothing in this compact shall be construed to limit or
prevent either state from instituting or maintaining any action
or proceeding, legal or equitable, in any court of competent
jurisdiction for the protection of any right under this compact
or the enforcement of any of its provisions.
C. Should a court of competent jurisdiction hold any part of
this compact to be contrary to the Constitution of either state
or the United States, all other provisions shall continue in full
force and effect, unless it is authoritatively and finally
determined judicially that the remaining provisions cannot
operate for the purposes, or substantially in the manner,
intended by the states independently of the portions declared
unconstitutional or invalid.
D. Except as to matters requiring the exercise of discretion by
the commission, the provisions of this compact shall be
self-executing and shall by operation of law be conditions of the
various state permits, licenses or other authorizations relating
to the waters of the Klamath River Basin issued after the
effective date of this compact.
E. The physical and other conditions peculiar to the Klamath
River Basin constitute the basis for this compact, and neither of
the states hereby, nor the Congress of the United States by its
consent, considers that this compact establishes any general
principle or precedent with respect to any other interstate
stream.
ARTICLE XIII
RATIFICATION
A. This compact shall become effective when ratified by the
legislature of each signatory state, and when consented to by an
Act of Congress of the United States which will, in substance,
meet the provisions hereinafter set forth in this Article.
B. The Act of Congress referred to in subdivision A of this
Article shall provide that the United States or any agency
thereof, and any entity acting under any license or other
authority granted under the laws of the United States (referred
to in this Article as 'the United States'), in connection with
developments undertaken after the effective date of this compact
pursuant to laws of the United States, shall comply with the
following requirements:
1. The United States shall recognize and be bound by the
provisions of subdivision A of Article III.
2. The United States shall not, without payment of just
compensation, impair any rights to the use of water for use (a)
or (b) within the Upper Klamath River Basin by the exercise of
any powers or rights to use or control water (i) for any purpose
whatsoever outside the Klamath River Basin by diversions in
California or (ii) for any purpose whatsoever within the Klamath
River Basin other than use (a) or (b). But the exercise of powers
and rights by the United States shall be limited under this
paragraph 2 only as against rights to the use of water for use
(a) or (b) within the Upper Klamath River Basin which are
acquired as provided in subdivision B of Article III after the
effective date of this compact, but only to the extent that
annual depletions in the flow of the Klamath River at Keno
resulting from the exercise of such rights to use water for uses
(a) and (b) do not exceed 340,000 acre-feet in any one calendar
year.
3. The United States shall be subject to the limitation on
diversions of waters from the basin of Jenny Creek as provided in
subdivision A of Article VIII.
4. The United States shall be governed by all the limitations
and provisions of paragraph 2 and subparagraph (a) of paragraph 3
of subdivision B of Article III.
5. The United States, with respect to any irrigation or
reclamation development undertaken by the United States in the
Upper Klamath River Basin in California, shall provide that
substantially all of the return flows and waste water finally
resulting from such diversions and use appearing as surface
waters in the Upper Klamath River Basin shall be made to drain so
as to be eventually returned to the Klamath River upstream from
Keno, unless the Secretary of the Interior shall determine that
compliance with this requirement would render it less feasible
than under an alternate plan of development, in which event such
return flows and waste waters shall be returned to the Klamath
River at a point above Copco Lake.
C. Upon enactment of the Act of Congress referred to in
subdivision A of this Article and so long as such Act shall be in
effect, the United States, when exercising rights to use water
pursuant to state law, shall be entitled to all of the same
privileges and benefits of this compact as any person exercising
similar rights.
D. Such Act of Congress shall not be construed as relieving the
United States of any requirement of compliance with state law
which may be provided by other federal statutes.
ARTICLE XIV
TERMINATION
This compact may be terminated at any time by legislative
consent of both states, but despite such termination, all rights
then established hereunder or recognized hereby shall continue to
be recognized as valid by the states.
_________________________________________________________________
SECTION 1628. ORS 542.630 is amended to read:
542.630. The { - Water Resources Director - } { + Director
of the Oregon Department of Natural Resources + } shall be the
only representative of this state in administering the Klamath
River Basin Compact set forth in ORS 542.620. The director shall
receive no additional compensation for services as such
representative, but, subject to any other applicable law
regulating mileage and traveling and other expenses for state
officers, shall receive actual and necessary traveling and other
expenses incurred in the performance of official functions as
such representative, to be paid in the same manner and out of the
same moneys as other similar expenses of the director are paid.
SECTION 1629. ORS 542.750 is amended to read:
542.750. (1) The { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } may make surveys and
investigations and prepare plans, specifications, estimates and
other data, as in the commission's judgment can accomplish the
purposes of the Watershed Protection and Flood Prevention Act. As
soon as practicable after completion the commission shall
prepare, or have prepared, a report setting forth the results of
the surveys and investigations. All work performed by the
commission under this section shall be correlated with that
performed by the United States Natural Resources Conservation
Service, or its successor agency, under the Watershed Protection
and Flood Prevention Act.
(2) The commission, on behalf of the State of Oregon, may enter
into contracts or agreements with any agencies of the United
States Department of Agriculture for the execution of surveys and
investigations and the preparation of plans, specifications and
estimates or other data to determine costs and feasibility of
reservoir or other works of improvement that may be constructed
under the provisions of the Watershed Protection and Flood
Prevention Act, as amended.
(3) The intent of this section is to expedite the investigation
and planning of works of improvement that may be constructed
under the Watershed Protection and Flood Prevention Act to reduce
the delay in time occurring between initiation of a project and
beginning of construction.
SECTION 1630. ORS 543.010 is amended to read:
543.010. As used in ORS 543.010 to 543.610:
(1) 'Actual original cost' includes the sum paid to the state
at the time the application was made for a preliminary permit;
the sum paid or secured to be paid to the state by the applicant
for license at the time such application was made; such sums as
may be paid to the United States or any department thereof; and
such sums as shall have been reasonably and prudently expended in
preliminary investigations, explorations and organization
expenses, as determined by the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + }.
(2) 'Project' means a complete unit, improvement or
development. It includes, among other things, power houses, water
wheels, conduits or pipes, dams and appurtenant works and
structures, storage, diverting or forebay reservoirs connected
therewith, and primary lines transmitting power to the point of
junction with a distributing system, or with any interconnected
primary system, miscellaneous works and structures used in
connection with the unit or any part thereof, rights of way,
lands, flowage rights and all other properties, rights and
structures necessary or appropriate in the use, operation and
maintenance of any such unit.
SECTION 1631. ORS 543.015 is amended to read:
543.015. The Legislative Assembly declares that it is the
policy of the State of Oregon:
(1) To protect the natural resources of this state from
possible adverse impacts caused by the use of the waters of this
state for the development of hydroelectric power.
(2) To permit siting of hydroelectric projects subject to
strict standards established to protect the natural resources of
Oregon.
(3) To require { - the Water Resources Commission, the Energy
Facility Siting Council, the Department of Environmental
Quality - } { + the Oregon Natural Resources Commission, the
Oregon Department of Natural Resources, the Department of
Environmental Quality, the Energy Facility Siting Council + } and
other affected state agencies to participate to the fullest
extent in any local, state or federal proceedings related to
hydroelectric power development in order to protect the natural
resources of Oregon.
SECTION 1632. ORS 543.017 is amended to read:
543.017. (1) In order to carry out the policy set forth in ORS
543.015, the following minimum standards shall apply to any
action of the { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } relating to the development of
hydroelectric power in Oregon:
(a) The anadromous salmon and steelhead resources of Oregon
shall be preserved. The commission shall not approve activity
that may result in mortality or injury to anadromous salmon and
steelhead resources or loss of natural habitat of any anadromous
salmon and steelhead resources except when an applicant proposes
to modify an existing facility or project in such a manner that
can be shown to restore, enhance or improve anadromous fish
populations within that river system.
(b) Any activity related to hydroelectric development shall be
consistent with the provisions of the Columbia River Basin Fish
and Wildlife Program providing for the protection, mitigation and
enhancement of the fish and wildlife resources of the region as
adopted by the Pacific Northwest Electric Power and Conservation
Planning Council pursuant to Public Law 96-501.
(c) Except as provided in this paragraph, no activity may be
approved that results in a net loss of wild game fish or
recreational opportunities. If a proposed activity may result in
a net loss of any of the above resources, the commission may
allow mitigation if the commission finds the proposed mitigation
in the project vicinity is acceptable. Proposed mitigation that
may result in a wild game fish population, or the fishery the
wild game fish population provides, being converted to a hatchery
dependent resource is not acceptable mitigation. A water
dependent recreational opportunity must be mitigated by another
water dependent recreational opportunity. Mitigation of water
dependent recreational opportunities that, in the judgment of the
commission, are of statewide significance with a recreational
opportunity that is readily available on other waters of this
state is not acceptable mitigation. In deciding whether
mitigation is acceptable, the commission shall consult with other
local, state and federal agencies.
(d) Other natural resources in the project vicinity, including
water quality, wildlife, scenic and aesthetic values, and
historic, cultural and archaeological sites, shall be maintained
or enhanced. No activity may be approved that, in the judgment of
the commission after balancing gains and losses to all affected
natural resources, may result in a net loss of natural resources.
In determining whether the proposed activity may result in a net
loss of natural resources, the commission may consider mitigation
if the commission determines the proposed mitigation in the
project vicinity is acceptable. Mitigation may include
appropriate measures considered necessary to meet the net loss
standard. In determining whether mitigation is acceptable, the
commission shall consult with appropriate state, federal and
local agencies.
(e) In determining whether it is in the public interest to
allocate water for a proposed hydroelectric development, the
commission shall consider present and future power needs and
shall make a finding on the need for the power. For a
hydroelectric project with a nominal electric generating capacity
of 25 megawatts or more, the { - Water Resources - }
commission shall consider any recommendation by the Energy
Facility Siting Council. The
{ - Energy Facility Siting - } council's recommendation shall
be based solely on information contained in the hearing record of
the
{ - Water Resources - } commission. The commission's order on
the proposed hydroelectric development shall describe the
{ - Energy Facility Siting - } council's recommendations on the
need for the power. If the commission's decision on the need for
power is contrary to the { - Energy Facility Siting - }
council's recommendation, the commission's order shall explain
the commission's failure to follow the recommendation of the
{ - Energy Facility Siting - } council. The commission also
shall consult with the { - Energy Facility Siting - } council
on other matters within the expertise of the
{ - Energy Facility Siting - } council.
(2) The commission shall adopt all necessary rules to carry out
the policy set forth in ORS 543.015 and to implement the minimum
standards set forth in subsection (1) of this section. In the
absence of implementing rules, any action of the commission
relating to hydroelectric development shall comply with the
standards as set forth in this section.
(3) Nothing in this section limits the authority of any state
agency to make recommendations regarding appropriate license
conditions during the consideration of the issuance of a license
or permit for an existing hydroelectric project.
SECTION 1633. ORS 543.050 is amended to read:
543.050. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } may:
(1) Issue preliminary permits, as provided in ORS 543.210 to
543.250, to any person qualified to become a licensee.
(2) Issue licenses, as provided in ORS 543.260, to citizens of
the United States, associations of citizens, or private
corporations organized under the laws of the United States or any
state of the United States, to appropriate, initiate, perfect,
acquire and hold the right to the use of waters within the state,
including waters over which the state has concurrent
jurisdiction, and to construct, operate and maintain dams,
reservoirs, power houses, conduits, transmission lines, and all
other works and structures necessary or convenient for the use of
the waters in the generation and utilization of electricity.
(3) Conduct investigations and collect information the
commission considers necessary or useful for the purposes of ORS
543.010 to 543.610 and cooperate with the federal government and
adjoining states concerning all such matters, particularly with
reference to waters forming the boundary between this state and
another state.
(4) Prescribe the forms of all accounts, records and memoranda
to be kept by licensees under ORS 543.010 to 543.610.
(5) Examine at any time all accounts, books of account and
documents and data related to the business of a licensee under
ORS 543.010 to 543.610; and require a licensee to submit,
whenever required by the commission, reports and statements under
oath containing information as to assets, liabilities,
capitalization, gross receipts, interest and dividend
requirements, interest due and paid, amortization and other
reserves, net investment, cost of any project constructed,
maintained or operated, in whole or in part, cost of maintenance,
operation, renewals, replacements, cost of production,
transmission, distribution and sale of electricity, and other
data as the commission may require.
(6) Perform all acts, exercise all powers and issue all orders
which, in the judgment and discretion of the commission, are
necessary to effectuate the purposes of ORS 543.010 to 543.610.
SECTION 1634. ORS 543.055 is amended to read:
543.055. (1) The { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } may hold hearings
and take testimony orally, by deposition or in such other form as
the commission considers satisfactory, either within or without
this state. The { - Water Resources - } commission may
require, by subpoena, the attendance of witnesses and the
production of documentary evidence.
(2) An administrative law judge assigned from the Office of
Administrative Hearings established under ORS 183.605, shall
conduct any contested case hearing that the commission is
required or permitted by law to hold. The administrative law
judge has the same powers with respect to the conduct of the
hearing as are granted by law to the commission, including the
taking of testimony, the signing and issuance of subpoenas and
the administering of oaths and affirmations to witnesses. The
administrative law judge shall keep a record of the proceedings
on the hearing and shall transmit such record to the commission.
(3) The commission may designate any person to take the
testimony, affidavit or deposition of a witness. The person so
designated may administer an oath or affirmation to any such
witness and take the testimony thereof in accordance with such
rules as the commission may prescribe.
(4) Witnesses appearing before the commission or any person
designated by the commission to take testimony shall be paid the
fees and mileage provided for witnesses in ORS 44.415 (2).
SECTION 1635. ORS 543.060 is amended to read:
543.060. The { - Water Resources Commission, the Water
Resources Director or any employee of the Water Resources
Department, at all reasonable times, - } { + Director of the
Oregon Department of Natural Resources, any employee of the
Oregon Department of Natural Resources and the Oregon Natural
Resources Commission + } shall have free access to any project,
addition or betterment during or after construction or
acquisition, and to all maps, plans, profiles, estimates,
engineers' reports, books, accounts, records and other data
relating to the project.
SECTION 1636. ORS 543.078 is amended to read:
543.078. (1) On or before January 1 of each year, each holder
shall pay to the State of Oregon an annual fee for each
hydroelectric project that is subject to this section. The annual
fee required by this section shall be based on the theoretical
horsepower specified in the water right for each project.
(2) The amount of the annual fee required under subsection (1)
of this section shall be determined in the following manner:
(a) Subject to the schedule set forth in subsection (3) of this
section, each holder shall pay an amount, in 1998 dollars, equal
to $0.405 per theoretical horsepower covered by the water right
for the holder's hydroelectric project. The annual fee may be set
forth in the water right or may be established by order of the
{ - Water Resources Director - } { + Director of the Oregon
Department of Natural Resources + } and shall be adjusted
annually for inflation according to rules established by the
{ - Water Resources Commission - } { + Oregon Natural Resources
Commission + }. The annual fee also may be adjusted through the
periodic review process established in ORS 543.085.
(b) Each holder of a hydroelectric project that produces 123.5
theoretical horsepower or less shall pay an annual fee of $50 for
that project.
(3) The fee determined in subsection (2) of this section shall
apply to a project on the January 1 following the occurrence of
an event enumerated as follows:
(a) A licensee or water right certificant shall begin to pay
the annual fee after the final order for the reauthorized water
right is issued under ORS 543A.130.
(b) Notwithstanding paragraph (a) of this subsection, if a
licensee holds, on October 23, 1999, an original state
hydroelectric license for which the original expiration date was
or is more than five years after the expiration date of the
original Federal Energy Regulatory Commission license for the
project, the licensee shall begin payment of the annual fee
established under this section after the expiration date of the
original state hydroelectric license.
(c) A power claimant, or uncertificated claimant, licensed by
the Federal Energy Regulatory Commission shall begin to pay the
annual fee after the Federal Energy Regulatory Commission issues
a new license. A power claimant or uncertificated claimant that
received a new license from the Federal Energy Regulatory
Commission within 10 years prior to October 23, 1999, shall begin
to pay the annual fee on January 1, 2000.
(d) A power claimant, or uncertificated claimant, whose project
is exempted from licensure by the Federal Energy Regulatory
Commission or not licensed by the Federal Energy Regulatory
Commission shall begin paying the annual fee under this section
on January 1, 2008, for that project.
(4) No fee shall be assessed under ORS 543.710 for a project
subject to an annual fee under this section.
SECTION 1637. ORS 543.080 is amended to read:
543.080. (1) In addition to the annual fee set forth in ORS
543.078, a holder may be required to pay project specific fees.
(2) Project specific fees are fees that compensate a state
agency for the agency's reasonable and necessary oversight of a
holder's implementation of the protection, mitigation and
enhancement measures included in a water right for the project, a
certificate issued pursuant to ORS 468B.040 or 468B.045 or a
Federal Energy Regulatory Commission license.
(3) Project specific fees shall be considered at the time of
reauthorization or relicensing of a hydroelectric project and, if
needed, shall be established before the proposed final order is
issued under ORS 543A.115, and shall be included in the
reauthorized water right or the certificate issued pursuant to
ORS 468B.040 or 468B.045. In the case of power claims and
uncertificated claims, project specific fees shall be considered
at the time of relicensing and, if needed, shall be included in
an order of the { - Water Resources Director - } { + Director
of the Oregon Department of Natural Resources + } amending the
claim pursuant to ORS 543.092 or in a certificate issued for the
project pursuant to ORS 468B.040 or 468B.045.
(4) The need for, and amount of, a project specific fee shall
be based upon the following factors:
(a) Experimental or unproven nature of the proposed mitigation;
(b) Significance of the resource affected;
(c) Need for ongoing agency involvement in reviewing the
effectiveness of the proposed measure;
(d) Need for agency personnel to perform field work or research
efforts; and
(e) Overall nature of the protection, mitigation or enhancement
measures, including but not limited to consideration of whether
the measure is simple, complex, closed-ended or adaptive and
whether the measure is determined solely by the holder or by an
agency or public committee.
(5) A project specific fee may not be assessed for:
(a) Work on projects other than the project for which the fee
is established;
(b) Work that is paid for by the annual hydroelectric fee;
(c) Development of statewide hydroelectric policy;
(d) Coordination of statewide activities within an agency;
(e) Costs to the agency of Attorney General assistance
associated with ongoing litigation; or
(f) Routine monitoring of compliance with nonadaptive
management provisions of the water right, an uncertificated
claim, a certificate issued pursuant to ORS 468B.040 or 468B.045
or a Federal Energy Regulatory Commission license.
(6) A project specific fee shall be time-limited. One year
before expiration of a project specific fee, the holder and any
affected agency shall review the need, if any, to modify, extend
or terminate the project specific fee. After such review, the
agency shall propose a fee modification, extension or
termination. Any dispute regarding the proposed fee action shall
be referred to an independent fact finder selected by mutual
agreement, whose costs shall be borne one-half by the holder and
one-half by the agency. The fact finder shall review whether the
proposed fee action is appropriate under and consistent with the
criteria set forth in subsections (2), (4) and (5) of this
section. The fact finder shall not review the substance of the
protection, mitigation and enhancement measures contained in the
water right, the uncertificated claim, the certificate issued
pursuant to ORS 468B.040 or 468B.045 or the Federal Energy
Regulatory Commission license. The fact finder shall forward its
determination in writing to the holder and agency. Upon receipt
and consideration of the fact finder's determination, the agency
shall notify the holder whether the project specific fee is
modified, extended or terminated. If the holder is dissatisfied
with the fee action, the holder may request administrative or
judicial review in accordance with statutes or rules applicable
to a particular agency's fee action. The written determination of
the fact finder shall be admissible in any such administrative or
judicial hearing. Notwithstanding any other law, a presumption
shall exist in favor of the determination of the fact finder and
the burden shall be on the party seeking a fee action contrary to
the determination of the fact finder to demonstrate that a
different fee action is justified under this section.
(7) Subject to subsections (2) to (5) of this section, the
amount of a project specific fee shall be established based on an
estimate of the cost to the agency of the labor, supplies and
overhead expended by the agency in providing reasonable and
necessary oversight of a holder's implementation of the
protection, mitigation and enhancement measures included in the
water right, the uncertificated claim, the certificate issued
pursuant to ORS 468B.040 or 468B.045 or the Federal Energy
Regulatory Commission license. The estimate used to derive a
project specific fee amount shall be determined by using
increments of not more than 0.25 full-time equivalents.
(8) A project specific fee shall be payable after issuance of
the final order pursuant to ORS 543A.130, or in the case of power
claimants and uncertificated claimants, after the issuance of
either the director's order or a certificate issued for the
project pursuant to ORS 468B.040 or 468B.045. A project specific
fee shall be paid in increments that are reasonably related to
the work to be performed and set forth in the final order,
certificate issued pursuant to ORS 468B.040 or 468B.045 or the
director's order.
(9) Each agency receiving project specific fees shall, on a
biennial basis, provide the holder paying the fees with a summary
of project specific expenditures.
SECTION 1638. ORS 543.082 is amended to read:
543.082. (1) At least 45 days before the fees required under
ORS 543.078 or 543.080 become due, the { - Water Resources
Department - } { + Oregon Department of Natural Resources + }
shall issue invoices to the holder for each fee.
(2) If any holder fails to pay the fees required under ORS
543.078 or 543.080 within 15 days after the date specified in the
invoice, the department shall notify the holder of the amount and
nature of the overdue fee. Any such notice shall be sent to the
holder by certified mail and shall include notification that the
holder has 30 days from the date of the certified delivery of the
notice to pay the overdue fee or the holder shall be subject to
the late payment penalty provisions of subsection (3) of this
section.
(3) Any fee that is not paid within 30 days of the date a
holder receives certified delivery of the notice required under
subsection (2) of this section shall be considered delinquent and
shall be increased by 25 percent. In addition, the state shall
have a preference lien for any such fee, together with interest
at the rate of 10 percent per annum from the date of delinquency,
upon the property of the holder used, or necessary for use, in
the development of the water right, together with any
improvements erected on the property for such development. Upon
notice from the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + }, the Attorney General shall foreclose
the lien and collect the amount due, as provided in this section,
in the same manner as other liens on real property are
foreclosed.
(4) The remedy set forth in subsection (3) of this section is
in addition to any other remedy provided by law for the
collection of moneys or for noncompliance with a condition of a
water right order, uncertificated claim or certification under
ORS 468B.040 or 468B.045.
SECTION 1639. ORS 543.085 is amended to read:
543.085. (1) The { - Water Resources Director - }
{ + Director of the Oregon Department of Natural Resources + }
shall appoint a review panel to review the amount of the annual
fee established under ORS 543.078 in 2003 and 2009 and every
eight years thereafter. The review panel shall consist of at
least one representative from the following and others at the
director's discretion:
(a) The Department of Environmental Quality;
{ - (b) The State Department of Fish and Wildlife; - }
{ - (c) - } { + (b) + } The Public Utility Commission;
{ - (d) The Water Resources Department; - }
{ - (e) - } { + (c) + } Investor owned utilities;
{ - (f) - } { + (d) + } Publicly owned utilities;
{ - (g) - } { + (e) + } Municipalities;
{ - (h) - } { + (f) + } Environmental organizations;
{ - (i) - } { + (g) + } Agricultural organizations; and
{ - (j) - } { + (h) + } Nonutility owners of hydroelectric
projects.
(2) All holders paying annual fees under ORS 543.078 shall be
notified by the { - Water Resources Department - } { + Oregon
Department of Natural Resources + } at least 60 days in advance
of the meeting of the review panel established in subsection (1)
of this section, and provided the opportunity to submit comments
to the panel.
(3) Any periodic review conducted under subsection (1) of this
section shall evaluate each agency's hydroelectric program to
determine if current staffing levels, activities and funding are
appropriate to fulfill program objectives. There shall be a
presumption that the fee should not change. To overcome the
presumption and alter the existing fee, the panel must find
compelling reasons for alteration and must reach unanimous
consent on the new fee. If the presumption is overcome, upon
completion of the review process the director shall either adjust
the annual fee as recommended by the panel or elect not to adjust
the fee. Any change in the annual fee as a result of this section
shall become effective on the January 1 following the director's
action. The director shall notify all holders of any change in
the annual fee and the effective date of such change.
SECTION 1640. ORS 543.088 is amended to read:
543.088. (1) Notwithstanding ORS 543A.405 and 543A.410, during
each year of the interim period established in subsection (2) of
this section, any licensee or water right certificant seeking
reauthorization of a state water right to operate a federally
licensed hydroelectric project shall pay the greater of:
(a) The actual cost of the Hydroelectric Application Review
Team's reauthorization activities for the year in question as
established pursuant to ORS 543A.405 and 543A.410; or
(b) 12.5 cents per theoretical horsepower as specified in the
water right for each project under consideration for
reauthorization. This amount shall be calculated in 1998 dollars.
(2) For any project, the interim period referred to in
subsection (1) of this section shall begin on the January 1
immediately following submission { - to the Water Resources
Department - } of a proposed final order for reauthorization of
the project { + to the Oregon Department of Natural
Resources + } under ORS 543A.115 (2). For any project, the
interim period referred to in subsection (1) of this section
shall end on December 31 of the year the department issues a
final order on reauthorization of the project pursuant to ORS
543A.130.
(3) Notwithstanding ORS 543.090, during each year of the
interim period established in subsection (4) of this section, any
power claimant or uncertificated claimant seeking to relicense a
federally licensed hydroelectric project shall pay the greater
of:
(a) The actual cost of the team's relicensing activities for
the year in question as established pursuant to ORS 543.090; or
(b) 12.5 cents per theoretical horsepower as specified in the
water right for each project under consideration for relicensing.
This amount shall be calculated in 1998 dollars.
(4) For any project, the interim period referred to in
subsection (3) of this section shall begin on the January 1
immediately following issuance of an annual license for the
project by the Federal Energy Regulatory Commission. For any
project, the interim period referred to in subsection (3) of this
section shall end on December 31 of the year the Federal Energy
Regulatory Commission issues a new license for the project.
(5) The { - Water Resources - } department shall reimburse a
participating agency for costs incurred in the agency's review of
a project during the year for which the fees are collected. Such
costs shall not include expenses of other state agencies for
which a fee is otherwise collected under state law. Any fees
collected under subsection (1) or (3) of this section in excess
of the team's actual cost of evaluation of the project for the
year shall be distributed according to ORS 536.015.
(6) No fee shall be charged under this section unless the
project is a federally licensed project.
(7) No fee shall be charged pursuant to subsection (1) of this
section unless the Hydroelectric Application Review Team proposes
to reauthorize the water right for the project in the proposed
final order submitted to the { - Water Resources - }
department under ORS 543A.115 (2).
(8) Water right certificants and licensees with water rights or
licenses that expire more than five years after the original
federal license for the project expires shall not begin paying
fees assessed under this section until after the expiration date
of the original state hydroelectric license or water right.
SECTION 1641. ORS 543.090 is amended to read:
543.090. (1) Any project operating under a hydroelectric
license issued by the Federal Energy Regulatory Commission and
concurrently operating under the authority of a power claim or
uncertificated claim shall pay all expenses related to the review
and decision of a Hydroelectric Application Review Team
established under ORS 543A.075 that:
(a) Are incurred by the team and any agency participating as
part of the team in the federal relicensing process; and
(b) Are not otherwise covered by the reauthorization fee paid
under ORS 543A.415.
(2) Not later than six years before the expiration of a
hydroelectric license issued by the Federal Energy Regulatory
Commission to any project operating concurrently under the
authority of a power claim or uncertificated claim, the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + } shall contact the holder to schedule a
consultation meeting regarding expected fees to be incurred by
the Hydroelectric Application Review Team.
(3) Relicensing fees shall be calculated and assessed according
to the terms and conditions set forth in ORS 543A.405 and
543A.410 for application fees.
SECTION 1642. ORS 543.092 is amended to read:
543.092. (1) Upon the request of the holder and the approval of
the { - Water Resources Department - } { + Oregon Department
of Natural Resources + }, a hydroelectric water right or claim
may be amended.
(2) The { - Water Resources - } department shall develop
rules governing the process by which a hydroelectric water right
or claim may be amended. Any amendments under subsection (1) of
this section shall:
(a) Be consistent with the final unified state position for the
project;
(b) Be consistent with the requirements of ORS chapter 543A;
(c) Cause no injury to other water rights; and
(d) Allow for public participation in the amendment process.
(3) The { - Water Resources Director - } { + Director of
the Oregon Department of Natural Resources + } may unilaterally
amend a power claim or uncertificated claim in order to assess
project specific fees under ORS 543.080.
SECTION 1643. ORS 543.150 is amended to read:
543.150. The provisions of ORS 543.010, 543.050, 543.210,
543.220, 543.250, 543.260 and 543.290 to 543.610 shall not apply
to cities, towns or other municipal corporations of this state,
including utility districts organized under section 12, Article
XI, Oregon Constitution, and legislation enacted thereunder;
saving, however, to such cities, towns and other municipal
corporations the rights and preferences specified in ORS 543.260,
543.270 and 543.610. The { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } shall exercise the
powers in relation to utility districts as may be conferred upon
the commission by any legislation providing for the creation of
such utility districts.
SECTION 1644. ORS 543.175 is amended to read:
543.175. (1) Except as provided in subsection (2) of this
section, no person, state agency, local government, district or
municipal corporation shall construct or maintain, and no officer
or agency of the state shall issue any permit for the
construction or maintenance of any hydroelectric facility or
structure on that portion of the Upper Deschutes River situated
within the city limits of the City of Bend except for a facility
that meets all of the following criteria:
(a) The facility is located on an existing irrigation diversion
facility or structure constructed by persons.
(b) The operation of the facility would not require any water
in addition to water appropriated for irrigation purposes.
(c) Operation of the facility would be limited to the period of
time during which water is diverted for irrigation purposes and
the diversion would not be extended for the purpose of
hydroelectric power generation.
(2) Subsection (1) of this section shall not apply to the
construction and maintenance of or the issuance of a permit for a
hydroelectric facility or structure for which the hearing record
is closed on or before the July 12, 1985, whether or not the
record is later reopened by or at the direction of the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + } for any reason.
(3) As used in this section, 'Upper Deschutes River' means that
portion of the mainstem Deschutes River between the North Canal
Dam at approximately river mile 165 and the head waters of the
Deschutes River.
SECTION 1645. ORS 543.210 is amended to read:
543.210. (1) Any person who proposes to operate a hydroelectric
project in Oregon shall apply for a state preliminary permit. Any
person who applies to the Federal Energy Regulatory Commission
for a preliminary permit to operate a hydroelectric project
shall, at the same time, apply for a state preliminary permit.
The { - Water Resources Commission - } { + Oregon Natural
Resources Commission + } may issue a preliminary permit to any
person possessing the qualifications of a licensee as specified
in ORS 543.010 to 543.610.
(2) The application for a preliminary permit shall set forth:
(a) The name and post-office address of the applicant;
(b) The approximate site of any proposed dam or diversion;
(c) The amount of water in cubic feet per second;
(d) The theoretical horsepower; and
(e) Any other data the { + Oregon Natural Resources + }
Commission may by rule require.
(3) Upon receipt of an application for a preliminary permit the
{ + Oregon Natural Resources + } Commission shall indorse on the
application the date of receipt, and keep a record of the receipt
of the application. The date so indorsed shall determine the
priority of the use of water initiated under the provisions of
ORS 543.010 to 543.610.
(4) At the time of filing application for preliminary permit
the applicant shall pay to the state the portion of the total
project fee required in ORS 543.280, to cover costs of recording,
publishing notices and making investigations necessary to
determine whether or not a preliminary permit should be granted.
SECTION 1646. ORS 543.220 is amended to read:
543.220. (1) Whenever an application is made for a preliminary
permit and after said application has been referred to hearing,
the { - Water Resources Commission - } { + Oregon Natural
Resources Commission + } shall give written notice of the filing
of the application to:
(a) Any municipality or other person or corporation which, in
the judgment of the commission, is likely to be interested in or
affected by the proposed project; and
(b) The owner of any land that is:
(A) Adjacent to any portion of the stream in which the quantity
of water will be decreased by the project; or
(B) Adjacent to the site of the proposed project.
(2) The commission shall also publish notice of the application
once each week for at least four successive weeks and for such
further time, if any, as the commission shall determine, in a
newspaper of general circulation in each county in which the
project covered by the application is located.
(3) No application for the appropriation or use of water for
the development of 1,000 theoretical horsepower or more shall be
granted until at least six months after the application for a
preliminary permit has been filed.
SECTION 1647. ORS 543.225 is amended to read:
543.225. (1) The { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } shall conduct a
public hearing on any application or amended application for a
preliminary permit or for a license for a major project of more
than 100 theoretical horsepower and an application for
preliminary permit or license for a minor project of less than
100 theoretical horsepower if the commission concludes it is in
the public interest to do so.
(2) The commission shall give proper notice of the public
hearing on an application under subsection (1) of this section,
to the applicant and to each protestant, if any. After the
hearing, if the commission determines that the proposed project
does not comply with the standards set forth in ORS 543.017 or
rules adopted by the commission under ORS 543.017, or would
otherwise impair or be detrimental to the public interest so far
as the coordinated, integrated state water resources policy is
concerned, it shall enter an order rejecting the application or
requiring its modification to conform to the public interest, to
the end that the highest public benefit may result from the
proposed project. The order may set forth any or all of the
provisions or restrictions to be included in a preliminary permit
or license concerning the use, control and management of the
water to be appropriated for the project, including, but not
limited to, a specification of reservoir operation and minimum
releases to protect the public interest.
(3) In determining whether the proposed project would impair or
be detrimental to the public interest, the commission shall have
due regard for:
(a) Conserving the highest use of the water for all purposes,
including irrigation, domestic use, municipal water supply, power
development, public recreation, protection of commercial and game
fishing and wildlife, fire protection, mining, industrial
purposes, navigation, scenic attraction or any other beneficial
use to which the water may be applied for which it may have a
special value to the public.
(b) The maximum economic development of the waters involved.
(c) The control of the waters of this state for all beneficial
purposes, including drainage, sanitation and flood control.
(d) The amount of waters available for appropriation for
beneficial use.
(e) The prevention of wasteful, uneconomic, impracticable or
unreasonable use of the waters involved.
(f) All vested and inchoate rights to the waters of this state
or to the use thereof, and the means necessary to protect such
rights.
(g) The state water resources policy formulated under ORS
536.295 to 536.350 and 537.505 to 537.534.
(4) After the entry of the order specified in subsection (2) of
this section, the application for a preliminary permit or for a
license shall be referred to the { - Water Resources
Director - } { + Director of the Oregon Department of Natural
Resources + } for further proceedings consistent with the
commission's order.
SECTION 1648. ORS 543.230 is amended to read:
543.230. (1) The { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } shall, by order or
rule, provide for the time and manner of hearings upon
applications. However, upon request by any person made within 30
days after the { - Water Resources Director - } { + Director
of the Oregon Department of Natural Resources + } issues an order
pertaining to cumulative impacts under ORS 543.255, the
{ - Water Resources - } commission shall conduct a contested
case hearing in accordance with the applicable provisions of ORS
chapter 183 and any rules adopted by the commission.
(2) Every application for the appropriation of water for the
generation of electricity subject to the terms of ORS 543.010 to
543.610 shall be subject to protest or remonstrance on behalf of
the public, or any district organized for public purposes, or any
interested private person, on the ground that the proposed
construction, development or improvement would damage or destroy
the use or utility of the stream or other body of water involved
for other beneficial purposes, including propagation of fish,
scenic, aesthetic, recreational, park, highway or other
beneficial use. All protests and remonstrances under this
subsection must be filed with the commission within the time
specified in the notice and must be in writing and verified by
the parties protesting, and a certified copy thereof shall be
served upon the applicant for the permit. However, in the
discretion of the administrative law judge, at the time of the
hearing any interested party may make an oral protest if there
exists any good reason therefor, and the administrative law judge
shall allow the applicant to be heard in opposition thereto.
Every protest or remonstrance under this subsection which is not
filed and served as required in this subsection shall be deemed
waived.
SECTION 1649. ORS 543.250 is amended to read:
543.250. A preliminary permit may be issued for a period not
exceeding a total of three years. It shall not be transferable
except upon written approval of the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + }, and
may be canceled by order of the commission at any time upon proof
to the commission's satisfaction, after hearing, that the holder
is not in good faith complying with the provisions of the permit.
The holder of a preliminary permit which has not been canceled
shall have priority of right to make application for a license
covering the project for which the preliminary permit was issued,
within the term of the permit or any lawful extension thereof.
Except as otherwise specified in ORS 543.010 to 543.610, the
commission may fix the terms and conditions of any preliminary
permit issued thereunder, and each preliminary permit issued
shall set forth all the terms and conditions. The commission may
decline to grant any application for a preliminary permit.
SECTION 1650. ORS 543.255 is amended to read:
543.255. (1) Whenever the { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } receives an
application to appropriate water for a new hydroelectric project
under ORS 537.140 to 537.320 or for a hydroelectric permit or
license under ORS 543.010 to 543.610, the department shall
determine whether the impacts of the project would be cumulative
with:
(a) Impacts of other proposed hydroelectric projects for which
an application is pending before the department; or
(b) Existing hydroelectric projects in the same river basin.
(2) If the department determines that there is no possibility
that the hydroelectric projects proposed in pending applications
or existing projects may have cumulative effects, the { - Water
Resources Director - } { + Director of the Oregon Department of
Natural Resources + } shall issue an order setting forth the
department's determination that there are no cumulative effects
and the department's decision that consolidated review is not
required.
(3) If the department determines that pending applications or
existing projects may have cumulative effects, the { - Water
Resources Commission - } { + Oregon Natural Resources
Commission + } shall conduct a consolidated review before
approving any application in the affected river basin. A
consolidated review process shall be conducted as a contested
case hearing under the applicable provisions of ORS chapter 183
and shall include a study of the individual and cumulative
effects of proposed hydroelectric projects for which applications
are pending before the department and existing hydroelectric
projects. In its final order on an application, the commission or
the department shall include its findings on cumulative impacts.
The findings of the commission or department under this section
must be sufficient to support the department's decision to
approve or deny an application.
(4) Any application for a project in the same river basin filed
after the commission begins a consolidated review contested case
hearing shall not be reviewed until the commission has issued
final findings on cumulative effects for all projects included in
the consolidated review proceeding.
(5) At the request of an applicant for a permit to appropriate
water for a new hydroelectric project under ORS 537.140 to
537.320 or for a permit or license under ORS 543.010 to 543.610,
the commission may immediately upon receiving such application
begin the consolidated review proceeding under subsection (3) of
this section.
SECTION 1651. ORS 543.260 is amended to read:
543.260. (1) A license may be issued by the { - Water
Resources Commission - } { + Oregon Natural Resources
Commission + } to any qualified person for a period not exceeding
50 years. If the project is subject to regulation by the Federal
Energy Regulatory Commission, the term shall be concurrent with
and expire upon expiration of the federal license for the
project. Each license shall be conditioned upon acceptance by the
licensee of all the terms and conditions of ORS 543.010 to
543.610, and such further terms and conditions as the { + Oregon
Natural Resources + } Commission may prescribe, not inconsistent
with those sections. All such terms and conditions, and their
acceptance by the licensee, shall be expressed in the license. A
license may be terminated for the reasons and in the manner
provided in ORS 543.010 to 543.610. The form of license
containing all the terms and conditions may be set forth in the
preliminary permit.
(2) The { + Oregon Natural Resources + } Commission may deny
any application for a license if it appears that the applicant
has failed to comply substantially with the terms and conditions
of the preliminary permit or, notwithstanding the commission has
issued a preliminary permit, if in the judgment of the commission
the project is unfeasible or the public interest requires the
denial thereof.
(3) A municipal corporation or people's utility district shall
be given preference on any project in the issuance of a license,
upon condition that the municipal corporation or people's utility
district exercising such preference right shall be required to
reimburse the holder of a preliminary permit for all reasonable
actual expenditures made by the holder upon the project described
or referred to therein.
SECTION 1652. ORS 543.265 is amended to read:
543.265. The { - Water Resources Department - } { + Oregon
Department of Natural Resources + } shall impose as a condition
to any water right permit to appropriate water for hydroelectric
purposes granted under ORS 537.211 or any license granted under
ORS 543.260 that the person operating the hydroelectric project
shall, during the operational lifetime of the project, perform or
allow the
{ - State Department of Fish and Wildlife - }
{ + department + } to perform, any tests or studies required by
the department to evaluate the effectiveness of measures for the
protection of fish. The scope and cost of these studies will be
negotiated between the { - State Department of Fish and
Wildlife - } { + department + } and the operator.
SECTION 1653. ORS 543.270 is amended to read:
543.270. In issuing preliminary permits, and in issuing
licenses where no preliminary permit is held by an applicant for
a license, preference shall be given to the application which
appears to the { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } to be best adapted to conserve
and utilize the water power involved. However, any application
for the use of water made by any municipal corporation of this
state under any law of the state, before a preliminary permit is
issued, or before a license is issued when no preliminary permit
upon the proposed project has been issued, shall always have
preference.
SECTION 1654. ORS 543.280 is amended to read:
543.280. (1) Any person who applies to the Federal Energy
Regulatory Commission for a preliminary permit to operate a
hydroelectric project shall, at the same time, apply for a state
preliminary permit. An applicant for a state preliminary permit
for a new hydroelectric project shall submit to the { - Water
Resources Commission - } { + Oregon Natural Resources
Commission + } a complete copy of any application for the project
filed with the Federal Energy Regulatory Commission or other
federal agency. For preliminary permits, if the copy of the
federal application is filed with the { + Oregon Natural
Resources + } Commission at the same time it is filed with the
federal agency, at the { + Oregon Natural Resources + }
Commission's discretion, such copy may fulfill the requirements
of ORS 543.210, except for the fee requirement in ORS 543.210
(4).
(2) An applicant for a preliminary permit or license for a
project or for a permit to appropriate water for power purposes
shall pay to the state a project fee based on the capacity of the
project to cover costs of recording, publishing notices,
conducting the hearing required by ORS 543.225 and making
investigations necessary to determine whether a permit should be
granted.
(3) The amount of the total project fee required under
subsection (2) of this section shall be:
(a) For a project of less than 100 theoretical horsepower,
$1,000.
(b) For any project of 100 theoretical horsepower or more, an
amount equal to $5,000 plus $1,000 per megawatt for each megawatt
of capacity in excess of five megawatts, up to a maximum of
$100,000.
(4) Except for projects of less than 100 theoretical
horsepower, the project fee required under subsection (2) of this
section shall be payable in advance before each of four stages of
project review as established by rule by the { - Water
Resources Commission - } { + Oregon Natural Resources
Commission + }. The payment schedule shall not require the
applicant to pay more than $2,500 of the project fee at the first
stage of project review or more than 50 percent of the total
project fee in the first two stages of the project review. For a
project of less than 100 theoretical horsepower, the applicant
shall pay 50 percent of the fee at the time of filing the
application for a preliminary permit or application for a permit
to appropriate water for power purposes and the remaining 50
percent before the commission issues a license or a water right
permit. A person may withdraw an application for a hydroelectric
project after any stage of project review without further payment
of fees under this section.
(5) In addition to the project fee required under subsection
(2) of this section, any applicant for a project to be sited at a
location where anadromous fish or threatened or endangered
species are present shall pay a surcharge of 30 percent of the
total project fee. The surcharge shall be collected in
conjunction with the project fee at each stage of the project
review.
(6) The { + Oregon Natural Resources + } Commission shall
provide an applicant a statement itemizing the staff time,
resources and costs expended to review the application at each
project stage. The statement shall include the costs expended by
the { - State Department of Fish and Wildlife and the Water
Resources Department - } { + Oregon Department of Natural
Resources that are + } specific to the project.
SECTION 1655. ORS 543.290 is amended to read:
543.290. The applicant for a license shall submit to and file
with the { - Water Resources Commission - } { + Oregon
Natural Resources Commission + }:
(1) All maps, plans, specifications and cost estimates as may
be required by the commission for a full understanding of the
proposed project. The maps, plans and specifications, when
approved by the commission, shall become a part of the license,
if one is issued upon the application, and thereafter no change
shall be made in any such maps, plans and specifications until
the proposed change has been approved by the commission. When a
proposed change is approved by the commission, the changes shall
become a part of the license.
(2) Any further statements and data as may be required by the
commission concerning the proposed project, the market to be
served, the financial responsibility of the applicant, the plan
of financing and any other matters deemed material by the
commission.
SECTION 1656. ORS 543.300 is amended to read:
543.300. Any license issued under ORS 543.010 to 543.610 shall
take into consideration, and shall be on, the following
conditions:
(1) That the proposed project shall be such as, in the judgment
of the { - Water Resources Commission - } { + Oregon Natural
Resources Commission + }, is well adapted to the development and
utilization of the water power involved.
(2) That the licensee shall construct and build the project
according to the maps, plans and specifications filed with and
approved by the commission, and within the time fixed by the
license or by any lawful extension thereof.
(3) The operations of the licensee so far as they affect the
use, storage and discharge from storage of waters affected by the
license, shall at all times be controlled by such reasonable
rules as the commission may prescribe for the protection of life,
health and property, and in the interest of the fullest
practicable conservation and utilization of such waters for power
purposes and for other beneficial public uses, including
recreational purposes. The licensee shall release water from the
project reservoir at such rate in cubic feet per second, or such
volume in acre-feet per specified period of time, as the
commission may prescribe.
(4) That the licensee will maintain the project, and each part
thereof, in good order and repair and in efficient operation, for
the development and transmission of electricity to its reasonable
capacity; shall make all necessary renewals and replacements as
required; and shall maintain and operate the project, and all
parts thereof, conformably to the rules of the commission not
inconsistent with ORS 543.010 to 543.610.
(5) That the licensee will pay to the state annually not more
than $1 for each horsepower covered by the license. This sum
shall constitute a first lien upon the project, which lien may be
enforced by suit in equity or other appropriate proceeding, or
payment thereof may be enforced by the state in an action for
debt. Payment of such license fees may be waived by the
commission during all or any part of the period of construction.
The fees need not be uniform throughout the entire period of the
license, but may be for different amounts for different periods.
The amount of the license fees, within the minimum and maximum
limits herein specified, shall be determined by the commission
and expressed in the license.
(6) Other and further conditions not inconsistent with ORS
543.010 to 543.610 as the commission may require in the public
interest.
(7) In issuing a license for a minor project of not more than
100 horsepower the commission may waive all or any of the
conditions and requirements of ORS 543.010 to 543.610 except the
period for which a license may be issued, and the annual charge
as determined by the commission under subsection (5) of this
section. In issuing licenses for projects in excess of 100
horsepower for which the applicants are required to secure
permits and licenses from the United States as a condition
precedent to the construction of the projects, the commission may
waive and modify such of the terms, conditions and requirements
of ORS 543.010 to 543.610, except the period for which a license
may be issued and the annual charge as determined by the
commission under subsection (5) of this section, as the
commission, by order, after full investigation and public
hearing, shall find to make impracticable the construction of
such projects. During the time that a licensee is not a public
utility and does not sell electric energy, and does not sell
bonds or other evidences of debt against the licensee's plant,
the commission may waive the accounting and amortization
requirements of ORS 543.010 to 543.610, even where the project
involved exceeds 100 horsepower.
(8) Subsection (5) of this section does not apply to a water
right reauthorized pursuant to ORS chapter 543A.
SECTION 1657. ORS 543.410 is amended to read:
543.410. (1) The licensee shall commence the construction of
the project works within the time fixed in the license, which
shall not be more than two years from the date thereof, shall
thereafter in good faith and with due diligence prosecute such
construction, and shall, within the time fixed in the license,
complete and put into operation such part of the ultimate
development as the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } considers necessary
to supply the reasonable needs of the then available market, and
shall, from time to time thereafter construct such portion of the
balance of the development as the commission directs, so as to
supply adequately the reasonable market demands until development
is completed.
(2) The period for commencement of construction may be extended
once but not longer than two additional years, and the period for
the completion of construction carried on in good faith and with
reasonable diligence may be extended by the commission when not
incompatible with the public interests.
(3) If the licensee does not commence actual construction of
the project works or of any specified part of the project works,
within the time prescribed in the license or as extended by the
commission, then, after due notice given, the license shall, as
to the project works or part of the project works, be terminated
upon written order of the commission.
SECTION 1658. ORS 543.420 is amended to read:
543.420. If construction of a project under license has been
begun but has not been completed within the time prescribed in
the license or in any lawful extension thereof, then the Attorney
General, upon request of the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + }, shall institute
proceedings in the circuit court for the county in which some
part of the project is situated, for termination of the rights of
the licensee under the license, the sale of the property embraced
in the project, and for such other relief as the case may demand.
Any judgment or decree entered in the proceeding shall provide
for distribution of the proceeds of the sale to the parties
equitably entitled thereto. The purchaser at any such sale shall
take the property subject to all the terms and conditions of the
license under which construction was begun, except insofar as
they may be modified by the commission.
SECTION 1659. ORS 543.430 is amended to read:
543.430. The Attorney General shall, upon request of the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + }, institute proceedings in the circuit
court for the county in which any project, or the major part of a
project is situated, after the project has been completed, for
the purpose of revoking for violation of its terms any license
issued under ORS 543.010 to 543.610, or for the purpose of
correcting or remedying by injunction, mandamus or other
appropriate writ or decree, any act by the licensee in violation
of the terms of those sections, or of any rule or order of the
commission. The court shall have jurisdiction of the proceedings
and may issue and execute all necessary process to compel
compliance with the terms of any license, the terms of ORS
543.010 to 543.610, the lawful orders and rules of the
commission. If a decree revoking a license is entered, the court
may sell the whole, or any part, of a project under the license;
wind up the business of the licensee conducted in connection with
the project; distribute the proceeds to the parties equitably
entitled thereto; and make and enforce such further orders and
decrees as equity and justice may require. At any such sale the
purchaser shall take the rights and privileges belonging to the
licensee and shall perform all the duties of the licensee under
the license. The remedies provided by this section are in
addition to the remedies otherwise provided by ORS 543.010 to
543.610.
SECTION 1660. ORS 543.440 is amended to read:
543.440. No voluntary transfer of any license or any rights
under a license or of any property acquired, constructed or
operated pursuant to license issued under ORS 543.010 to 543.610
shall be made without written approval of the { - Water
Resources Commission - } { + Oregon Natural Resources
Commission + }. Any successor or assignee of any licensee under
any project acquired, constructed or operated by licensee,
whether by voluntary transfer approved by the commission or sale
upon foreclosure, execution or otherwise, shall be subject to all
the terms and conditions of the license and of the provisions of
ORS 543.010 to 543.610 to the same extent as though the successor
or assignee was the original licensee thereunder. Any mortgage,
deed of trust, or other lien suffered or created upon any such
project shall be subject and subordinate to all the terms and
conditions of ORS 543.010 to 543.610. However, the provisions of
this section shall not apply to any transfer, voluntary or
involuntary, to the state or any municipal corporation thereof,
and upon such transfer the license shall terminate.
SECTION 1661. ORS 543.530 is amended to read:
543.530. (1) No licensee shall issue any share of corporate
stock, or any bond, or other evidence of interest in or
indebtedness of the licensee, or assume any obligation or
liability as lessor, lessee, guarantor, indorser, surety or
otherwise, in respect of the corporate shares, bonds or other
evidence of indebtedness of any person in connection with the
financing, acquisition, construction, maintenance or operation of
any project, unless and until, and then only to the extent that,
upon application by the licensee, and after investigation by the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + } of the purposes and uses of the proposed
issue and the proceeds thereof, or of the proposed assumption of
obligation or liability, the commission, by order, authorizes the
issue or assumption. The commission shall make the order only if
the commission finds that the issue or assumption:
(a) Is for some lawful object of the licensee, compatible with
the public interest, and is necessary to, or appropriate for, the
proper performance by the licensee of the terms and conditions of
the license and will not impair the licensee's ability to perform
the terms and conditions; and
(b) Is reasonably necessary and appropriate for such purposes.
(2) The commission may grant or deny the application to
authorize the issue or assumption, or grant the same in part and
deny in part, and may modify the provisions of any previous order
and prescribe such terms and conditions as the commission
considers necessary or appropriate in the premises. Every such
application shall be made in such form and contain such data as
the commission by rule may prescribe.
(3) No licensee or any director, officer, attorney or agent
thereof shall knowingly assent to or concur in any issue or
assumption contrary to the provisions of this section, or the
orders of the commission made pursuant to this section or ORS
543.540.
SECTION 1662. ORS 543.540 is amended to read:
543.540. No bonds, notes or other obligations or securities or
corporate stock shall be issued in connection with the financing,
construction or acquisition of any project or part of a project,
under a license issued pursuant to ORS 543.010 to 543.610, except
for cash or property. If issued for property, the price or value
at which the property is to be acquired by the licensee and made
a part of any such project must be submitted to and approved by
the { - Water Resources Commission - } { + Oregon Natural
Resources Commission + } before it is purchased or acquired. All
corporate shares issued in connection with any such project shall
have a nominal or par value. All bonds, notes or other
obligations or securities, and all shares of corporate stock
issued or sold by any licensee in connection with the
acquisition, construction or financing of any project, or part of
a project, shall be issued or sold or used in the purchase or
acquisition of property at the full face or nominal value
thereof, unless the commission consents to and approves the sale
for cash, or the use of cash in the purchase or acquisition of
property at a discount from the face or nominal value of the
property. Any discount so approved and consented to shall be
considered a part of the cost of financing.
SECTION 1663. ORS 543.550 is amended to read:
543.550. No lien for labor, services, materials, machinery or
equipment shall exist or be acquired or enforced upon any
property acquired, constructed or made a part of any project
under license issued pursuant to ORS 543.010 to 543.610. No
property shall be put into or made part of any such project
unless owned by the licensee free and clear of all liens and
claims whatsoever, except a lien created by the licensee upon the
whole property embraced in the project by mortgage or deed of
trust, to the end that the entire property embraced in the
project be kept and maintained as an indivisible whole. The
mortgage or deed of trust may include other property. Any
voluntary sale or any sale upon a judgment of foreclosure,
execution or otherwise, shall be of the whole property embraced
in the project unless the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + }, by an order in
writing, consents to and approves of a sale of a part of the
property. If less than the whole of any property embraced in a
project is sold with the consent and approval of the commission,
the commission shall determine at the time of the sale the actual
net investment in the part sold, as well as the actual net
investment in the part remaining unsold.
SECTION 1664. ORS 543.560 is amended to read:
543.560. Before entering upon the work of construction or
acquisition of any project, the licensee shall execute to the
state a bond, with good and sufficient sureties or an irrevocable
letter of credit issued by an insured institution, as defined in
ORS 706.008, in either case, to be approved by the { - Water
Resources Commission - } { + Oregon Natural Resources
Commission + }, to the effect that the licensee shall promptly
make payment to all persons supplying labor, services, material,
machinery or equipment for the prosecution of the work, and all
amounts due the State Industrial Accident Fund from the licensee.
Any person supplying the licensee with any labor, services,
material, machinery or equipment for prosecution of the work who
has not been paid therefor within 60 days after the same has been
supplied, or when payment is due according to any special
agreement, may, within one year after any payment has become due,
bring an action against the licensee, and the sureties upon the
bond, or the letter of credit issuer for payment of the amount
due to the person, and prosecute the same to final judgment and
execution. The action shall be brought in the name of the state
upon the relation of the person to whom payment is due. The
state, at the request of the State Accident Insurance Fund
Corporation may prosecute an action to judgment and execution
against the licensee and the sureties upon the bond or letter of
credit for all sums due the State Industrial Accident Fund.
SECTION 1665. ORS 543.610 is amended to read:
543.610. (1) Upon not less than two years' notice in writing
the state, or any municipality thereof, shall have the right at
any time to take over and thereafter to maintain and operate any
project constructed under a license pursuant to ORS 543.010 to
543.610, upon payment of just compensation, including such
reasonable damages, if any, to valuable, serviceable and
dependent property of the holder of the license, not taken over,
as may be caused by the severance therefrom of the property
taken, and shall assume all contracts entered into by the
licensee which are required to have and do have the express
approval of the { - Water Resources Commission - } { + Oregon
Natural Resources Commission + }. If the sum to be paid cannot be
agreed upon by the holder of the license and the municipality or
the state, as the case may be, it shall be determined in a
proceeding in equity instituted by the state or municipality, as
the case may be, in the circuit court of the county in which the
major part of the project is located.
(2) There is also expressly reserved to the state, and any
municipality thereof, the right to take over all or any part of
any project by condemnation proceedings as may be provided by the
laws of Oregon or the charter of any such municipality.
SECTION 1666. ORS 543.662 is amended to read:
543.662. A district may contract with a private person to
enlarge or modify the district's water system for the purpose of
generating hydroelectric power. The district shall retain
sufficient benefit and interest in, and control of a joint
project as necessary for the project to be considered a district
project. A district and a private person developing a joint
project under ORS 543.650 to 543.685 must comply with the rules
adopted by the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + } under ORS 543.664.
SECTION 1667. ORS 543.664 is amended to read:
543.664. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } shall establish rules necessary
to carry out the provisions of ORS 543.662. The rules shall
include the amount of control over and interest in a joint
project a district must retain in order to receive the benefit of
the municipal preference and proceed under the municipal
application process set forth in ORS chapter 537.
SECTION 1668. ORS 543.710 is amended to read:
543.710. Every claimant other than a licensee under ORS 543.010
to 543.610 shall on or before January 1 of each year pay to the
state in advance an annual fee based upon the theoretical water
horsepower claimed under each separate claim to water, graduated
as follows: Thirty cents for each theoretical water horsepower or
fraction thereof up to and including 50 and 28 cents for each
theoretical water horsepower or fraction thereof in excess of 50.
However, upon filing the statement provided in ORS 543.720, the
United States or the state, claiming the right to the use of
water to any extent for the generation of power, or any other
claimant to the right to use water for the generation of 10
theoretical water horsepower or less, shall be exempted from the
payment of all fees provided for in this section. Four cents of
each 28 cents collected as an annual fee under this section shall
be deposited { - to the Water Resources Department
Hydroelectric Fund and disbursed to the Department of
Environmental Quality. - } { + in the Oregon Natural Resources
Fund. Moneys deposited in the fund under this section are
continuously appropriated to the Oregon Department of Natural
Resources for purposes described in ORS 536.015. + }
SECTION 1669. ORS 543.720 is amended to read:
543.720. (1) The fees provided for in ORS 543.710 shall be paid
to the { - Water Resources Commission - } { + Oregon Natural
Resources Commission + } in advance, and shall be accompanied by
a written statement showing the extent of the claim. The
statement shall set forth the name and address of the claimant;
the name of the stream from which the water is appropriated or
claimed for power development; a description of the 40 acres, or
smallest legal subdivision in which the point of diversion and
point of return are located; the date of the right as claimed;
the maximum amount of water claimed expressed in cubic feet per
second of time; the total average fall utilized under such claim;
the manner of developing power; and the use to which the power is
applied. If the regular flow is supplemented by water stored in a
reservoir, the location of the reservoir, its capacity in
acre-feet and the stream from which it is filled and fed, should
be given, also the date of the right as claimed, for storage
purposes.
(2) If any claimant fails or neglects to file the statement or
to pay the fees within the time specified, the fees due and
payable shall be the amount specified in ORS 543.710 increased 25
percent. The state shall have a preference lien for the fees due,
together with interest at the rate of 10 percent per annum from
date of delinquency, upon the property of the claimant used, or
necessary for use, in the development of the right or claim,
together with any improvements erected on the property for such
development. Upon notice from the commission, the Attorney
General shall foreclose the lien and collect the amount due, as
provided in this section, in the same manner as other liens on
real property are foreclosed.
(3) The filing of a claim to water in excess of the amount to
which the claimant is legally entitled shall not operate to vest
in the claimant any right to the use of such excess water, nor
shall the payment of the annual license fee provided for in ORS
543.710 operate to vest in any claimant any right to the use of
such water beyond the amount to which claimant is legally
entitled. The filing of any such claim to water shall be
conclusive evidence as to the abandonment by the claimant of all
rights to water for power purposes in excess of the claim as
filed.
(4) The amount of theoretical water horsepower upon which fees
shall be paid under the provisions of ORS 543.710 and 543.720
shall be computed by multiplying the maximum amount of water
claimed, expressed in cubic feet per second, by the average total
fall utilized, expressed in feet, and dividing the product by
8.8.
SECTION 1670. ORS 543.730 is amended to read:
543.730. (1) Failure of any claimant for a period of five
successive years ending after August 20, 1957, to file the
written statement showing the extent of the claim as required by
ORS 543.720, or failure of any claimant for a period of five
successive years ending after August 20, 1957, to pay the annual
license fee as required by ORS 543.710, shall be conclusive
evidence of the abandonment by the claimant of the claim and of
all right to water for power purposes in connection with such
claim.
(2) When a claim is abandoned under the provisions of
subsection (1) of this section, or whenever a claimant has
voluntarily authorized, in writing, the cancellation of a claim
or the water right in connection therewith, the { - Water
Resources Commission - } { + Oregon Natural Resources
Commission + } shall:
(a) Cancel the claim on the records of the { - Water
Resources Department - } { + Oregon Department of Natural
Resources + }.
(b) Cancel any permit to appropriate water or any water right
certificate issued in connection with such claim.
SECTION 1671. ORS 543.765 is amended to read:
543.765. (1) Notwithstanding ORS 537.145 and ORS chapter 543,
the holder of a water right may apply to the { - Water
Resources Department - } { + Oregon Department of Natural
Resources + } for a certificate to use water for hydroelectric
purposes within an artificial delivery system under the
applicant's existing water right. If the proposed hydroelectric
project qualifies for a Federal Energy Regulatory Commission
exemption, the applicant may use the expedited application
process under this section.
(2) An application, which shall be on a form provided by the
department, for a hydroelectric certificate under this section
must include:
(a) The certificate number, or decree reference if no
confirming certificate has been issued, of the applicant's
existing water right associated with the proposed hydroelectric
project.
(b) A copy of a Federal Energy Regulatory Commission exemption
application, if applicable.
(c) A proposed schedule of annual water use and an estimate of
the maximum power generation of the proposed hydroelectric
project.
(d) A statement by the applicant that the amount of water used
by the proposed hydroelectric project will not exceed the amount
authorized and used under the applicant's existing water right
for beneficial use without waste.
(e) A statement that the applicant owns or otherwise controls
the water conveyance system.
(f) An application processing fee of $500. The department shall
deposit fees collected under this section into the { - Water
Resources Department Hydroelectric Fund established pursuant to
ORS 536.015. - } { + Oregon Natural Resources Fund. Moneys
deposited in the fund under this paragraph are continuously
appropriated to the department for the purpose of carrying out
the duties, functions and powers of the department as prescribed
by section 1 (9) of this 2011 Act. + }
(g) A map or drawing and all other data concerning the proposed
hydroelectric project, as may be prescribed by the department.
The map or drawing must be of sufficient quality and scale to
establish the location of the existing point of diversion and the
proposed location of the hydroelectric facility.
(h) If the water to be used for the proposed hydroelectric
project is delivered by a public entity other than the applicant
for a certificate under this section, a statement from that
entity that the entity will be able to deliver water as described
in the application.
(i) Evidence that the water has been used over the past five
years according to the terms and conditions of the applicant's
existing water right described in paragraph (a) of this
subsection.
(3) If an applicant provides the information required by
subsection (2) of this section:
(a) The { - Water Resources - } department shall provide
notice to
{ - both the State Department of Fish and Wildlife and - } the
public { - , - } and provide a 30-day period for public comment.
(b) The { - Water Resources - } department may issue a final
order and certificate to use water for hydroelectric purposes
upon making a final determination that the proposed hydroelectric
use does not impair, or is not detrimental to, the public
interest in the manner provided in ORS 537.170 (8).
(4) If the { - Water Resources - } department determines
that public interest issues have been identified, the department
shall issue a final order denying the application. The department
shall also issue a final order denying the application if the
department identifies issues related to the public interest. If
the applicant does not appeal the final order as provided in ORS
chapter 183 and, within one year of the department's final order
denying the applicant's application, files an application with
the department for a preliminary permit to operate a
hydroelectric project as provided in ORS 537.130 and 543.210, the
applicant shall receive a credit toward the applicant's
application fees in the amount of $500.
(5) At a minimum, a certificate issued under this section must
contain the following conditions:
(a) Fish screens, by-pass devices and fish passages as required
by the { - State Department of Fish and Wildlife - } { +
department + }.
(b) That use of water be limited to periods when the
applicant's existing water right is put to beneficial use without
waste and that the amount used is not greater than the quantity
of water diverted to satisfy the authorized specific use under
the existing water right described in subsection (2)(a) of this
section.
(c) That use of water be limited by rate, duty, season and any
other limitations of the applicant's existing water right
described in subsection (2)(a) of this section.
(d) That the applicant measure and report the quantity of water
diverted.
(e) Any other conditions the { - Water Resources - }
department deems necessary to protect the public interest.
(f) That the restrictions established in ORS 543.660 shall
apply as conditions of use to a certificate issued under this
section to a district as defined in ORS 543.655.
(g) That a certificate issued under this section shall be
invalidated upon a change in the point of diversion of the
existing water right described in subsection (2)(a) of this
section.
(h) The { - Water Resources - } department shall conduct a
review of certificates issued under this section and shall issue
a final order and a superseding certificate that corresponds to
any changes or adjustments made to the applicant's existing water
right described in subsection (2)(a) of this section.
(i) That the right to use water under a certificate issued
under this section is invalidated if the Federal Energy
Regulatory Commission exemption related to the certificate is
canceled or invalidated.
(6) A certificate issued under this section may not have its
own priority date. The department may not regulate for or against
any certificate issued under this section based on the priority
date of the certificate.
(7) A certificate issued under this section does not grant a
right to divert water for hydroelectric purposes.
(8) A certificate issued under this section may not be included
in the determination of injury to other water rights pursuant to
ORS chapter 540.
(9) A certificate issued under this section is subject to
review 50 years after the date of issuance and pursuant to the
terms described in this section.
(10) Failure to fully develop and put to use a certificate
issued under this section within five years of issuance
invalidates the hydroelectric certificate.
(11) If a certificate under this section is issued, the
certificate holder must pay fees consistent with the fees
described in ORS 543.078. Failure to pay a required fee
invalidates a certificate issued under this section.
(12) The department shall issue invoices for fees required
under this section, and the state shall have a preference lien
for delinquent fees, as provided in ORS 543.082.
(13) An applicant for a certificate issued under this section
must provide evidence of a Federal Energy Regulatory Commission
exemption before a certificate can be issued, if applicable.
(14) Nothing in this section shall alter the preference of
municipalities in ORS 543.260 (3) and 543.270.
SECTION 1672. ORS 543.990 is amended to read:
543.990. (1) Violation of ORS 543.530 (3) is punishable, upon
conviction, by a fine of not more than $5,000, or by imprisonment
for not more than one year, or both.
(2) Violation of { - any of the provisions of ORS 543.010 to
543.610, or any of the conditions made a part of any license
issued under ORS 543.010 to 543.610, or any subpoena of the Water
Resources Commission or of an administrative law judge or any
person designated by the commission to take testimony, any lawful
order or rule of the commission - } { + ORS 543.010 to 543.610,
a condition made a part of a license issued under ORS 543.010 to
543.610, an order or rule of the Director of the Oregon
Department of Natural Resources or the Oregon Natural Resources
Commission or a subpoena issued by the director, the commission,
an administrative law judge or other person designated by the
director or commission to take testimony + } is a Class B
misdemeanor.
(3) Any person who willfully and knowingly gives false
testimony concerning a material matter in { - any - }
{ + a + } hearing before the { + director, + } commission, an
administrative law judge or { - any person designated by the
commission - } { + a person designated by the director or
commission + } to take testimony, or in { - any - } { + a + }
deposition or affidavit to be used in a matter pending before the
{ + director, + } commission or administrative law judge, or
{ + who + } willfully and knowingly verifies a false statement
or report filed with the { + director or + } commission,
{ - shall be - } { + is + } guilty of perjury and may be
prosecuted and punished as otherwise provided by law for the
prosecution and punishment of perjury.
SECTION 1673. ORS 543A.005 is amended to read:
543A.005. As used in ORS 543A.005 to 543A.415:
{ - (1) 'Commission' means the Water Resources
Commission. - }
{ - (2) 'Department' means the Water Resources
Department. - }
{ - (3) 'Director' means the Water Resources Director. - }
{ - (4) - } { + (1) + } 'Federally licensed project' means
an existing project licensed under ORS 543.260 that is also
licensed by and has been or will be reviewed by the Federal
Energy Regulatory Commission under the Federal Power Act, as
amended.
{ - (5) - } { + (2) + } 'Project' has the meaning given in
ORS 543.010.
{ - (6) - } { + (3) + } 'State project' means an existing
project for which the authority to operate is a time-limited
water right for the use of water for hydroelectric purposes and
that is not licensed by the Federal Energy Regulatory Commission.
'State project' includes a project granted an exemption by the
Federal Energy Regulatory Commission.
{ - (7) - } { + (4) + } 'Team' means a Hydroelectric
Application Review Team established pursuant to ORS 543A.035,
543A.075 or 543A.300.
{ - (8) - } { + (5) + } 'Water right' includes the use of
water for hydroelectric purposes pursuant to a license issued
under ORS 543.260.
SECTION 1674. ORS 543A.020 is amended to read:
543A.020. The Legislative Assembly declares that it is the
policy of the State of Oregon:
(1) To reauthorize the use of water by existing projects
provided that such projects meet the standards established in ORS
543A.025, are consistent with other applicable state laws and
will not impair or be detrimental to the public interest.
(2) To recognize that existing projects have resulted in both
benefits and costs to society, and that the opportunity exists on
reauthorization to promote the public benefits while minimizing
the public costs.
(3) To maintain or enhance the natural resources of the state
and to protect the natural resources of the state from adverse
impacts caused by the continued existence of a project.
(4) To protect the health and safety of the residents of the
state.
(5) To require the { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } and other
affected state agencies to conduct a coordinated review of
projects seeking reauthorization in order to develop a unified
state position in any local, state or federal proceedings related
to the reauthorization of hydroelectric projects.
SECTION 1675. ORS 543A.025 is amended to read:
543A.025. (1) Following the process set forth in ORS 543A.005
to 543A.410, the { - Water Resources Director - }
{ + Director of the Oregon Department of Natural Resources + }
shall issue a water right for continued operation of an existing
hydroelectric project upon a finding that the proposed use will
not impair or be detrimental to the public interest, considering:
(a) Conserving the highest use of the water for all purposes,
including irrigation, domestic use, municipal water supply, power
development, public recreation, protection of commercial and game
fishing and wildlife, fire protection, mining, industrial
purposes, navigation, scenic attraction or any other beneficial
use to which the water may be applied for which it may have a
special value to the public.
(b) The maximum economic development of the waters involved.
(c) The control of the waters of this state for all beneficial
purposes, including drainage, sanitation and flood control.
(d) The amount of waters available for appropriation for
beneficial use.
(e) The prevention of wasteful, uneconomic, impracticable or
unreasonable use of the waters involved.
(f) All vested and inchoate rights to the waters of this state
or to the use of the waters of this state, and the means
necessary to protect such rights.
(g) The state water resources policy formulated under ORS
536.295 to 536.350 and 537.505 to 537.534.
(2) In determining whether the proposed use will impair or be
detrimental to the public interest, the following minimum
standards shall apply:
(a) For impacts to fish and wildlife resources attributable to
the project, the { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } shall require:
(A) Mitigation for:
(i) Adverse impacts that occur due to new construction or
operational changes to the project; and
(ii) Ongoing adverse impacts existing at the time of
reauthorization; and
(B) Appropriate measures to promote restoration and
rehabilitation of fish and wildlife resources to support goals
expressed in statute or in standards, plans, guidelines and
policies adopted by { - rule by the State Fish and Wildlife
Commission - } { + the Oregon Natural Resources Commission by
rule + }.
(b) All conditions included in a water right certificate issued
to reauthorize the use of water for hydroelectric purposes shall
be consistent with any plan adopted by the Pacific Northwest
Electric Power and Conservation Planning Council for the
protection, mitigation and enhancement of the fish and wildlife
resources of the region.
(c) The project shall comply with water quality standards
adopted by the Environmental Quality Commission.
(d) The project shall not endanger the public health and
safety. The project shall be operated in a manner that provides
practical protection from vulnerability to seismic and geologic
hazards.
(e) Wetland resources shall be protected, maintained or
enhanced. The { - Water Resources - } department shall impose
conditions on reauthorization consistent with this paragraph
after considering impacts to wetland resources associated with
the project, including wetlands lost or created by construction
and operation of the project, and mitigation proposed by the
applicant. Reauthorization that results in a net loss to existing
wetland resources shall not be approved.
(f) Other resources in the project vicinity including
recreational opportunities, scenic and aesthetic values,
historic, cultural and archaeological sites, and botanical
resources shall be protected, maintained or enhanced. The
department shall impose conditions on reauthorization consistent
with this paragraph after considering impacts to such resources
associated with the project, including resources lost or created
by construction and operation of the project, and mitigation
proposed by the applicant. If the project results in a net loss
to existing resources, reauthorization shall not be approved.
(3) In determining the mitigation, restoration and
rehabilitation measures required under subsection (2) of this
section, the { - Water Resources - } department shall consider
historic impacts, ongoing impacts and projected future impacts of
the project and the existence and success of past mitigation
measures associated with the project. Required mitigation,
restoration and rehabilitation may include measures to restore or
replace the benefits of historic resource conditions in order to
meet resource goals contained in standards, plans, guidelines and
policies adopted by { - rule by the State Fish and Wildlife
Commission - } { + the Oregon Natural Resources Commission by
rule + } and in rules adopted by other state agencies with
regulatory or advisory responsibility for the project.
(4) The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } shall adopt all rules necessary
to carry out the policy set forth in ORS 543A.020 and to
implement the minimum standards set forth in subsection (2) of
this section. In the absence of implementing rules, the
department may act on applications for reauthorization of a
project subject to the standards set forth in this section.
(5) As used in this section, 'mitigation' means addressing the
adverse effects of a project proposed for reauthorization by
considering, in the following order of priority:
(a) Avoiding the impact altogether by not taking a certain
development action or parts of that action;
(b) Minimizing impacts by limiting the degree or magnitude of
the development action and its implementation;
(c) Rectifying the impact by repairing or rehabilitating the
affected environment;
(d) Reducing or eliminating the impact over time by
preservation or maintenance operations during the life of the
development action by monitoring and taking appropriate
corrective measures; and
(e) Compensating for the impact by replacing or providing
comparable substitute resources or environments.
SECTION 1676. ORS 543A.030 is amended to read:
543A.030. (1) Not later than three years before the expiration
of a water right for a state project, the { - Water Resources
Department - } { + Oregon Department of Natural Resources + }
shall notify the project owner of the expiration of the water
right and request that the owner advise the department whether
the owner intends to seek reauthorization of the water right for
the state project.
(2) If the owner does not intend to seek reauthorization, the
owner shall, within 90 days after receiving notice under
subsection (1) of this section, inform the department of the
disposition of the state project.
(3) If the owner intends to seek reauthorization, the owner
shall, within 90 days after receiving notice under subsection (1)
of this section, submit to the department a notice of intent to
file an application for reauthorization of the water right. The
notice of intent shall:
(a) Include a statement of the applicant's intent to continue
operation of the state project; and
(b) Describe the state project, including but not limited to
the location and capacity of the state project and the
identification of affected Indian tribes and local government
entities.
(4) The department shall cause public notice to be given upon
receipt of a notice of intent. The public notice shall include
the date of expiration of the water right and a description of
the state project.
(5) Only the project owner may apply to reauthorize the water
right for a state project.
SECTION 1677. ORS 543A.035 is amended to read:
543A.035. (1) Within 60 days after submitting a notice of
intent under ORS 543A.030, the applicant shall submit to the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + } an application to reauthorize the water
right for the state project on a form prescribed by the
department.
(2) The reauthorization application for a water right for the
use of water for hydroelectric purposes shall set forth:
(a) The name and post-office address of the applicant;
(b) The location of the project by county and stream and, when
appropriate, by city or nearby city;
(c) The amount of water in cubic feet per second;
(d) The theoretical water horsepower; and
(e) Any other information required in the application form.
(3) Upon receipt of a reauthorization application for the use
of water for hydroelectric purposes, the { - Water
Resources - } department shall convene the Hydroelectric
Application Review Team for the state project. The team shall
consist of representatives
{ - of the Water Resources Department, the Department of
Environmental Quality and the State Department of Fish and
Wildlife and may include a representative of - } { + from the
department who are knowledgeable about the water and fish and
wildlife resources of this state, the Department of Environmental
Quality and + } any other state agency that has regulatory or
advisory responsibility for the state project or a resource or
hazard affected by the state project.
(4) Within seven days after receiving a reauthorization
application under subsection (3) of this section, the
{ - department - } { + Oregon Department of Natural
Resources + } shall notify any person who responded to the notice
of intent and give public notice of the application in the weekly
notice published by the department. The notice shall include a
request for comments on the application and information
pertaining to how an interested person may obtain future notices
about the application and participate in the reauthorization
process.
(5) Within 45 days after the public notice under subsection (4)
of this section, any person interested in the application shall
request future notices about the state project and may submit
written comments to the { - department - } { + Oregon
Department of Natural Resources + }.
SECTION 1678. ORS 543A.040 is amended to read:
543A.040. (1) Within 60 days after the close of the period
allowed for public comment under ORS 543A.035, the Hydroelectric
Application Review Team shall determine whether the
reauthorization application for the water right contains
sufficient information to determine whether reauthorization of
the state project will comply with ORS 543A.025.
(2) If the team decides that sufficient information is
available to determine whether reauthorization of the water right
for the state project will comply with ORS 543A.025, the team
shall proceed with expedited processing of the reauthorization
application. The team shall review the application and any public
comments received on the application and prepare a draft proposed
final order, including findings of fact and conclusions of law,
for the water right. Upon completion of the draft proposed final
order, the team shall give public notice of the draft proposed
final order in the weekly notice published by the { - Water
Resources Department - } { + Oregon Department of Natural
Resources + }. The notice shall include a request for comments on
the draft proposed final order.
(3) Within 60 days after the public notice under subsection (2)
of this section, any person interested in the draft proposed
final order shall submit written comments to the team. A person
who submits written comments under this subsection shall identify
the provision of the draft proposed final order in question and
specify why the person objects to or supports the provision. The
team shall review the comments received and may revise the draft
proposed final order. Unless the department receives a request
under subsection (4) of this section, the team shall submit a
proposed final order to the department within 30 days after the
close of the period for public comment on the draft proposed
final order.
(4) If the draft proposed final order prepared by the team
under subsection (2) of this section proposes to deny the
application for reauthorization of the water right, the applicant
may request the department to process the application in
accordance with ORS 543A.045 to 543A.055. The applicant shall
submit a request under this subsection within the 60-day period
allowed for public comment on the draft proposed final order.
(5) Unless the department receives a request under subsection
(4) of this section, the department shall issue the proposed
final order in accordance with the provisions of ORS 543A.120 to
543A.300.
(6) If the team determines that additional information is
necessary to determine whether reauthorization of the state
project will comply with ORS 543A.025, the applicant shall comply
with the process established in ORS 543A.045 to 543A.055 and
543A.120 to 543A.300.
SECTION 1679. ORS 543A.045 is amended to read:
543A.045. (1) If the Hydroelectric Application Review Team
finds additional information is necessary to complete the
reauthorization process, the applicant, in conjunction with the
team, shall convene a public scoping meeting.
(2) The applicant shall be responsible for conducting the
public scoping meeting. The team, federal agencies, federally
recognized Indian tribes and members of the public shall be
invited to participate. The purpose of the public scoping meeting
shall be to allow an opportunity for the participants to review
the information available and to:
(a) Discuss a proposed schedule for completion of the
reauthorization process;
(b) Discuss studies and additional information that may be
needed; and
(c) Identify other resources and other health and safety issues
of the state that must be considered in the reauthorization
process.
(3) At the public scoping meeting, the team shall:
(a) Explain to the public the process for reauthorizing the
state project; and
(b) Identify to the public the members of the team.
(4) Within 90 days after the public scoping meeting, the team
shall publish notice of the availability of the plan for
completing the review process, including a time schedule. The
plan shall be developed by the { - Water Resources
Department - } { + Oregon Department of Natural Resources + }
in consultation with the applicant.
SECTION 1680. ORS 543A.055 is amended to read:
543A.055. (1) The Hydroelectric Application Review Team shall
review the application report prepared under ORS 543A.050 and
prepare a draft proposed final order approving or denying the
reauthorization of the water right. The draft proposed final
order shall include the findings required for a proposed final
order under ORS 543A.120. Upon completion of the draft proposed
final order, the { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } shall give public
notice of the draft proposed final order in the weekly notice
published by the department. The notice shall include a request
for comments on the draft proposed final order.
(2) Within 60 days after the public notice under subsection (1)
of this section, any person interested in the draft proposed
final order shall submit written comments to the team.
(3) Within 30 days after the close of the period for public
comment on the draft proposed final order, the team shall make
any revisions necessary in response to comments received and
submit a proposed final order to the department.
(4) The department shall complete the reauthorization process
in accordance with the provisions of ORS 543A.120 to 543A.300.
SECTION 1681. ORS 543A.060 is amended to read:
543A.060. (1) For a federally licensed project, the { - Water
Resources Department - } { + Oregon Department of Natural
Resources + } and the Hydroelectric Application Review Team shall
conduct the state reauthorization review, to the maximum extent
feasible, in a manner that is consistent with and avoids
duplication of federal agency review. Such coordination shall
include, but need not be limited to:
(a) Whenever feasible, elimination of duplicative application,
study and reporting requirements;
(b) Hydroelectric Application Review Team use of information
generated and documents prepared for the federal agency review;
(c) Development with the federal agency and reliance on a joint
record to address applicable state standards;
(d) Whenever feasible, joint hearings and issuance of a state
water right decision in a time frame consistent with the federal
agency review; and
(e) To the extent consistent with applicable state standards,
establishment of conditions in any state hydroelectric water
right that are consistent with the conditions established, or
required to be incorporated into licensing, by the federal
agency.
(2) In order to better coordinate with the review of the
project by the Federal Energy Regulatory Commission, the team
may, at the request of an applicant, make changes to the process
set forth in ORS 543A.060 to 543A.115, if the changes do not
diminish opportunities for public input otherwise provided by ORS
543A.060 to 543A.115.
SECTION 1682. ORS 543A.065 is amended to read:
543A.065. (1) Notwithstanding the expiration date set forth in
a water right for an existing federally licensed project, upon
the request of the holder of the water right, the { - Water
Resources Department - } { + Oregon Department of Natural
Resources + } may:
(a) Extend the expiration date of the water right, for a period
of up to 15 years, to correspond to the expiration date of the
federal license for the project; or
(b) Process an application for reauthorization of the water
right prior to the actual expiration date of the water right in
order to correspond with the expiration of the federal license
for the project.
(2) For a project with a water right that expires more than 15
years before the expiration date of the federal license for the
project, the Hydroelectric Application Review Team shall evaluate
the project under the process and standards established in ORS
543A.005 to 543A.025 and 543A.060 to 543A.410 for a state
project. A reauthorized water right for such a project may be
for a term concurrent with the federal license.
SECTION 1683. ORS 543A.071 is amended to read:
543A.071. (1) Not later than six years before the expiration of
any state or federal hydroelectric license or state authorized
water right issued to a federally licensed project, the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + } shall notify the holder of the date of
expiration of the right or license and shall ask that the holder
advise the department whether the holder intends to seek
reauthorization or relicensing.
(2) If the holder does not intend to seek reauthorization, the
holder shall inform the department within 90 days after receiving
notice under subsection (1) of this section of the proposed
disposition of the federally licensed project.
(3) If the holder intends to seek reauthorization, the holder
shall inform the department within 90 days after receiving notice
under subsection (1) of this section whether the holder intends
to seek reauthorization of the water right concurrently with the
federal relicensing.
(4) A holder seeking relicensing and reauthorization
concurrently:
(a) Shall not, by applying for reauthorization, under ORS
543A.075 and in the absence of agreement by the holder, be deemed
to have accelerated the actual expiration date of the project's
water right; and
(b) May, upon providing concurrent notification to the Federal
Energy Regulatory Commission, withdraw and void its application
for reauthorization at any time prior to issuance of the final
water right certificate issued by the { - Water Resources
Director - } { + Director of the Oregon Department of Natural
Resources + } without prejudice to its right to reapply for
reauthorization of its water right.
(5) Any water right issued by the { - Water Resources - }
department pursuant to an application filed under this chapter
shall become effective upon the issuance of the new water right.
The existing water right shall be canceled immediately upon
issuance of the new water right.
(6) A holder not electing to concurrently seek reauthorization
but seeking relicensing shall notify the { - Water
Resources - } department of its position and shall indicate in
the notification its plans for the project and the project's
state water right.
(7) In the absence of agreement by the holder to pay the
application fees under ORS 543A.405, and notwithstanding the
provisions of ORS 543A.015, the state is not required to develop
and provide a coordinated state position.
SECTION 1684. ORS 543A.075 is amended to read:
543A.075. (1) Each person operating an existing federally
licensed project and intending to apply for reauthorization shall
submit to the { - Water Resources Department - } { + Oregon
Department of Natural Resources + } a notice of intent to file an
application for reauthorization of the water right for the
project. If the person intends to seek reauthorization
concurrently with federal relicensing, the notice of intent shall
be submitted at the same time the person provides the information
to the department under ORS 543A.071 (3). The notice of intent
shall include:
(a) The name and post-office address of the applicant;
(b) The federal project number;
(c) The expiration date of the federal license and state water
right for the project;
(d) An unequivocal statement of the applicant's intention to
file an application for reauthorization of the state water right;
(e) The location of the project by county and stream and, when
appropriate, by city or nearby city;
(f) The amount of water in cubic feet per second; and
(g) The project capacity.
(2) Upon receipt of a notice of intent under subsection (1) of
this section, the department shall:
(a) Convene the Hydroelectric Application Review Team for the
project. The team shall consist of representatives { - of the
Water Resources Department, the Department of Environmental
Quality and the State Department of Fish and Wildlife - }
{ + from the department who are knowledgeable about the water
and fish and wildlife resources of this state and from the
Department of Environmental Quality + } and may include a
representative of any other agency that has regulatory or
advisory responsibility for the project or a resource or hazard
affected by the project.
(b) Provide public notice of the receipt of the notice of
intent. The public notice shall provide the date of the public
scoping meeting to be conducted under ORS 543A.085 and include a
description of the hydroelectric project, the location of the
project, the expiration dates of the water right for the project
and the Federal Energy Regulatory Commission license for the
project, and information pertaining to how an interested person
may obtain future notices about the application and participate
in the reauthorization process.
(3) Any person who is authorized by the Federal Energy
Regulatory Commission to apply for a license for a federally
licensed project may apply to reauthorize a water right for the
project. The team shall process such applications under the
standards and process set forth in ORS 543A.060 to 543A.300 for a
federally licensed project. A nonowner applicant may obtain a
water right with the priority date of the expiring water right
only if the applicant submits a notice of intent within six
months after the owner submits a preliminary application as
described in ORS 543A.080, or within 30 days after June 30, 1997,
whichever is later.
SECTION 1685. ORS 543A.080 is amended to read:
543A.080. Within 30 days after an applicant provides a notice
of intent under ORS 543A.075, the applicant shall provide to the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + } a preliminary application, which shall be
the first-stage consultation document of the Federal Energy
Regulatory Commission. The preliminary application shall include
the following information:
(1) Detailed maps showing existing project boundaries, if any,
proper land descriptions of the entire project area by township,
range and section, and also showing the specific location of all
existing and proposed project facilities, including but not
limited to roads, transmission lines and other appurtenant
facilities;
(2) A general engineering design of the existing project and
any proposed changes, with a description of any existing or
proposed diversion of a stream through a canal or a penstock;
(3) A summary of the existing operational mode of the project
and any proposed changes;
(4) Identification of the environment affected or to be
affected, the significant resources and hazards present and the
applicant's existing and proposed environmental protection,
mitigation and enhancement plans, to the extent known at that
time;
(5) Streamflow and water information;
(6) Detailed descriptions of any proposed studies and the
proposed methodologies to be employed; and
(7) Any other information required in the application form
provided by the department.
SECTION 1686. ORS 543A.095 is amended to read:
543A.095. (1) Not later than one year before the applicant
files a final application with the Federal Energy Regulatory
Commission to reauthorize the federal license for the
hydroelectric project, the applicant shall file with the
Hydroelectric Application Review Team:
(a) A draft application for a water right for the project,
which shall be the Federal Energy Regulatory Commission draft
application; and
(b) Information regarding potential water quality impacts of
the project.
(2) The applicant shall provide the team with copies of any
agency and public comment submitted to the applicant in the
Federal Energy Regulatory Commission proceedings or in the state
reauthorization proceedings.
(3) The applicant shall include with the application required
under subsection (1) of this section the final report on the
studies conducted pursuant to ORS 543A.085.
(4) Upon receipt of the draft application, the team shall
identify in writing to the applicant any informational and
analytical deficiencies. Subject to any identified deficiencies,
the team shall prepare a provisional state position on:
(a) Whether, and under what conditions, the { - Water
Resources Department - } { + Oregon Department of Natural
Resources + } should issue the water right;
(b) Whether the project would comply with ORS 468B.040 and
water quality standards adopted by the Environmental Quality
Commission, and what conditions might be appropriate under 33
U.S.C. 1341(d); and
(c) Recommendations to the Federal Energy Regulatory Commission
under 16 U.S.C. 803(j).
(5) Upon completion of the provisional state position, the team
shall give public notice of the availability of the provisional
state position. The notice shall allow 30 days for the public to
comment on the provisional state position.
(6) Based on comments received during the 30-day public comment
period allowed under subsection (5) of this section, the team may
revise the provisional state position. The team also shall
resolve any conflict between agencies about the provisional state
position.
(7) After considering agency and public comments, resolving
interagency conflicts and making any necessary revisions, but no
later than 160 days before the date by which the final
application must be filed with the Federal Energy Regulatory
Commission, the team shall provide the applicant with the
provisional unified position of the state. However, the
provisional unified position shall not constitute a final agency
determination or action under any authority.
SECTION 1687. ORS 543A.115 is amended to read:
543A.115. (1) Upon receipt of the Department of Environmental
Quality's water quality certification decision, the Hydroelectric
Application Review Team shall prepare a final unified state
position. The final unified state position shall take into
consideration public comments received, shall be consistent with
the Department of Environmental Quality's water quality
certification decision and shall incorporate conditions attached
to any certification by the Director of the Department of
Environmental Quality pursuant to 33 U.S.C. 1341(d). The final
unified state position also shall include recommendations under
16 U.S.C. 803(j), any other conditions recommended for inclusion
in the federal license for the project and any additional
information requests to be addressed in the federal proceeding.
The team also shall prepare a proposed final order on
reauthorization of a water right for the project.
(2) The team shall provide the final unified state position to
the applicant and to the Federal Energy Regulatory Commission.
The team shall submit the proposed final order on reauthorization
of the water right to the { - Water Resources Department - }
{ + Oregon Department of Natural Resources + }. Upon receipt of
the proposed final order, the department shall complete
processing of the application for reauthorization of the water
right in accordance with the provisions of ORS 543A.120 to
543A.300.
(3) The team may submit to the Federal Energy Regulatory
Commission and the applicant any proposed final unified state
position, comments, recommendations, conditions or additional
information requests, coordinated in accordance with this
chapter, at any time necessary to satisfy a deadline established
by the Federal Energy Regulatory Commission for such submission,
even if the procedures set forth in this section for the
development of a final unified state position have not been
completed.
SECTION 1688. ORS 543A.120 is amended to read:
543A.120. (1) A proposed final order prepared by a
Hydroelectric Application Review Team and submitted to the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + } under ORS 543A.040, 543A.055 or 543A.105
shall be based on the application of the standards set forth in
ORS 543A.025 and shall reflect the complete review of the water
right application for compliance with applicable statutes and
rules.
(2) The proposed final order shall cite findings of fact and
conclusions of law and shall include but need not be limited to:
(a) Confirmation or modification of the preliminary
determinations made in the initial review;
(b) A brief statement that explains the criteria considered
relevant to the decision, including the applicable basin program,
the compatibility of the proposed use with applicable land use
plans and information set forth in the application report or
final report on studies;
(c) An assessment of water availability and the amount of water
necessary for the proposed use;
(d) An assessment of whether the proposed use would result in
injury to existing water rights;
(e) An assessment of whether the proposed use would impair or
be detrimental to the public interest as provided in ORS
543A.025;
(f) A draft certificate, including any proposed conditions, or
a recommendation to deny the application; and
(g) The date by which protests to the proposed final order must
be received by the department.
(3) The department shall mail copies of the proposed final
order, as submitted by the team, to the applicant and to persons
who have requested copies and paid the fee required under ORS
536.050 (1)(p). The department also shall give public notice of
the proposed final order in the weekly notice published by the
department.
(4) Any person may request standing for purposes of
participating in any contested case proceeding on the proposed
final order or for judicial review of a final order. A request
for standing shall be in writing and shall be accompanied by the
fee established under ORS 536.050 (1)(n).
(5) Any person may submit a protest against a proposed final
order. A protest shall be in writing and shall include:
(a) The name, address and telephone number of the protestant;
(b) A description of the protestant's interest in the proposed
final order and, if the protestant claims to represent the public
interest, a precise statement of the public interest represented;
(c) A detailed description of how the action proposed in the
proposed final order would impair or be detrimental to the
protestant's interest;
(d) A detailed description of how the proposed final order is
in error or deficient and how to correct the alleged error or
deficiency;
(e) Any citation of legal authority supporting the protest, if
known; and
(f) For persons other than the applicant, the protest fee
required under ORS 536.050 (1)(j).
(6) Requests for standing and protests on the proposed final
order shall be submitted within 45 days after publication of the
notice of the proposed final order in the weekly notice published
by the department. Any person who asks to receive a copy of the
department's final order shall submit to the department the fee
required under ORS 536.050 (1)(p), unless the person has
previously requested copies and paid the required fee.
(7) The Hydroelectric Application Review Team shall review any
protest received and provide to the { - Water Resources
Director - } { + Director of the Oregon Department of Natural
Resources + } a recommended response to any protest received.
(8) Within 120 days after the close of the period for receiving
protests and after consultation with the Hydroelectric
Application Review Team, the director shall:
(a) Issue a final order as provided under ORS 543A.130; or
(b) Schedule a contested case hearing if a protest has been
submitted and if:
(A) Upon review of the issues, the director finds that there
are significant disputes related to the proposed reauthorization
of the project; or
(B) Within 30 days after the close of the period for submitting
protests, the applicant requests a contested case hearing.
(9) At the request of the applicant, the department may extend
the time periods set forth in subsection (8) of this section for
a reasonable period of time.
(10) If the application is for reauthorization of a water right
for a federally licensed project, the department may postpone the
issuance of the final order until the Federal Energy Regulatory
Commission license is issued.
SECTION 1689. ORS 543A.125 is amended to read:
543A.125. (1) Subject to the provisions of subsection (2) of
this section and ORS 543A.130 and 543A.140, the { - Water
Resources Department - } { + Oregon Department of Natural
Resources + } shall approve all applications for reauthorization
of a water right for the use of water for hydroelectric purposes
made in proper form, unless the proposed reauthorization
conflicts with existing rights.
(2) The department shall reject any application for a permit to
appropriate water to develop hydroelectric power if the
department finds that the proposed project does not comply with
the standards set forth in ORS 543A.025 or rules adopted by the
{ - Water Resources Commission - } { + Oregon Natural
Resources Commission + } under ORS 543A.025.
SECTION 1690. ORS 543A.130 is amended to read:
543A.130. (1) If a contested case hearing is conducted under
ORS 543A.120, the issues to be considered in the contested case
hearing shall be limited to issues identified by the
administrative law judge.
(2) Notwithstanding the provisions of ORS chapter 183
pertaining to contested case proceedings, the parties to any
contested case hearing initiated under this section shall be
limited to:
(a) The applicant;
(b) Any person who timely filed a protest; and
(c) Any person who timely filed a request for standing under
ORS 543A.120 and who requests to intervene in the contested case
hearing prior to the start of the proceeding.
(3) The contested case proceeding shall be conducted in
accordance with the applicable provisions of ORS chapter 183
except:
(a) As provided in subsections (1) and (2) of this section; and
(b) An interlocutory appeal under ORS 183.480 (3) shall not be
allowed.
(4) Each person submitting a protest or a request for standing
shall raise all reasonably ascertainable issues and submit all
reasonably available arguments supporting the person's position
by the close of the protest period. Failure to raise a reasonably
ascertainable issue in a protest or in a hearing or failure to
provide sufficient specificity to afford the { - Water
Resources Department - } { + Oregon Department of Natural
Resources + } an opportunity to respond to the issue precludes
judicial review based on that issue.
(5) If, after the contested case hearing or, if a hearing is
not held, after the close of the period allowed to file a
protest, the { - Water Resources Director - } { + Director of
the Oregon Department of Natural Resources + } determines that
the proposed reauthorization does not comply with the standards
set forth in ORS 543A.025 or rules adopted by the { - Water
Resources Commission - } { + Oregon Natural Resources
Commission + } under ORS 543A.025, the director shall issue a
final order rejecting the application or modifying the proposed
final order to conform to the public interest. If, after the
contested case hearing or, if a hearing is not held, after the
close of the period allowed to file a protest, the director
determines that the proposed reauthorization complies with ORS
543A.025, the director shall issue a final order approving the
application for reauthorization or otherwise modifying the
proposed final order. A final order may set forth any of the
provisions or restrictions to be included in the certificate
concerning the use, control and management of the water to be
appropriated for the project, including but not limited to a
specification of reservoir operation and minimum releases to
protect the public interest.
(6) If a contested case hearing is not held:
(a) Where the final order modifies the proposed final order,
the applicant may request and the department shall schedule a
contested case hearing as provided under subsection (3) of this
section by submitting the information required for a protest
under ORS 543A.120 within 14 days after the director issues the
final order. However, the issues on which a contested case
hearing may be requested and conducted under this paragraph shall
be limited to issues based on the modifications to the proposed
final order.
(b) Only the applicant or a protestant may appeal the
provisions of the final order in the manner established in ORS
chapter 183 for appeal of orders other than contested cases.
(7) Before issuing a final order, the director or the
{ + Oregon Natural Resources + } Commission, if applicable,
shall make the final determination of whether the proposed
reauthorization or the proposed reauthorization as modified in
the proposed final order complies with the standards set forth in
ORS 543A.025.
(8) In a proceeding to reauthorize a water right for a
federally licensed project, the final order may be different from
the proposed final order based on:
(a) New information developed during the federal relicensing
process pertaining to environmental impacts or assessments that
reveals impacts not known at the time the proposed final order
was issued;
(b) Significant changes in the final application to the Federal
Energy Regulatory Commission;
(c) Conditions and restrictions in the Federal Energy
Regulatory Commission license that are inconsistent with the
water right as proposed in the proposed final order; or
(d) Protests received after the proposed final order is issued.
(9) Upon issuing a final order, the director shall notify the
applicant and each person who submitted written comments or
protests or otherwise requested notice of the final order and
send a copy of the final order to any person who requested a copy
and paid the fee required under ORS 536.050 (1)(p).
SECTION 1691. ORS 543A.135 is amended to read:
543A.135. (1) Within 20 days after the { - Water Resources
Director - } { + Director of the Oregon Department of Natural
Resources + } issues a final order under ORS 543A.130 after the
conclusion of a contested case hearing, any party may file
exceptions to the order with the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + }.
(2) The commission shall issue a modified order, if the
exceptions are allowed, or deny the exceptions within 60 days
after the close of the exception period under subsection (1) of
this section.
SECTION 1692. ORS 543A.140 is amended to read:
543A.140. (1) The { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } may issue a water
right to any applicant for reauthorization of a federally
licensed project whose proposed water use complies with the
standards set forth in ORS 543A.025. Every water right for a
federally licensed project shall provide as a condition that the
water right holder may not operate the federally licensed project
unless the water right holder is authorized to operate the
project by the Federal Energy Regulatory Commission.
(2) The department may approve an application for
reauthorization for less water than applied for, or upon terms,
limitations and conditions necessary for the protection of the
public interest.
SECTION 1693. ORS 543A.145 is amended to read:
543A.145. Any water right for the use of water for
hydroelectric purposes shall:
(1) Except as provided in ORS 543A.065 (2), be for a period of
not more than 50 years;
(2) If for a federally licensed project, be for the period
established in the new Federal Energy Regulatory Commission
license;
(3) For the quantity of water authorized for use under the
expiring water right for the project, retain the same priority
date as the expiring water right for the project. For enlargement
of the water right beyond the amount of water authorized in the
expiring water right, the priority date for the additional amount
shall be the date of filing a reauthorization application under
ORS 543A.035, or a notice of intent under ORS 543A.075, whichever
is applicable;
(4) If for a federally licensed project, include a provision
allowing the { - Water Resources Department - } { + Oregon
Department of Natural Resources + } to amend conditions or
limitations on the water right after the Federal Energy
Regulatory Commission issues the federal license for the project;
and
(5) Include conditions allowing the department to reopen the
certificate on a clear showing of a significant threat to the
public health or safety or the environment that was not
identified and addressed during the most recent project
authorization proceeding, and that requires modification of the
certificate.
SECTION 1694. ORS 543A.150 is amended to read:
543A.150. (1) The { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } may extend the
time limits set forth in ORS 543A.005 to 543A.145 and 543A.300
for a reasonable period of time if the time limits are
incompatible with the substantive requirements applicable to
applications to reauthorize a water right for the use of water
for hydroelectric purposes.
(2) The expiration date of the water right for any project that
begins the reauthorization process under ORS 543A.005 to 543A.415
before the expiration date shall be extended by the department if
necessary to allow for completion of the reauthorization process.
SECTION 1695. ORS 543A.300 is amended to read:
543A.300. (1) If any person operating a hydroelectric project
fails to advise the { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } within 60 days of
the time established in ORS 543A.030 or 543A.075, the { - Water
Resources Commission - } { + Oregon Natural Resources
Commission + } may order the decommissioning of the project.
(2) The { - Water Resources - } commission shall adopt by
rule procedures for ordering a decommissioning of a project and
standards for conducting a decommissioning in a manner that
ensures the protection of the public health and safety and the
environment. The rules shall include a provision for establishing
a Hydroelectric Application Review Team for the project to
coordinate the activities of all state agencies involved in the
decommissioning process.
SECTION 1696. ORS 543A.305 is amended to read:
543A.305. (1) As used in this section:
(a) 'Holder' has the meaning given that term in ORS 543.075.
(b) 'In-stream water right' has the meaning given that term in
ORS 537.332.
(c) 'Reauthorize' has the meaning given that term in ORS
543.075.
(2) An in-stream water right shall be subject to the
limitations of ORS 537.350 and shall be maintained in perpetuity,
in trust for the people of the State of Oregon. The priority date
of the in-stream water right shall be the same as that of the
converted hydroelectric water right. The location of the
in-stream water right shall be the same as the point of diversion
identified in the hydroelectric water right.
(3) Five years after the use of water under a hydroelectric
water right ceases, or upon expiration of a hydroelectric water
right not otherwise extended or reauthorized, or at any time
earlier with the written consent of the holder of the
hydroelectric water right, up to the full amount of the water
right associated with the hydroelectric project shall be
converted to an in-stream water right, upon a finding by the
{ - Water Resources Director - } { + Director of the Oregon
Department of Natural Resources + } that the conversion will not
result in injury to other existing water rights. In making the
evaluation, the director shall consider the actual use of the
hydroelectric project and the resulting impacts on actual use by
other existing water rights as of October 23, 1999. The director
may include mitigation measures as conditions of the in-stream
water right to avoid injury and to ensure the continuation of
authorized water uses by other existing water rights.
(4) If the hydroelectric project is authorized by a pre-1909
unadjudicated claim of registration, the determination of injury
shall be based upon an evaluation of the actual use as measured
during the five years preceding the conversion action, and shall
not constitute a determination under ORS 537.670 to 537.695 as to
the underlying claim of registration of the pre-1909 use.
Judicial review of a final order relating to such a conversion
shall be limited to review of the conversion action.
(5) This section shall not apply to projects on boundary waters
that operate with water rights issued by the State of Oregon and
by any other state except upon the written request of the water
right holder.
(6) If hydroelectric production is not the sole beneficial use
authorized by a water right, this section shall apply only to
conversion of that portion of the water right used exclusively
for hydroelectric purposes.
(7) This section shall not apply if the holder, at any time
prior to conversion under subsection (3) of this section,
transfers the hydroelectric water right under ORS 540.520 and
540.530, except that if a time-limited hydroelectric water right
is transferred under ORS 540.520 and 540.530, the provisions of
this section shall apply at the time of expiration of the
time-limited water right.
SECTION 1697. ORS 543A.400 is amended to read:
543A.400. (1) The duties of a Hydroelectric Application Review
Team shall be determined on the basis of the operating authority
of the project that the team is responsible for reviewing.
(2) A team responsible for reviewing a state project shall:
(a) Make an initial determination of whether the state project
may proceed under an expedited reauthorization process under ORS
543A.040 and, if so, develop a proposed final order under ORS
543A.040.
(b) If a state project does not qualify for the expedited
process under ORS 543A.040:
(A) Convene a public scoping meeting under ORS 543A.045;
(B) Review the application report and prepare a draft proposed
final order under ORS 543A.055;
(C) Revise the draft proposed final order and submit the
proposed final order to the { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } for further
processing as set forth in ORS 543A.120 to 543A.300; and
(D) Review protests received and recommended responses to the
protests as required under ORS 543A.120.
(3) A team responsible for reviewing a federally licensed
project shall:
(a) Represent the state in any federal proceeding to
reauthorize the federal license for the project;
(b) Participate in the state process in accordance with ORS
543A.085, 543A.090, 543A.105, 543A.110 and 543A.115;
(c) Recommend a state response to a request for certification
for reauthorization of a federally licensed project under ORS
468B.040; and
(d) Develop a state position as required under 16 U.S.C.
803(j).
(4) The { - Water Resources - } department may also convene
a team to:
(a) Coordinate the activities of all state agencies involved in
decommissioning a project.
(b) Develop a unified state position for a project that is
subject to federal relicensing but that operates under a water
right that does not expire. The unified state position developed
under this paragraph shall include the elements set forth in ORS
543A.105 except for the reauthorization of the state water right.
In developing the unified state position under this paragraph the
team shall participate to the fullest extent possible in all
proceedings conducted pursuant to the Federal Energy Regulatory
Commission relicensing process for the project.
SECTION 1698. ORS 543A.405 is amended to read:
543A.405. (1) Subject to the provisions of ORS 543A.410, any
person submitting a notice of intent to seek reauthorization, a
preliminary application or an application for reauthorization of
a project under ORS 543A.030, 543A.035, 543A.075, 543A.080 or
543A.095 shall pay all expenses related to the review and
decision of the Hydroelectric Application Review Team that are
incurred by the team and any agency participating as part of the
team, and that are not otherwise covered by the reauthorization
fee paid under ORS 543A.415.
(2) Every person submitting a notice of intent to seek
reauthorization of a project shall submit the fee required under
ORS 536.050 (1)(r) to the { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } when the notice
of intent is submitted.
(3) Before submitting an application to reauthorize a state
project under ORS 543A.035, the applicant shall request from the
team an estimate of the costs expected to be incurred in
processing the application. The team shall inform the applicant
of that amount and require the applicant to make periodic
payments of such costs pursuant to a cost reimbursement
agreement. The cost reimbursement agreement shall provide for
payment of 25 percent of the estimated costs when the applicant
submits an application under ORS 543A.035.
(4) Before the close of public comment on study proposals
developed by the applicant for a federally licensed project under
ORS 543A.085, the team shall estimate the costs expected to be
incurred in evaluating the project. The team shall inform the
applicant of that amount and require the applicant to make
periodic payments of such costs pursuant to a cost reimbursement
agreement. The cost reimbursement agreement shall provide for a
first payment of 25 percent of the estimated costs on a schedule
established in the agreement.
(5) If costs of the team's evaluation of a project exceed the
estimate in the cost reimbursement agreement, the applicant shall
pay any excess costs shown in an itemized statement prepared by
the team. In no event shall the team and its participating
agencies incur evaluation expenses in excess of 110 percent of
the fee initially estimated unless the team provided prior
notification to the applicant and a detailed projected budget the
team believes is necessary to complete evaluation of the
application. If costs are less than the fee paid, the team shall
refund the excess to the applicant.
(6) The { - Water Resources - } department shall reimburse
participating agencies for costs incurred in their review of a
project. Such costs shall not include expenses of other state
agencies for which a fee is otherwise collected under state law.
SECTION 1699. ORS 543A.410 is amended to read:
543A.410. (1) All expenses incurred by the Hydroelectric
Application Review Team and its participating agencies that are
charged to or allocated to the fee paid by an applicant shall be
necessary, just and reasonable. Upon request, the team shall
provide the applicant with a detailed justification for all
charges. Not later than January 1 of each year, the { - Water
Resources Director - } { + Director of the Oregon Department of
Natural Resources + } by order shall establish a schedule of fees
that those persons submitting a notice of intent must submit
under ORS 543A.030 or 543A.075. The fee schedule shall be
designed to recover the actual costs of evaluating the notice of
intent. Fees shall be based on actual, historical costs incurred
by the team and its participating agencies to the extent
historical costs are available. The fees established by the
schedule shall reflect the size and complexity of the project for
which a notice of intent is submitted.
(2) If a dispute arises regarding the necessity or
reasonableness of expenses charged to or allocated to the fee
paid by an applicant, and if the dispute is not resolved by the
directors of the affected agencies, the applicant may seek
judicial review in circuit court of the amount of expenses
charged or allocated as provided in ORS 183.480, 183.484, 183.490
and 183.500. If the applicant establishes that any of the charges
or allocations are unnecessary or unreasonable, the amount found
to be unnecessary or unreasonable shall be refunded to the
applicant. The applicant shall not waive the right to judicial
review by paying the portion of the fee or expense in dispute.
SECTION 1700. ORS 543A.415 is amended to read:
543A.415. (1) Except as provided in subsection (2) of this
section, each holder of an existing hydroelectric license shall
pay to the { - Water Resources Department - } { + Oregon
Department of Natural Resources + } annually a reauthorization
fee in an amount per theoretical horsepower covered by the
existing license that, when added to the amount per theoretical
horsepower covered by the existing license that is paid under ORS
543.300, equals 28 cents for each horsepower covered by the
existing license, or $15, whichever is greater, for the purpose
of implementing the state reauthorization process established by
this chapter and ORS 468.065, 468B.040, 468B.045, 468B.046,
536.015, 536.050, 543.012 and 543.710. The reauthorization fee
shall be paid until the project is reauthorized, and a water
right issued, under this chapter and ORS 468.065, 468B.040,
468B.045, 468B.046, 536.015, 536.050, 543.012 and 543.710. Upon
reauthorization and issuance of a water right, a new annual fee
shall be assessed under ORS 543.300, and the reauthorization fee
shall no longer apply.
(2) The department shall notify existing license holders of the
amount of the fee described in subsection (1) of this section.
The notice shall state the date by which the license holder must
notify the department if the license holder does not intend to
reauthorize the project. The department shall assess the fee
described in subsection (1) of this section unless the license
holder notifies the state that it does not intend to apply to
reauthorize the project upon expiration of the license. The
holder of an existing hydroelectric license that notifies the
department that it does not intend to reauthorize the project
need not pay the reauthorization fee and may not seek
reauthorization of the project upon expiration of the existing
license.
(3) The department shall submit a report to the Legislative
Assembly during each legislative session describing the
department's use of reauthorization funds.
(4) Four cents of each 28 cents paid as a reauthorization fee
as required by subsection (1) of this section shall be deposited
{ - to the Water Resources Department Hydroelectric Fund and
disbursed to the Department of Environmental Quality. - }
{ + in the Oregon Natural Resources Fund. Moneys deposited in
the fund under this subsection are continuously appropriated to
the department for purposes described in ORS 536.015. + }
SECTION 1701. ORS 545.643 is amended to read:
545.643. An irrigation district desiring to become a party to
any contract providing a plan for the liquidation in any manner
of all or part of its outstanding bonded or other indebtedness,
whether then due or not due, may adopt the procedure provided by
ORS 545.643 to 545.667. The procedure provided by ORS 545.643 to
545.667 is in lieu of other procedures provided by law. Before
becoming a party to a contract under ORS 545.643 to 545.667, the
board of directors shall adopt a resolution substantially
describing all the terms and conditions of the proposed contract
and requesting the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } to make an
investigation of all matters relating to the district, with
particular reference to the ability of the district or the
landowners in the district to perform the obligations of the
proposed contract. Upon receipt of a copy of the resolution, the
{ - Water Resources - } commission shall conduct the
investigation, which shall include all physical, economic and
financial matters relating to the district and the irrigable
acreage of each legal subdivision or other described tract of
land if held in separate ownership. If, after the investigation,
the
{ - Water Resources - } commission determines that the
contract may prudently be executed by the district, the
{ - Water Resources - } commission shall advise the district of
its determination by adopting a resolution of the commission to
that effect.
SECTION 1702. ORS 548.940 is amended to read:
548.940. (1) Jurisdiction of all interested parties may be had
by the publication of summons in the manner provided by ORCP 7.
Copies of the summons and the petition of the district shall be
mailed to each qualified elector and landowner at the mailing
address as shown by the records of the county clerk, the county
tax collector and the county assessor, and to all known creditors
of the district.
(2) The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } shall be served with a copy of
the summons and petition.
SECTION 1703. ORS 548.955 is amended to read:
548.955. The judgment of the court shall order the clerk of the
court to file certified copies of the judgment with the county
treasurer and the county assessor of each county in which any
property located within or assessed by the district is located,
and with the Secretary of State and the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + }.
SECTION 1704. ORS 549.605 is amended to read:
549.605. As used in ORS 549.605 to 549.645, unless the context
requires otherwise:
{ - (1) 'Commission' means the Water Resources
Commission. - }
{ - (2) - } { + (1) + } 'Federal flood control projects'
includes all authorized federal projects located wholly or
partially within this state which the { + Oregon Natural
Resources + } 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.
SECTION 1705. ORS 549.610 is amended to read:
549.610. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } is directed to carry out, for
and on behalf of the state, the state'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.
SECTION 1706. ORS 549.615 is amended to read:
549.615. The { - Water Resources Commission - } { + Oregon
Natural 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.
SECTION 1707. ORS 549.620 is amended to read:
549.620. The { - Water Resources Commission - } { + Oregon
Natural 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.
SECTION 1708. ORS 549.625 is amended to read:
549.625. As to any property acquired pursuant to ORS 549.605 to
549.645, the { - Water Resources Commission - } { + Oregon
Natural 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.
SECTION 1709. ORS 549.630 is amended to read:
549.630. 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 - } { + Oregon Natural
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.
SECTION 1710. ORS 549.635 is amended to read:
549.635. The { - Water Resources Commission - } { + Oregon
Natural 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.
SECTION 1711. ORS 549.640 is amended to read:
549.640. Except as provided in ORS 536.500, all moneys received
by the { - Water Resources Commission - } { + Oregon Natural
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.
SECTION 1712. ORS 549.645 is amended to read:
549.645. 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 - } { + Oregon Natural
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.
SECTION 1713. ORS 552.403 is amended to read:
552.403. (1) A district shall, within a reasonable time after
formation, prepare broad, general plans of watershed improvement.
The plan may be prepared in cooperation with the { - Water
Resources Commission - } { + Oregon Natural Resources
Commission + } and shall conform to the state water resources
policy declared by ORS 536.220.
(2) The plan also shall show existing and proposed works of the
district and of other public and private agencies relating to
water use and control. It shall demonstrate a basis for the
coordination and planning of future works of the district,
governmental agencies and private interests to assure the maximum
beneficial use and conservation of the water resources of the
district. The projects and improvement plans shall be based on
the inventory of water, needs of the district related to natural
resources, and plans and programs, if any, developed by the
{ - Water Resources - } commission. The district may have
access to all information, statistics, plans and data in the
possession of or available to any state agency or public
corporation which is pertinent to the preparation of the plan and
may reimburse the agency or corporation for any expense incurred
in cooperating with the board.
(3) After approval by the district board, the plan of the
district including the plan for financing any existing or
proposed works may be submitted to the { - Water Resources - }
commission for recommendations.
(4) The district board shall make revisions found necessary for
the proper control, utilization, conservation, development and
improvement of the water resources of the district, and for the
protection and enhancement of the quality of such water
resources.
SECTION 1714. ORS 555.020 is amended to read:
555.020. The selection, management, and disposal of the land
referred to in ORS 555.010 shall be vested in the { - Water
Resources Commission - } { + Oregon Natural Resources
Commission + }. The commission may employ necessary assistance,
purchase material and supplies, and shall have charge and control
of all reclamation work undertaken, contracted for, or initiated
by the State Land Board prior to the passage of chapter 226,
Oregon Laws 1909, or by the Desert Land Board prior to the
passage of chapter 434, Oregon Laws 1927, and of the reclamation
companies which were operating under either of those boards.
SECTION 1715. ORS 555.030 is amended to read:
555.030. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + }, or some authorized assistant,
shall:
(1) Have custody of all the records and files under the
provisions of ORS 555.010 to 555.160, which shall be public
records and open to inspection by the public during office hours.
(2) Receive and file all proposals for construction of
irrigation works to reclaim lands selected under the provisions
of ORS 555.010 to 555.160.
(3) Keep for public inspection maps or plats of all land
selected.
(4) Receive entries of settlers on these lands.
(5) Do any and all work necessary in carrying out the
provisions of ORS 555.010 to 555.160.
SECTION 1716. ORS 555.040 is amended to read:
555.040. Upon application, made as provided in ORS 555.050, by
any person desiring to reclaim any of the desert government lands
in this state, the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } shall make proper
application for the lands which the applicant undertakes to
reclaim, and make and enter into contract or agreement with the
Secretary of the Interior for the donation and patent to the
state, free of cost for survey or price, of such desert lands.
The commission may make and enter into such contracts and
agreements, and create and assume such obligations in relation to
and concerning the lands, as may be necessary to induce and cause
such reclamation thereof as is required by the contract with the
Secretary of the Interior and the Acts of Congress. The
commission may create a lien which shall be valid on and against
the separate legal subdivisions of land reclaimed, for the
necessary expenses of reclamation, and reasonable interest
thereon from the date of reclamation until the lien is satisfied;
provided that in no event, in no contingency, and under no
circumstances, shall the state be in any manner directly or
indirectly liable for any amount of any such lien or liability,
in whole or in part.
SECTION 1717. ORS 555.050 is amended to read:
555.050. (1) Any person desiring to construct ditches, canals
or other irrigation works to reclaim land under the provisions of
ORS 555.010 to 555.160 shall, at the expense of the person, file
with the { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } an application for selection on
behalf of the state, by the commission, of the land to be
reclaimed. The application shall conform to all requirements of
the federal laws and rulings thereunder, and be accompanied by
the necessary land office fees and such additional data as may be
prescribed by the commission, including a preliminary estimate of
costs and the amount of lien asked for. If the application is
made in proper form, and it appears that the proposed plan is
feasible, that the applicant is financially able to complete the
work, and that its completion will be to the best interests of
the state, then the commission, at the expense and cost of the
applicant, shall make proper application for the selection and
withdrawal of the lands included in the application.
(2) The commission may do all things necessary to secure the
withdrawal of lands on behalf of the commission by the Secretary
of the Interior, and let a contract to the lowest responsible
bidder for the reclamation and colonization of the same when
withdrawn.
SECTION 1718. ORS 555.060 is amended to read:
555.060. A deposit shall accompany each application in a sum
not less than 10 cents per acre up to 1,000 acres, and two cents
per acre for each acre over that amount, which sum shall be
deposited with the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } and held in trust as
a guarantee of good faith on the part of the applicant, to whom
it shall be returned at the time of execution of a contract
between the state and the applicant. In case the person making
the application shall, upon segregation by the Secretary of the
Interior of any or all of the lands mentioned therein, refuse to
enter into a contract with the state, the deposit shall be
forfeited to the state and credited to the Oregon Irrigation
Fund.
SECTION 1719. ORS 555.070 is amended to read:
555.070. Upon withdrawal of the land by the Department of the
Interior, the { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } shall enter into a contract for
the reclamation of such land with the person submitting the
application, which contract shall contain plans and
specifications of the proposed irrigation works; provided, that
no contract shall be executed by the commission until after an
examination by the commission concerning the feasibility of the
proposed plan of reclamation, sufficiency and availability of the
water supply, and reasonableness of the estimate of cost and the
lien requested. The contract shall provide for the sale of the
water right to settlers on the land in satisfaction of the
reclamation lien allowed. This contract shall not be entered into
on the part of the state until the withdrawal of the lands by the
Department of the Interior and the filing of a satisfactory bond
on the part of the proposed contractor, which bond shall be in a
penal sum not less than two percent of the lien to be allowed,
and shall be conditioned upon the faithful performance of the
provisions of the contract with the state; provided, that in case
the contractor is the irrigation district such bond need not be
filed. The commission may, however, require the contractor to
make a deposit at the time of application for entry of land by
settlers to insure the transfer of the system in good condition
and repair to the purchasers of water rights as herein provided,
which deposit shall be returned by the commission at the time of
such transfer.
SECTION 1720. ORS 555.090 is amended to read:
555.090. No contract shall be made by the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + }
which requires a greater time than five years for construction of
the works. All contracts shall state that the work shall begin
within six months from date of contract; that the contractor
shall secure for the use and benefit of the reclamation system
all necessary water rights, rights of way, reservoir sites, or
other property necessary for its construction and operation; that
construction shall be prosecuted diligently and continuously to
completion; and that a cessation of work under the contract with
the state for a period of six months, without the sanction of the
commission, will forfeit to the state all rights under the
contract. The commission may extend the time in which to begin
the construction of works, or for the completion of work, on
account of delay caused by physical or engineering difficulties
beyond the power of the contractor to control.
SECTION 1721. ORS 555.100 is amended to read:
555.100. (1) Upon the failure of any parties having contracts
with the state for the construction of irrigation works, to begin
the same within the time specified by the contract, or to
complete the same within the time or in accordance with the
specifications of the contract with the state, to the
satisfaction of the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + }, the commission
shall give the parties written notice of such failure. If after
a period of 60 days from the sending of such notice they have
failed to proceed with the work or to conform to the
specifications of their contract with the state, or secure an
extension of time, their contract and all works constructed
thereunder shall be at once forfeited to the state.
(2) In case of any forfeiture, cancellation, or relinquishment
of any contract to the state, the commission shall so declare and
give notice once each week, for four weeks, in some newspaper of
general circulation in the county in which the work is situated,
and in one newspaper at the state capital in like manner and for
a like period, of the forfeiture, cancellation, or relinquishment
of the contract, and that upon a fixed day proposals will be
received at the office of the commission for purchase of the
incompleted works and for completion of the irrigation works in
accordance with plans, specifications and other conditions
prescribed by the commission, the time for receiving bids to be
at least 60 days subsequent to the issuing of the last notice of
forfeiture. The money received by the commission from sale of the
partially completed works under the provisions of this section
shall first be applied to the expenses incurred by the state in
their forfeiture and disposal, and the surplus, if any exists,
shall be paid to the original contractors with the state.
SECTION 1722. ORS 555.110 is amended to read:
555.110. Nothing in ORS 555.010 to 555.160 shall be construed
as authorizing the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } to obligate the
state to pay for any work constructed under any contract, or to
hold the state in any way responsible to settlers for the failure
of contractors to complete the work according to the terms of
their contracts with the state.
SECTION 1723. ORS 555.120 is amended to read:
555.120. No land shall be open to entry and no water rights
shall be sold by the parties under contract with the { - Water
Resources Commission - } { + Oregon Natural Resources
Commission + } until the construction of the works is
sufficiently advanced to insure a water supply, and the entry of
an order by the commission opening the land or any portion
thereof to entry and sale. All applications to purchase lands, or
for release of lien for construction of the reclamation works,
shall be upon the forms provided by the commission. The 'date of
reclamation,' for the purposes of ORS 555.010 to 555.160, shall
be the date shown by the proof furnished the Secretary of the
Interior by the commission at which water was furnished available
for the reclamation of each tract in the list of lands.
SECTION 1724. ORS 555.130 is amended to read:
555.130. Any citizen of the United States, or any person having
declared an intention to become such, over the age of 21 years,
may make application, under oath, to the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + },
upon forms prescribed by the commission, to enter any of the
lands reclaimed under the provisions of ORS 555.010 to 555.160,
in an amount not to exceed 160 acres for any one person. Each
application shall be accompanied by a contract, made and entered
into by the applicant with the person who has undertaken the
reclamation of the tract in question, which contract shall show
that the applicant has made proper arrangement for purchase of
the necessary water rights and the release of the construction
lien. Each application to the commission shall in addition be
accompanied by a payment of not less than $1 per acre for each
acre included in the application, which payment shall be made by
the contractor out of the first payment by the applicant, and
shall be deposited by the commission with the State Treasurer,
who shall credit it to the Oregon Irrigation Fund. If the
application is not approved, the $1 payment shall be returned to
the contractor.
SECTION 1725. ORS 555.140 is amended to read:
555.140. Upon filing with the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + } a
satisfactory release of the construction lien apportioned by the
commission against the land in any application, accompanied by
satisfactory proof of reclamation, cultivation and settlement, as
required by the rules of the commission, it shall be the duty of
the commission to deed to the applicant, or the assignee of the
applicant, the land described in the application. The deeds shall
be in form of a quitclaim and shall operate to convey only such
title as the state may have in the land conveyed. The deeds,
without acknowledgment, or copies thereof duly certified and
attested under seal by the commission, certified from the
official copy in the keeping of the commission, shall be admitted
to record. The commission shall preserve, in a suitable book, a
true copy of the deeds, with an alphabetical index of the names
of the grantees, and such copies or certified copies thereof
certified and attested as aforesaid shall be primary evidence of
such conveyances.
SECTION 1726. ORS 555.150 is amended to read:
555.150. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } shall provide suitable rules for
the filing of applications for constructing irrigation works,
prescribing the nature of final surveys, and the gathering of
engineering data upon which the contract with the state is to be
based, the manner in which the plans and specifications shall be
submitted, and for the entry of and payment for the land and
water rights by settlers and for the settlement or forfeiting of
entry by settlers, and such other rules and regulations as are
necessary to carry out the provisions of ORS 555.010 to 555.160.
SECTION 1727. ORS 555.160 is amended to read:
555.160. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } shall issue, on or before
September 30 of the year preceding each regular session of the
legislature, a full report of the work of the commission under
the provisions of ORS 555.010 to 555.160, including a statement
of expenditures and condition of all funds, and such
recommendations for legislation as are deemed advisable.
SECTION 1728. ORS 555.180 is amended to read:
555.180. Wherever an irrigation system has been constructed
under contract with the State of Oregon pursuant to the Act of
Congress known as the Carey Act, and under and pursuant to ORS
555.010 to 555.160, and it develops that the acreage of land
actually irrigated in any smallest legal subdivision of the land
is greater than the acreage made subject to the lien in the
reclamation contract for said smallest legal subdivision and the
waters for the excess acres actually irrigated in such legal
subdivision over and above the amount fixed in the contract for
lien have not as yet been paid for, nor the amount to be paid
therefor agreed upon, the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } upon request of the
company supplying water to the excess acres shall notify the
person using the water upon the excess acres to pay for the same
or enter into an arrangement with the company furnishing the
water providing for the price to be paid therefor and the manner
of payment; provided, the company furnishing the water shall not
exact a price per acre for such excess acres greater than the
price per acre as now fixed by the commission.
SECTION 1729. ORS 555.190 is amended to read:
555.190. The notice given by the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + } shall
be in writing and may be served by registered mail or by
certified mail with return receipt. If the user of the water does
not comply with the notice and either pay for the excess water or
enter into a definite arrangement with the company for payment
thereof within 30 days from the mailing of the notice, the
commission shall, upon notice from the company furnishing the
water, cancel the right of the landowner to the excess acres and
thereafter, without further application for permission so to do,
the company furnishing the water may sell and deliver the water
to other lands. Upon effecting the sale of the water to other
lands the company shall notify the commission of the lands to
which the water is transferred.
SECTION 1730. ORS 555.310 is amended to read:
555.310. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } is authorized and empowered to
contract for the completion of the reclamation of lands in the
Tumalo Project or any part thereof, and to otherwise carry out
the provisions of ORS 555.310 to 555.410, with any irrigation
district, organized pursuant to the laws of Oregon, including
lands in the project or any part thereof, or with any other
irrigation district, or with the federal government, or with any
person.
SECTION 1731. ORS 555.320 is amended to read:
555.320. (1) The { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } shall appoint, at a
salary to be fixed by the commission, a project manager for the
Tumalo Project, who shall hold office and serve at the pleasure
of the commission, but not longer than two years without
reappointment. In the selection of a project manager, due
consideration shall be given the recommendations of the Board of
Directors of the Water Users' Association of the Tumalo Project,
which project was designated in chapter 119, Oregon Laws 1913, as
the Columbia Southern Irrigation Project. The project manager
shall have complete charge of the operation, maintenance and
management of all matters pertaining to the project, and shall
have authority to collect maintenance fees and issue receipts
therefor, to employ necessary assistants, purchase materials and
supplies, make proper and necessary repairs, renewals and
alterations in the irrigation system when required, necessary or
authorized by the commission, and to furnish inventories of
machinery, equipment and materials at stated intervals.
(2) All machinery, materials, supplies and land acquired by the
state under the provisions of chapter 119, Oregon Laws 1913, not
required in the future operation of the project, shall be sold by
the project manager under the direction of the commission, and
the funds arising therefrom shall be placed in the Tumalo Project
Fund. The project manager shall render a monthly report to the
commission covering the operation of the project and such other
matters as the commission may direct. The project manager shall
furnish a good and sufficient surety bond in the sum of $5,000
running to the State of Oregon, subject to the approval of the
Attorney General, and conditioned upon the faithful performance
of duties.
SECTION 1732. ORS 555.330 is amended to read:
555.330. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } shall make all necessary rules
and regulations for properly carrying out the provisions of ORS
555.310 to 555.410.
SECTION 1733. ORS 555.340 is amended to read:
555.340. (1) Subject to ORS 555.350, the prices to be paid for
the sale of water rights on private lands as well as Carey Act
lands, in the Tumalo Project, shall be $40, with interest at five
percent from the date of contract of sale, in addition to which
there shall be a charge of $2.50 per acre for the nonirrigable
Carey Act lands; provided, however, that no new lien shall be
placed upon any lands having a complete vested water right on
June 3, 1913. A certified copy of the lien list shall be prepared
by the { - Water Resources Commission - } { + Oregon Natural
Resources Commission + }, showing the price to be paid for water
rights for each small subdivision or farm unit of Carey Act land
in the project. A certified copy of the lien list shall be filed
in the records of Crook County. From and after the date of
reclamation of any tract designated in the list a valid lien in
favor of the State of Oregon shall exist against each tract in
the list for the amount designated therein until the same,
together with accruing interest, has been paid in full.
(2) The total amount to be realized from the sale of Carey Act
lands and water rights for private lands shall insure the return
to the state of all money expended by it in the reclamation of
the lands in the project with interest at five percent from the
date of the contract of sale, in addition to any further sums or
amounts which are found necessary to be paid on account of the
project.
(3) Any person who holds a contract with the Columbia Southern
Irrigation Company or its successors in interest, for any tract
in the project, may execute a new contract with the state for
reclamation, under the provisions of ORS 555.310 to 555.410, of
the land described in the original contract with the company, or
a new selection, receiving credit thereon for the principal paid
to the company under the original contract; or, may surrender the
contract and receive, in cash, the full amount of principal paid
to the company on the contract; provided, however, that no
contract holder shall be entitled to a refund of the money as
herein provided unless an assignment of all rights, title and
interest in and to the contract and the land described therein
was filed with the Desert Land Board on or before July 1, 1917;
provided, further, that refunds shall be made to contract holders
pro rata as funds may become available from time to time after
July 1, 1915. The failure to comply with the above option by any
contract holder under the old Columbia Southern Project shall
render the contract void and the lands embraced therein shall
revert to the state and be subject to reentry.
SECTION 1734. ORS 555.350 is amended to read:
555.350. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } may increase the reclamation
lien against the land not now sold in the Tumalo Project as fixed
in ORS 555.340, if such increase is necessary or expedient in the
completion of the project. The commission may reduce the amount
due the state on account of the construction of the Tumalo
Project by the amount expended by any such district or the
federal government in completing the reclamation of the lands
embraced within the project or any amount which may be expended
in discharging the obligations of the state incurred under and
pursuant to ORS 555.320, 555.340 and 555.380, or otherwise.
SECTION 1735. ORS 555.360 is amended to read:
555.360. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } shall make all necessary
arrangements to secure the settlement, cultivation and
reclamation of Carey Act lands in the Tumalo Project; accept
applications for the entry of the lands; make contracts for the
purchase of water rights and release of lien for the lands; make
rules for their cultivation and settlement; and prescribe the
forms to be used for such purposes. Each contract with purchasers
shall provide for payment of the full amount of lien assessed
against the tract covered by the contract within a period of not
to exceed 20 years, with interest on deferred payments at five
percent per annum, and shall also provide for payment of an
annual maintenance fee, to be fixed by the commission. Contracts
executed before May 27, 1913, may be brought under the terms of
ORS 555.310 to 555.410, and the rate of interest thereunder shall
be five percent from and after December 1, 1916. Contracts for
the sale of water rights to private lands within the project
shall be upon the same terms and conditions as for Carey Act
lands, and the commission shall in addition require the purchaser
to give a first mortgage on such private lands, to the state, as
security for the payments due under the contract. The contracts
with purchasers, both on Carey Act and private lands, shall
provide for the sale of a proportionate interest in the
reclamation system to each purchaser, and for transfer of the
reclamation system to the purchasers when the water rights for a
majority of the lands in the project have been fully paid for,
the state retaining an interest proportionate to the unpaid
balance on the contracts.
SECTION 1736. ORS 555.370 is amended to read:
555.370. Upon failure of any purchaser having a contract with
the { - Water Resources Commission - } { + Oregon Natural
Resources Commission + } to make payments of principal and
interest according to the terms of the contract, the commission
shall notify the purchaser by registered mail or by certified
mail with return receipt of the default. If the default continues
for a period of six months after the sending of such notice, the
commission may cancel the contract, and all payments made
thereunder shall be forfeited to the state and placed in the
irrigation fund. The commission may reopen the lands covered by
the canceled contract for entry, and resell water rights to the
land to some other purchaser. Nothing in this section, however,
shall be construed so as to prevent the commission from extending
the time to make any payment due under any contract with a
purchaser, when in the judgment of the commission the purchaser
is entitled to an extension.
SECTION 1737. ORS 555.390 is amended to read:
555.390. The { - Water Resources Commission - } { + Oregon
Natural Resources Commission + } may, with due regard to the
interests of the state, transfer all the right, title and
interest of the state in and to the Tumalo Project, and all
rights or franchises thereunto appertaining, to any irrigation
district or to the federal government, whenever it appears to the
commission that such transfer will be in the best interests of
the project.
SECTION 1738. ORS 555.400 is amended to read:
555.400. In the sale of water and water rights and the entry
upon lands now remaining unsold in the Tumalo Project, honorably
discharged soldiers and sailors, marines, and Red Cross nurses of
the Mexican, Spanish or Indian wars and of World War I shall have
a preferred right to the purchase and acquiring of the same for
such period of time as may be designated by the { - Water
Resources Commission - } { + Oregon Natural Resources
Commission + }.
SECTION 1739. ORS 555.410 is amended to read:
555.410. The sum of $10,000, which was appropriated by section
2, chapter 424, Oregon Laws 1917, shall be considered a loan to
the Tumalo Project and shall be returned to the General Fund,
together with interest at the legal rate from the date on which
the money is made available, from the receipts of the sale of
project lands. All expenditures incurred under the provisions of
ORS 555.340, 555.360 and 555.380 shall be paid at the same time
and in the same manner as state officers, upon vouchers approved
by the { - Water Resources Commission - } { + Oregon Natural
Resources Commission + }.
SECTION 1740. ORS 561.191 is amended to read:
561.191. (1) The State Department of Agriculture shall develop
and implement any program or rules that directly regulate farming
practices, as defined in ORS 30.930, that are for the purpose of
protecting water quality and that are applicable to areas of the
state designated as exclusive farm use zones under ORS 215.203 or
other agricultural lands in Oregon, including but not limited to
rules related to:
(a) Protection of the quality of surface or ground water;
(b) Wellhead protection areas;
(c) Coastal zone management areas;
(d) Areas of ground water concern; and
(e) Ground water management areas.
(2) Any program or rules adopted by the State Department of
Agriculture under subsection (1) of this section shall be
designed to assure achievement and maintenance of water quality
standards adopted by the Environmental Quality Commission.
(3) If two or more state agencies are required to adopt rules
under ORS 468B.150 to 468B.190, the agencies:
(a) Shall consult with one another and coordinate the rules;
and
(b) May consolidate the rulemaking proceedings.
(4) Nothing in this section is intended to change or reduce the
authority of the { - Water Resources Commission or the Water
Resources Department - } { + Oregon Department of Natural
Resources or the Oregon Natural Resources Commission + } under
ORS chapters 536 to 543.
SECTION 1741. ORS 568.552 is amended to read:
568.552. (1) The members of the local governing body of a soil
and water conservation district shall have, in addition to the
powers granted to them by ORS 568.550 and within the limits of
appropriations and other moneys duly made available to the soil
and water conservation district, the power:
(a) To plan, construct, maintain, manage, administer or control
any works of improvement for flood prevention or for the
conservation, development, utilization or disposal of water upon
lands within their respective districts upon obtaining the
consent of the landowner as defined in ORS 568.210, and the land
occupier as defined in ORS 568.210, of such lands.
(b) To enter into written agreements to furnish financial or
other aid to any agency, governmental or otherwise, or any
landowner as defined in ORS 568.210, or land occupier as defined
in ORS 568.210, or both of them, of lands within the district,
for flood prevention or for the conservation, development,
utilization or disposal of water within their respective
districts.
(c) To manage, as agent, or to take over, by purchase, lease,
or otherwise any flood prevention, drainage, irrigation or
agricultural water management project or any combination thereof,
undertaken by the United States or any of its agencies, or by
this state or any of its agencies.
(2) Authority granted under this chapter shall be subject to
the authority of the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } to formulate an
integrated, coordinated program for the use and control of all
water resources of this state and to classify and withdraw water
resources of this state under ORS 536.300 to 536.410.
SECTION 1742. ORS 701.010 is amended to read:
701.010. The Construction Contractors Board may adopt rules to
make licensure optional for persons who offer, bid or undertake
to perform work peripheral to construction, as defined by
administrative rule of the board. The following persons are
exempt from licensure under this chapter:
(1) A person who is constructing, altering, improving or
repairing personal property.
(2) A person who is constructing, altering, improving or
repairing a structure located within the boundaries of any site
or reservation under the jurisdiction of the federal government.
(3) A person who furnishes materials, supplies, equipment or
finished product and does not fabricate them into, or consume
them, in the performance of the work of a contractor.
(4) A person working on one structure or project, under one or
more contracts, when the aggregate price of all of that person's
contracts for labor, materials and all other items is less than
$500 and such work is of a casual, minor or inconsequential
nature. This subsection does not apply to a person who advertises
or puts out any sign or card or other device that might indicate
to the public that the person is a contractor.
(5) An owner who contracts for work to be performed by a
licensed contractor. This subsection does not apply to a person
who, in the pursuit of an independent business, constructs,
remodels, repairs or for compensation and with the intent to sell
the structure, arranges to have constructed, remodeled or
repaired a structure with the intent of offering the structure
for sale before, upon or after completion. It is prima facie
evidence that there was an intent of offering the structure for
sale if the person who constructed, remodeled or repaired the
structure or arranged to have the structure constructed,
remodeled or repaired does not occupy the structure after its
completion.
(6) An owner who contracts for one or more licensed contractors
to perform work wholly or partially within the same calendar year
on not more than three existing residential structures of the
owner. This subsection does not apply to an owner contracting for
work that requires a building permit unless the work that
requires a permit is performed by, or under the direction of, a
residential general contractor.
(7) A person performing work on a property that person owns or
performing work as the owner's employee, whether the property is
occupied by the owner or not, or a person performing work on that
person's residence, whether or not that person owns the
residence. This subsection does not apply to a person performing
work on a structure owned by that person or the owner's employee,
if the work is performed in the pursuit of an independent
business with the intent of offering the structure for sale
before, upon or after completion.
(8) A person licensed in one of the following trades or
professions when operating within the scope of that license:
(a) An architect licensed by the State Board of Architect
Examiners.
(b) A professional engineer registered by the State Board of
Examiners for Engineering and Land Surveying.
(c) A water well contractor licensed by the { - Water
Resources Department - } { + Oregon Department of Natural
Resources + }.
(d) A sewage disposal system installer licensed by the
Department of Environmental Quality.
(e) A landscape contracting business licensed under ORS 671.510
to 671.760.
(f) A pesticide operator licensed under ORS 634.116 who does
not conduct inspections for wood destroying organisms for the
transfer of real estate.
(g) An appraiser certified or licensed under ORS chapter 674 or
an appraiser assistant registered under ORS chapter 674 by the
Appraiser Certification and Licensure Board.
(9) A landscape contracting business operating within the scope
of a license issued under ORS 671.510 to 671.760 that:
(a) Constructs fences, decks, arbors, patios, landscape edging,
driveways, walkways or retaining walls and meets the applicable
bonding requirements under ORS 671.690; or
(b) Subcontracts to a licensed plumbing contractor, or
otherwise arranges for a licensed plumbing contractor to perform,
the installation of an irrigation system described in ORS 671.540
(1)(m) or the repair or maintenance of an irrigation system.
(10) A person who performs work subject to this chapter as an
employee of a contractor.
(11) A manufacturer of a manufactured home constructed under
standards established by the federal government.
(12) A person involved in the movement of:
(a) Modular buildings or structures other than manufactured
structures not in excess of 14 feet in width.
(b) Structures not in excess of 16 feet in width when the
structures are being moved by their owner if the owner is not a
contractor required to be licensed under this chapter.
(13) A commercial lending institution or surety company that
arranges for the completion, repair or remodeling of a structure.
As used in this subsection, 'commercial lending institution '
means any bank, mortgage banking company, trust company, savings
bank, savings and loan association, credit union, national
banking association, federal savings and loan association,
insurance company or federal credit union maintaining an office
in this state.
(14) A real estate licensee as defined in ORS 696.010 or the
employee of that licensee when performing work on a structure
that the real estate licensee manages under a contract.
(15) Units of government other than those specified in ORS
701.005 (5)(c) and (d).
(16) A qualified intermediary in a property exchange that
qualifies under section 1031 of the Internal Revenue Code as
amended and in effect on January 1, 2004, if the qualified
intermediary is not performing construction activities.
(17) A business that supplies personnel to a licensed
contractor for the performance of work under the direction and
supervision of the contractor.
(18) City or county inspectors acting under ORS 701.225 or
inspectors described in ORS 455.715.
SECTION 1743. ORS 772.305 is amended to read:
772.305. (1) The United States, the state, or any person, firm,
cooperative, association or corporation, shall have the right of
way across and upon public, private and corporate lands or other
rights of way, for the construction, maintenance, repair and use
of all necessary reservoirs, dams, water gates, canals, ditches,
flumes, tunnels, pipelines or other means of securing, storing
and conveying water for irrigation or for drainage, or any other
beneficial purpose, upon payment of just compensation therefor.
(2) But such right of way shall in all cases be so constructed,
obtained, located and exercised in a manner consistent with
proper and economical and engineering construction, so as not to
unnecessarily impair practical use of any other right of way,
highway or public or private road, nor to unnecessarily injure
any public or private property.
(3) Such right of way may be acquired in the manner provided by
law for the taking of private property for public use. If a water
right permit is required under the applicable provisions of ORS
chapter 537 in order to use, store or convey water within the
right of way, a person, firm, cooperative, association or
corporation may not acquire a right of way under this subsection
before obtaining a water right permit or obtaining a final order
of the { - Water Resources Department - } { + Oregon
Department of Natural Resources + } approving an application for
a water right permit.
(4) In determining just compensation under subsection (1) of
this section for a right of way across forestlands, consideration
shall be given, but not limited to, the effect of the right of
way on:
(a) Access to the whole of the affected parcel;
(b) Ease and method of timber harvesting or other commercial
uses of the affected parcel; and
(c) Any agricultural or silvicultural activities on the
affected parcel, including but not limited to application of
chemicals, cultivation or harvesting activities and movement of
equipment associated with any of the above activities.
SECTION 1744. ORS 772.310 is amended to read:
772.310. (1) When the United States, the state, or any person,
firm or corporation desires to convey water for irrigation,
drainage or for any other beneficial purpose, and there is a
canal or ditch already constructed that can be enlarged to convey
the required quantity of water, then the United States, the
state, or any such person, firm or corporation, or the owner or
owners of the land through which a new canal or ditch would have
to be constructed to convey the quantity of water necessary, may
enlarge the canal or ditch already constructed, by compensating
the owner of the canal or ditch to be enlarged for the damages,
if any, caused by the enlargement.
(2) The enlargement may be made at any time between October 1
and March 1, but not any other times, unless upon agreement in
writing with the owner or owners of the canal or ditch.
(3) If a water right permit is required under the applicable
provisions of ORS chapter 537 in order to use, store or convey
water within the enlargement, a person, firm, cooperative,
association or corporation may not acquire an enlargement under
this section before obtaining a water right permit or obtaining a
final order of the { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } approving an
application for a water right permit.
{ + NOTE: + } Section 1745 was deleted. Subsequent sections
were not renumbered.
SECTION 1746. Section 4, chapter 669, Oregon Laws 2005, is
amended to read:
{ + Sec. 4. + } Section 2 { + , chapter 669, Oregon Laws
2005, + } { - of this 2005 Act - } applies to all ground water
permits containing a ground water mitigation requirement, all
final orders approving water right applications containing a
ground water mitigation requirement, all mitigation credits, all
ground water mitigation projects and all mitigation banks issued
or approved in the Deschutes River Basin by the { - Water
Resources Department or the Water Resources Commission - }
{ + Oregon Department of Natural Resources or the Oregon Natural
Resources Commission + } before, on or after
{ - the effective date of this 2005 Act - } { + July 29,
2005 + }.
SECTION 1747. Section 5, chapter 669, Oregon Laws 2005, is
amended to read:
{ + Sec. 5. + } (1) The { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } shall repeal the
rules referred to in section 2 { + , chapter 669, Oregon Laws
2005, + } { - of this 2005 Act - } on January 2, 2014.
(2) Ground water permits and mitigation projects approved
before the repeal remain valid and effective.
SECTION 1748. Section 2, chapter 496, Oregon Laws 2001, is
amended to read:
{ + Sec. 2. + } (1) There is established a Well Constructors
Continuing Education Committee consisting of four members
appointed by the { - Water Resources Director - }
{ + Director of the Oregon Department of Natural Resources + }
as follows:
(a) Three persons from the well drilling industry licensed
pursuant to ORS 537.747; and
(b) One person from the regulatory community.
(2) The term of office of each member is three years, but a
member serves at the pleasure of the director. Before the
expiration of the term of a member, the director shall appoint a
successor whose term begins on July 1 next following. A member is
eligible for reappointment. If there is a vacancy for any cause,
the director shall make an appointment to become effective
immediately for the unexpired term.
(3) A member of the committee is entitled to travel expenses as
provided in ORS 292.495.
(4) Members of the committee must be residents of this state
who are knowledgeable about the principles of well construction.
(5) The committee shall select one of its members as
chairperson and another as vice chairperson, for such terms and
with the duties and powers necessary for the performance of the
functions of such offices as the committee determines.
(6) Three members of the committee constitute a quorum for the
transaction of business. At least three members of the committee
must approve all official actions or decisions of the committee.
SECTION 1749. Section 4, chapter 496, Oregon Laws 2001, as
amended by section 2, chapter 221, Oregon Laws 2007, is amended
to read:
{ + Sec. 4. + } (1) The Well Constructors Continuing
Education Committee shall recommend to the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + } a
process for reviewing and approving continuing education
requirements for licensed water well constructors established by
rule pursuant to subsection (2) of this section.
(2) The commission shall adopt rules necessary for the
administration of a continuing education program for licensed
water well constructors consistent with the recommendations of
the committee.
(3) The rules adopted by the commission under this section for
the continuing education program shall:
(a) Authorize the committee to review and approve continuing
education courses and to assign continuing education credits.
(b) At a minimum require, for renewal of a license issued under
ORS 537.747, that an applicant:
(A) Through clinics, schools, professional organizations or
seminars, lectures or other courses of study that relate to the
practice of well construction and that are approved by the
committee, obtain continuing education credits during each
licensing period in an amount designated by the commission, but
not to exceed 14 credits; and
(B) Furnish proof on a form approved by the committee that the
applicant has complied with the continuing education requirements
during the preceding licensing period unless the applicant is
exempt under subsection (4) of this section.
(4) The commission may waive the continuing education
requirements established by rule pursuant to subsection (2) of
this section for a licensed water well constructor if the
constructor submits satisfactory evidence of inability to attend
continuing education courses because of health, military duty or
other circumstances beyond the control of the constructor.
(5) For courses sponsored by the { - Water Resources
Department - } { + Oregon Department of Natural Resources + },
the fee for one continuing education credit is $40, and the total
fees per day may not exceed $250.
(6) The fees collected under this section for continuing
education courses sponsored by the department shall be { - paid
into the Water Resources Department Water Right Operating Fund.
Notwithstanding ORS 536.009, such moneys shall be used - }
{ + deposited in the Oregon Natural Resources Fund. Moneys
deposited in the fund under this subsection are continuously
appropriated to the department + } to pay the department's
expenses associated with conducting continuing education courses.
(7) At the time of application to renew a water well
constructor's license pursuant to ORS 537.747 (5), a person shall
provide the department with evidence of compliance with the
continuing education requirements established pursuant to this
section.
SECTION 1749a. Section 23, chapter 705, Oregon Laws 2003, as
amended by section 1, chapter 283, Oregon Laws 2009, is amended
to read:
{ + Sec. 23. + } (1) In order to increase district water
management flexibility, the { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } shall establish a
pilot project in which districts may temporarily allow, for water
uses subject to transfer, the use of water on any land within the
legal boundaries of the district established pursuant to ORS
chapter 545, 547, 552, 553 or 554.
(2) The use of water on any land within the legal boundaries of
the district may be allowed if:
(a) The rate and duty, and the total number of acres to which
water will be applied under the transfer, do not exceed existing
limits on the water use subject to transfer;
(b) The type of use authorized under the water use subject to
transfer remains the same; and
(c) The land from which the water use is being transferred does
not receive any water under the right being transferred during
the irrigation season in which the change is made.
(3) The department shall allow the pilot project to be
implemented in the Talent Irrigation District, the Owyhee
Irrigation District, the Tualatin Valley Irrigation District, the
Central Oregon Irrigation District, the Swalley Irrigation
District, the Westland Irrigation District, the North Unit
Irrigation District, the Arnold Irrigation District, the
Stanfield Irrigation District, the West Extension Irrigation
District, the Hermiston Irrigation District, the Medford
Irrigation District, the Sutherlin Water Control District, the
Santiam Water Control District and the Ochoco Irrigation District
or their successor districts. However, any district participating
in the project must:
(a) Have defined state district boundaries;
(b) Have a management structure that can ensure that water is
applied only where the water use is authorized;
(c) Not irrigate an area in any one irrigation season that
exceeds the maximum number of acres allowed to be irrigated under
the original water right;
(d) Have a full and accurate measurement of the water
appropriated;
(e) Have an accurate map identifying the location of authorized
use, by priority date, for review upon request and provide a copy
of the map to the watermaster; and
(f) Have on file statements by any landowner affected by the
water use change indicating that the landowner agrees to the
change.
(4) If any of the specified districts are unable to participate
in the project, the department may identify another district for
the project.
(5) The department may require that use of water under the
pilot project cease and that the use revert to the use allowed
under the water right of record if the department determines
that:
(a) The district does not meet the qualifications established
in subsection (3) of this section;
(b) The water is being used in a manner that violates the
requirements in subsection (2) of this section; or
(c) The changes made to the use of water would result in injury
to existing water rights or an enlargement of the original water
right.
(6) Use of water under the pilot project constitutes a
beneficial use of water and does not constitute nonuse for
purposes of forfeiture under ORS 540.610.
SECTION 1749b. Section 24, chapter 705, Oregon Laws 2003, as
amended by section 1, chapter 10, Oregon Laws 2007, and section
2, chapter 283, Oregon Laws 2009, is amended to read:
{ + Sec. 24. + } The { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } shall report to
the Seventy-eighth Legislative Assembly, no later than January
31, 2015, on the operation of the pilot project established under
section 23, chapter 705, Oregon Laws 2003.
SECTION 1749c. Section 5, chapter 13, Oregon Laws 2008, is
amended to read:
{ + Sec. 5. + } (1) The { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } shall conduct a
regional aquifer recovery assessment for the Umatilla Basin. The
assessment conducted under this section must:
(a) Include an engineering and hydrogeologic study that
evaluates the cost and feasibility of designing, constructing and
expanding facilities to extract surface water during times that
would avoid impacts on state or federally listed endangered or
threatened fish species and on existing water rights.
(b) Evaluate the feasibility of:
(A) Recharging ground water pursuant to ORS 537.135 in the
Ordnance and Echo Meadows aquifers; and
(B) Injecting water into the Ordnance, Butter Creek and Stage
Gulch basalt aquifers pursuant to ORS 537.531, 537.532 and
537.534.
(2) The feasibility study required under this section must
identify:
(a) Monitoring requirements to aid in the evaluation of
potential impacts to stream flows, ground water quality and
surface water quality.
(b) Options for the treatment of ground water and surface water
that meet requirements under ORS 537.135, 537.531, 537.532 and
537.534.
(c) Potential permitting and other jurisdictional issues under
ORS 537.135, 537.531, 537.532 and 537.534.
(d) Opportunities to protect fish and fish habitat, and to
improve streamflows, in the Lower Umatilla River based on
existing information.
SECTION 1749d. Section 6, chapter 13, Oregon Laws 2008, is
amended to read:
{ + Sec. 6. + } In completing the Umatilla Basin regional
aquifer recovery assessment required by section 5 { + , chapter
13, Oregon Laws 2008 + } { - of this 2008 Act - } , the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + } shall request that the Bureau of
Reclamation of the United States Department of the Interior:
(1) Consider the feasibility of using infrastructure from the
bureau's Umatilla Basin Project Phase II to deliver surface water
from the Columbia River to the Stage Gulch critical ground water
area; and
(2) Coordinate the Bureau of Reclamation study of the water
supply in the Umatilla Basin with the department's Umatilla Basin
regional aquifer recovery assessment and determine whether the
bureau may assist with the temporary or permanent replacement of
water for designated critical ground water areas in the Umatilla
Basin.
SECTION 1749e. Section 17, chapter 907, Oregon Laws 2009, is
amended to read:
{ + Sec. 17. + } (1) As used in this section, 'critical
ground water storage project' means an underground or
below-ground storage of river water in a critical ground water
area designated under ORS 537.730 for use in:
(a) Aquifer storage and recovery as described in ORS 537.534
and streamflow augmentation and restoration; or
(b) Recharging ground water basins and reservoirs as described
in ORS 537.135 and streamflow augmentation and restoration.
(2) The { - Water Resources Department - } { + Oregon
Department of Natural Resources + } may issue a grant under this
section only for a critical ground water storage project that is
located in the Umatilla Basin and that meets the conditions
described in this section.
(3) Except as provided in subsection (4) of this section,
notwithstanding ORS 537.534, if the project uses artificial
recharge to recharge an alluvial aquifer that is not confined,
the project must be designed:
(a) To provide for no more than 75 percent of new stored water
to be withdrawn and for not less than 25 percent of the new water
to be dedicated for the purpose of providing net environmental
public benefits or in-stream benefits; and
(b) To the extent practicable, to return dedicated new stored
water for stream augmentation at a time of year that the
{ - Water Resources - } department, in consultation with
{ - the State Department of Fish and Wildlife and - } relevant
tribal governments, determines will provide the maximum net
environmental public benefit or in-stream benefit.
(4) If more than 25 percent of the funding for an aquifer
storage and recovery project is from grants of state moneys and
is not subject to repayment, the project must be designed to
dedicate for the purpose of providing net environmental public
benefit or in-stream benefit a percentage of the new stored water
created by the project that equals or exceeds the percentage of
funding for the project that is from grants of state moneys. The
{ - Water Resources - } department shall manage the dedicated
increment of new stored water for net environmental public
benefit and in-stream benefit.
(5) On or before the earlier of six years after the issuance of
the ground water recharge permit or the date the water right
certificate is issued, the department shall quantify and legally
protect in-stream the increment of new water returned in stream
from a project described in this section.
(6) The department shall require as a contractual condition for
issuing the grant, and as a condition of any new groundwater
recharge permit or water right certificate issued for the
project, that if the project receives grants or loans from state
moneys other than a grant issued under this section, the project
must be operated in a manner that actually dedicates the
percentage of new stored water for net environmental public
benefit or in-stream benefit that the project was designed to
dedicate for those purposes.
(7) This section does not limit the authority granted the
Environmental Quality Commission or the Department of
Environmental Quality under ORS chapter 468B.
(8) This section is repealed January 2, 2030.
SECTION 1749f. Section 20, chapter 907, Oregon Laws 2009, is
amended to read:
{ + Sec. 20. + } (1) A water developer, as defined in ORS
541.700, shall file an application for a loan from the Water
Development Fund as provided in this section instead of under ORS
541.705 if:
(a) The applicant is not a municipality or a provider of water
for municipal purposes;
(b) The loan is for the purpose of enabling the construction of
a water development project in the Columbia River Basin; and
(c) The moneys from which the loan is to be funded were
provided under an appropriation that dedicates the moneys for use
under this section or for loans of a type described in this
subsection made to applicants of a type described in this
subsection.
(2) An application filed under this section must be in a form
prescribed by the { - Water Resources Commission - }
{ + Oregon Natural Resources Commission + } and include the
following:
(a) A description of the nature and the primary and secondary
purposes of the project.
(b) An analysis of the need for the project and for the water
that the project is intended to deliver.
(c) Identification and description of the project components
sufficient to meet the conditions for project funding approval
under section 25 { + , chapter 907, Oregon Laws 2009 + } { - of
this 2009 Act - } .
(d) A description of the economic feasibility of the project,
including but not limited to:
(A) The costs of the project; and
(B) Information about the financial and other aspects of the
operation and maintenance plans for the project.
(e) Suggestions for interim and long-term project performance
benchmarks.
(f) An analysis of the project impacts including, but not
limited to, the:
(A) Expected economic public benefits.
(B) Expected social and cultural public benefits.
(C) Expected net environmental public benefits.
(g) An evaluation of the potential impact on water quality,
based upon water quality standards.
(h) Proof that the applicant has acquired at least a final
order or limited license for necessary water permits from the
{ - department - } { + Oregon Department of Natural
Resources + }.
(i) Letters of support for the proposed water resource
development project.
(j) If the project has not previously received state funding, a
statement regarding whether other moneys are available or have
been sought or received for the implementation of the water
resource development project.
(k) A description of a loan repayment plan.
(L) Any other information required by the department.
(3) Any relevant information described in ORS 541.705 (2)(c) or
(e) or (3).
(4) If the project will receive surface water impounded from a
perennial stream, water diverted from a stream that supports
sensitive, threatened or endangered fish, or more than 500
acre-feet of diverted surface water annually, in addition to the
other information required under this section the application
shall include the following completed studies:
(a) An analysis of by-pass, optimum peak, flushing and other
ecological flows of the affected stream and of the impact of the
project on those flows, that conforms to standards set by the
department in consultation with { - the State Department of
Fish and Wildlife and other - } relevant agencies;
(b) An independent comparative analysis of alternative means of
supplying the water intended to be generated by the project,
including but not limited to the costs and benefits of
conservation, reuse and alternatives and the extent to which
long-term water supply needs may be met using those alternatives;
and
(c) Evaluation of the need for and feasibility of using
project-derived water to augment in-stream flows to conserve,
maintain and enhance aquatic life, fish life and any other
ecological values.
(5) If the applicant is an agricultural water supplier, the
applicant must have an approved agriculture water management and
conservation plan, have submitted a completed agricultural water
management and conservation plan to the { - Water Resources - }
department for approval or be in the process of completing or
updating a water management and conservation plan.
(6) An application under this section is subject to application
fees and additional processing costs as described in ORS 541.710
and loan processing fees under ORS 541.730.
(7) An analysis and evaluation conducted as part of a study
performed pursuant to { + + } { - chapter 13, Oregon Laws
2008 - } { + ORS 541.561 to 541.581 and sections 5 and 6,
chapter 13, Oregon Laws 2008 + }, is deemed to satisfy the
requirements of subsection (4) of this section.
SECTION 1749g. Section 25, chapter 907, Oregon Laws 2009, is
amended to read:
{ + Sec. 25. + } (1) The { - Water Resources Department - }
{ + Oregon Department of Natural Resources + }, acting as agent
for the { - Water Resources Commission - } { + Oregon Natural
Resources Commission + }, may approve a loan for which an
application is filed under section 20 { + , chapter 907, Oregon
Laws 2009 + } { - of this 2009 Act - } , if the department
finds that:
(a) The loan meets any applicable qualifications or
restrictions under Article XI-I(1) of the Oregon Constitution,
ORS 541.700 to 541.855, section 26 { + , chapter 907, Oregon Laws
2009, + } { - of this 2009 Act, Water Resources Commission - }
rules { + of the commission + } and bondholder agreements;
(b) The plan for the construction of the proposed project
complies with all applicable provisions related to water well
constructors under ORS 537.747 to 537.765, reservoirs and
diversion dams under ORS 540.340 and dams, dikes and hydraulic
structures or works in ORS 540.350;
(c) Planned diversions of surface water include provision for
fish screens and, if applicable, volitional fish passage;
(d) The use of surface water or ground water from the project
will be measured and reported;
(e) The applicant or beneficiaries of water from the project
measure and report, or have scheduled and financed the
measurement of, all existing water use at the point of diversion;
(f) There is a reasonable certainty that the project will
deliver a measurable net environmental public benefit; and
(g) The project is designed to deliver in-stream benefits.
(2) The department may require that a project protect peak and
ecological flows to the extent { - determined by the State
Department of Fish and Wildlife to be - } { + that the
department determines that such protection is + } necessary.
(3) This section and sections 20 and 26 { + , chapter 907,
Oregon Laws 2009, + } { - of this 2009 Act - } do not limit
the authority granted the Environmental Quality Commission or the
Department of Environmental Quality under ORS chapter 468B.
SECTION 1749h. Section 25, chapter 907, Oregon Laws 2009, as
amended by section 31, chapter 907, Oregon Laws 2009, is amended
to read:
{ + Sec. 25. + } (1) The { - Water Resources Department - }
{ + Oregon Department of Natural Resources + }, acting as agent
for the { - Water Resources Commission - } { + Oregon Natural
Resources Commission + }, may approve a loan for which an
application is filed under section 20 { + , chapter 907, Oregon
Laws 2009 + } { - of this 2009 Act - } , if the department
finds that:
(a) The loan meets any applicable qualifications or
restrictions under Article XI-I(1) of the Oregon Constitution,
ORS 541.700 to 541.855, section 26 { + , chapter 907, Oregon Laws
2009, + } { - of this 2009 Act, Water Resources Commission - }
rules { + of the commission + } and bondholder agreements;
(b) The plan for the construction of the proposed project
complies with all applicable provisions related to water well
constructors under ORS 537.747 to 537.765, reservoirs and
diversion dams under ORS 540.340 and dams, dikes and hydraulic
structures or works in ORS 540.350;
(c) Planned diversions of surface water include provision for
fish screens and, if applicable, volitional fish passage;
(d) The use of surface water or ground water from the project
will be measured and reported;
(e) The applicant or beneficiaries of water from the project
measure and report, or have scheduled and financed the
measurement of, all existing water use at the point of diversion;
(f) There is a reasonable certainty that the project will
deliver a measurable net environmental public benefit; and
(g) The project is designed to deliver in-stream benefits.
(2) The department shall require that a project protect peak
and ecological flows to the extent { - determined by the State
Department of Fish and Wildlife to be - } { + that the
department determines that such protection is + } necessary.
(3) This section and sections 20 and 26 { + , chapter 907,
Oregon Laws 2009, + } { - of this 2009 Act - } do not limit
the authority granted the Environmental Quality Commission or the
Department of Environmental Quality under ORS chapter 468B.
SECTION 1749i. Section 26, chapter 907, Oregon Laws 2009, is
amended to read:
{ + Sec. 26. + } (1) The { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } shall ensure that
any necessary federal and state environmental impact approval
processes have been completed, and that agencies have issued any
relevant approvals and permits, before the advancement of any
loan moneys for a project described in section 25 { + , chapter
907, Oregon Laws 2009 + } { - of this 2009 Act - } . The
department shall determine the amount of a loan for a project
described in section 25 { + , chapter 907, Oregon Laws 2009, + }
{ - of this 2009 Act - } on a case-by-case basis. The
department shall determine the maximum amount of a loan based in
part upon a reasonable and prudent expectation of the ability of
the borrower to repay the loan. The department may not issue a
loan to provide assistance for operational or maintenance
expenses of a water development project other than project
startup costs.
(2) Notwithstanding ORS 541.730, if the { - Water Resources
Commission - } { + Oregon Natural Resources Commission + }, in
consultation with the State Treasurer, believes that the project
is unlikely to produce a net profit for the borrower or for any
for-profit entity, the commission may set the loan interest rate
at a level that reduces or waives the amount of the interest rate
set under ORS 541.730 that is in excess of the interest to be
paid to bondholders on the underlying bonds.
(3) The department may issue a loan only if the applicant
agrees to periodic review of the project, including but not
limited to:
(a) Review of interim and long-term performance benchmarks set
by the department; and
(b) Program and fiscal audits to ensure that performance
benchmarks are achieved on project development, project benefits
and return on investment.
(4) The department may issue a loan only if the applicant
agrees to report to the department no later than two years after
receiving the loan moneys regarding the progress of the project
and the economic public benefit, social and cultural public
benefit and net environmental public benefit realized from the
project. The department shall provide copies of the applicant
reports received by the department during the biennium to an
interim committee of the Legislative Assembly dealing with
natural resources.
(5) The commission may establish reasonable fees for
management, oversight or review services that the department
provides for a water development project. The fees shall be
deposited to the Water Development Administration and Bond
Sinking Fund.
SECTION 1749j. Section 29, chapter 907, Oregon Laws 2009, is
amended to read:
{ + Sec. 29. + } The { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } shall report to
the Seventy-sixth Legislative Assembly in the manner provided by
ORS 192.245 no later than October 1, 2012, regarding the
operation of the loan and grant programs described in { + ORS
541.600 to 541.641 and sections 20, 25 and 26, chapter 907,
Oregon Laws 2009 + } { - sections 18 to 27 of this 2009 Act
- } , including but not limited to:
(1) The number and types of jobs created by water development
projects receiving loans or grants from the department;
(2) Any studies conducted by the department or loan or grant
recipients during the 2009-2011 biennium regarding peak and
ecological flows in streams;
(3) Any recommendations by the department for legislative
changes to improve the operation of the loan and grant programs;
(4) Any recommendations for changes to Article XI-I(1) of the
Oregon Constitution to be referred to the people;
(5) The total economic public benefit, social and cultural
public benefit and net environmental public benefit created as a
result of loans and grants issued under { - sections 23 and 25
of this 2009 Act - } { + ORS 541.631 + } { + and section 25,
chapter 907, Oregon Laws 2009 + };
(6) An analysis of the effect of the requirement imposed under
{ - section 23 (2) of this 2009 Act - } { + ORS 541.631
(2) + };
(7) Estimated increases in state tax revenues generated by
projects receiving grants or loans;
(8) The gross dollar value of issued loans, the amount of loan
reserves and the increase the Water Development Fund attributable
to the interest rate amount described in ORS 541.730 (3)(e); and
(9) Moneys generated from fees under { - sections 19, 20, 24
and 26 of this 2009 Act - } { + ORS 541.611 and 541.636 and + }
{ + sections 20 and 26, chapter 907, Oregon Laws 2009 + }.
SECTION 1749k. Section 33, chapter 907, Oregon Laws 2009, is
amended to read:
{ + Sec. 33. + } (1) Notwithstanding { - sections 19 and 21
to 23 of this 2009 Act - } { + ORS 541.611, 541.616, 541.621
and 541.631 + }, but subject to { - section 24 of this 2009
Act, the Water Resources Department - } { + ORS 541.636, the
Oregon Department of Natural Resources + }shall waive the grant
application process described in
{ - sections 19 and 21 to 23 of this 2009 Act - } { + ORS
541.611, 541.616, 541.621 and 541.631 + }when issuing a grant
for water development projects that:
(a) Are located in an area of the Umatilla Basin for which an
assessment has been performed under { - chapter 13, Oregon Laws
2008 - } { + ORS 541.561 to 541.581 and sections 5 and 6,
chapter 13, Oregon Laws 2008 + }; and
(b) Except as provided in subsection (2) of this section, are
designed:
(A) To provide for no more than 75 percent of new stored water
to be withdrawn and for not less than 25 percent of the new water
to be dedicated for the purpose of providing net environmental
public benefits or in-stream benefits; and
(B) To the extent practicable, to return dedicated new stored
water for stream augmentation at a time of year that the
{ - Water Resources - } department, in consultation with
{ - the State Department of Fish and Wildlife and - } relevant
tribal governments, determines will provide the maximum net
environmental public benefit or in-stream benefit.
(2) If more than 25 percent of the funding for an aquifer
storage and recovery project is from grants of state moneys and
is not subject to repayment, the project must be designed to
dedicate for the purpose of providing net environmental public
benefit or in-stream benefit a percentage of the new stored water
created by the project that equals or exceeds the percentage of
funding for the project that is from grants of state moneys. The
{ - Water Resources - } department shall manage the dedicated
increment of new stored water for net environmental public
benefit and in-stream benefit.
(3) This section does not limit the authority granted the
Environmental Quality Commission or the Department of
Environmental Quality under ORS chapter 468B.
(4) This section is repealed January 2, 2030.
{ +
OREGON WATERSHED ENHANCEMENT BOARD + }
{ +
(Abolishment and Transfer of + }
{ +
Duties, Functions and Powers) + }
SECTION 1750. { + (1) The Oregon Watershed Enhancement Board
is abolished. On the operative date of this section, the tenure
of office of the executive director and the members of the Oregon
Watershed Enhancement Board ceases.
(2) All the duties, functions and powers of the Oregon
Watershed Enhancement Board are imposed upon, transferred to and
vested in the Oregon Department of Natural Resources. + }
{ +
(Transfer of Records, Property and Employees) + }
SECTION 1751. { + (1) The board of directors of the Oregon
Watershed Enhancement Board shall:
(a) Deliver to the Oregon Department of Natural Resources all
records and property within the jurisdiction of the board that
relate to the duties, functions and powers transferred by section
1750 of this 2011 Act; and
(b) Transfer to the Oregon Department of Natural Resources
those employees engaged primarily in the exercise of the duties,
functions and powers transferred by section 1750 of this 2011
Act.
(2) The Director of the Oregon Department of Natural Resources
shall take possession of the records and property, and shall take
charge of the employees and employ them in the exercise of the
duties, functions and powers transferred by section 1750 of this
2011 Act, without reduction of compensation but subject to change
or termination of employment or compensation as provided by law.
(3) The Governor shall resolve any dispute between the Oregon
Watershed Enhancement Board and the Oregon Department of Natural
Resources relating to transfers of records, property and
employees under this section, and the Governor's decision is
final. + }
{ +
(Transfer of Unexpended Revenues) + }
SECTION 1752. { + (1) The unexpended balances of amounts
authorized to be expended by the Oregon Watershed Enhancement
Board for the biennium beginning July 1, 2011, from revenues
dedicated, continuously appropriated, appropriated or otherwise
made available for the purpose of administering and enforcing the
duties, functions and powers transferred by section 1750 of this
2011 Act are transferred to and are available for expenditure by
the Oregon Department of Natural Resources for the biennium
beginning July 1, 2011, for the purpose of administering and
enforcing the duties, functions and powers transferred by section
1750 of this 2011 Act.
(2) The expenditure classifications, if any, established by
Acts authorizing or limiting expenditures by the Oregon Watershed
Enhancement Board remain applicable to expenditures by the Oregon
Department of Natural Resources under this section. + }
{ +
(Action, Proceeding and Prosecution) + }
SECTION 1753. { + The transfer of duties, functions and powers
to the Oregon Department of Natural Resources by section 1750 of
this 2011 Act does not affect any action, proceeding or
prosecution involving or with respect to such duties, functions
and powers begun before and pending at the time of the transfer,
except that the Oregon Department of Natural Resources is
substituted for the Oregon Watershed Enhancement Board in the
action, proceeding or prosecution. + }
{ +
(Liability, Duty and Obligation) + }
SECTION 1754. { + (1) Nothing in sections 1750 to 1756 of this
2011 Act, the amendments to statutes by sections 28 to 411, 422
to 576, 585 to 901, 912 to 1090, 1099 to 1112, 1122 to 1257, 1269
to 1749k, 1758 to 1780, 1791 to 2081 and 2091 to 2160 of this
2011 Act or the repeal of ORS 541.360, 541.362 or 541.363 by
section 2161 of this 2011 Act relieves a person of a liability,
duty or obligation accruing under or with respect to the duties,
functions and powers transferred by section 1750 of this 2011
Act. The Oregon Department of Natural Resources may undertake the
collection or enforcement of any such liability, duty or
obligation.
(2) The rights and obligations of the Oregon Watershed
Enhancement Board legally incurred under contracts, leases and
business transactions executed, entered into or begun before the
operative date of section 1750 of this 2011 Act are transferred
to the Oregon Department of Natural Resources. For the purpose of
succession to these rights and obligations, the Oregon Department
of Natural Resources is a continuation of the Oregon Watershed
Enhancement Board and not a new authority. + }
{ +
(Rules) + }
SECTION 1755. { + Notwithstanding the transfer of duties,
functions and powers by section 1750 of this 2011 Act, the rules
of the Oregon Watershed Enhancement Board in effect on the
operative date of section 1750 of this 2011 Act continue in
effect until superseded or repealed by rules of the Oregon
Department of Natural Resources. References in rules of the
Oregon Watershed Enhancement Board to the Oregon Watershed
Enhancement Board, or to an officer or employee of the Oregon
Watershed Enhancement Board, are considered to be references to
the Oregon Department of Natural Resources or to an officer or
employee of the Oregon Department of Natural Resources. + }
{ +
(References) + }
SECTION 1756. { + Whenever, in any uncodified law or
resolution of the Legislative Assembly or in any rule, document,
record or proceeding authorized by the Legislative Assembly,
reference is made to the Oregon Watershed Enhancement Board, or
to an officer or employee of the Oregon Watershed Enhancement
Board, the reference is considered to be a reference to the
Oregon Department of Natural Resources or to an officer or
employee of the Oregon Department of Natural Resources. + }
{ +
(Agency Name Change) + }
SECTION 1757. { + For the purpose of harmonizing and
clarifying statutory law, the Legislative Counsel may substitute
for words designating the 'Oregon Watershed Enhancement Board' or
its officers, wherever they occur in statutory law, words
designating the 'Oregon Department of Natural Resources' or its
officers. + }
{ +
(Conforming Amendments) + }
SECTION 1758. ORS 541.351 is amended to read:
541.351. As used in ORS 541.351 to 541.415:
(1) 'Adaptive management' means applying management or
practices over time and across the landscape to achieve site
specific resource goals using an integrated and science based
approach that results in changes over time in response to
feedback or monitoring.
(2) 'Associated uplands' includes those lands of a watershed
that are critical to the functioning and protection of a riparian
area.
{ - (3) 'Board' means the Oregon Watershed Enhancement Board
created under ORS 541.360. - }
{ - (4) - } { + (3) + } 'Capital expenditures' means direct
expenses related to:
(a) Personal property of a nonexpendable nature including items
that are not consumed in the normal course of operations, can
normally be used more than once, have a useful life of more than
two years and are for use in the enforcement of fish and wildlife
and habitat protection laws and regulations; or
(b) Projects that restore, enhance or protect fish and wildlife
habitat, watershed functions, native salmonid populations or
water quality, including but not limited to:
(A) Expenses of assessment, research, design or other technical
requirements for the implementation of a project;
(B) The acquisition of determinate interests, including fee and
less than fee interests, in land or water in order to protect
watershed resources, including appraisal costs and other costs
directly related to such acquisitions;
(C) Development, construction or implementation of a project to
restore, enhance or protect water quality, a watershed, fish or
wildlife, or riparian or other habitat;
(D) Technical support directly related to the implementation of
a project; and
(E) Monitoring or evaluation activities necessary to determine
the actual effectiveness of a project.
{ - (5) - } { + (4) + } 'Independent Multidisciplinary
Science Team ' means the scientific team of recognized experts in
fisheries, artificial propagation, stream ecology, forestry,
range, watershed and agricultural management created under ORS
541.409.
{ - (6) - } { + (5) + } 'Native' means indigenous to Oregon
and not introduced.
{ - (7) - } { + (6) + } 'Oregon Plan' means the guidance
statement and framework described in ORS 541.405.
{ - (8) - } { + (7) + } 'Protect' or 'protection' means to
minimize or mitigate adverse effects on salmonid and habitat to
the maximum extent practicable given the anticipated duration,
geographic scope and primary purpose of proposed activities.
{ - (9) - } { + (8) + } 'Restore' or 'restoration' means to
take actions likely to achieve sustainable population levels of
native fish or wildlife and their habitats.
{ - (10) - } { + (9) + } 'Riparian area' means a zone of
transition from an aquatic ecosystem to a terrestrial ecosystem,
dependent upon surface or subsurface water, that reveals through
the zone's existing or potential soil-vegetation complex the
influence of such surface or subsurface water. A riparian area
may be located adjacent to a lake, reservoir, estuary, pothole,
spring, bog, wet meadow, muskeg or ephemeral, intermittent or
perennial stream.
{ - (11) - } { + (10) + } 'Soil and water conservation
district' means a political subdivision of the state as described
in ORS 568.550.
{ - (12) - } { + (11) + } 'Stewardship' means the careful
and responsible management of the environment.
{ - (13) - } { + (12) + } 'Tribe' means a federally
recognized Indian tribe in Oregon.
{ - (14) - } { + (13) + } 'Watershed' means the entire land
area drained by a stream or system of connected streams such that
all streamflow originating in the area is discharged through a
single outlet.
{ - (15) - } { + (14) + } 'Watershed council' means a
voluntary local organization, designated by a local government
group convened by a county governing body, to address the goal of
sustaining natural resource and watershed protection, restoration
and enhancement within a watershed.
SECTION 1759. ORS 541.365 is amended to read:
541.365. (1) The { - Oregon Watershed Enhancement Board - }
{ + Oregon Department of Natural Resources + } shall conduct a
watershed enhancement program to benefit all users of the waters
of this state. The { - board - } { + department + } shall
conduct the program in a manner that:
(a) Provides the greatest possible opportunity for volunteer
participation to achieve the goals of the program; and
(b) Coordinates the information, data and data retrieval needs
of the natural resource agencies of the state with the State
Service Center for Geographic Information Systems.
(2) In order to effectuate the program described in this
section, the { - board - } { + department + } shall establish
protocols, policies and procedures necessary to integrate and
organize geographic information and make it available to persons
and entities involved in implementation of the Oregon Plan.
(3) In working with the State Service Center for Geographic
Information Systems, the { - board - } { + department + }
shall ensure that:
(a) Information received by the center is formatted in a manner
that results in an integrated geographic information system that
meets the needs of all local, state, regional, tribal and federal
entities involved in implementation of the Oregon Plan; and
(b) The data are available to local, state and federal agencies
and to any person implementing activities under the Oregon Plan.
(4) The program developed under this section shall include
development and implementation, in coordination with the natural
resource agencies of the state, of a statewide monitoring program
for activities conducted under the Oregon Plan.
SECTION 1760. ORS 541.368 is amended to read:
541.368. In cooperation with other state, interstate and
federal agencies, tribes, local governments, watershed councils,
soil and water conservation districts, not-for-profit
organizations and volunteer groups, the { - Oregon Watershed
Enhancement Board - } { + Oregon Department of Natural
Resources + } shall facilitate the implementation of the grant
programs established under ORS 541.351 to 541.415.
SECTION 1761. ORS 541.370 is amended to read:
541.370. (1) In carrying out the watershed enhancement program
{ - , the Oregon Watershed Enhancement Board - } { + required
by ORS 541.365, the Oregon Department of Natural Resources + }
shall:
{ - (a) Coordinate the board's funding of enhancement
projects with the activities of the Natural Resources Division
staff and other agencies, especially those agencies working
together through a system of coordinated resource management
planning. - }
{ - (b) Use the expertise of the appropriate state agency
according to the type of enhancement project. - }
{ - (c) - } { + (a) + } Provide educational and
informational materials to promote public awareness and
involvement in the watershed enhancement program.
{ - (d) - } { + (b) + } Coordinate and provide for or
arrange for assistance in the activities of persons, agencies or
political subdivisions developing local watershed enhancement
projects funded by the { - board - } { + department + }.
{ - (e) - } { + (c) + } Grant funds for the support of
watershed councils in assessing watershed conditions, developing
action plans, implementing projects and monitoring results and
for the implementation of watershed enhancement projects from
such moneys as may be available to the { - board - }
{ + department + } therefor.
{ - (f) - } { + (d) + } Develop and maintain a centralized
repository for information about the effects of watershed
enhancement and education projects.
{ - (g) - } { + (e) + } Give priority to proposed watershed
enhancement projects receiving funding or assistance from other
sources.
{ - (h) - } { + (f) + } Identify gaps in research or
available information about watershed health and enhancement.
{ - (i) - } { + (g) + } Cooperate with appropriate federal
entities to identify the needs and interests of the State of
Oregon so that federal plans and project schedules relating to
watershed enhancement incorporate the state's intent to the
fullest extent practicable.
{ - (j) - } { + (h) + } Encourage the use of nonstructural
methods to enhance the riparian areas and associated uplands of
Oregon's watersheds.
{ - (k) - } { + (i) + } Determine criteria for utilizing
the private sector, both not-for-profit and for-profit
organizations, to provide landowners with technical assistance to
help develop and implement conservation easements and resource
improvement projects.
(2) In accordance with ORS 541.351 to 541.415, the { - Oregon
Watershed Enhancement Board - } { + department + } shall
administer a watershed improvement grant program using funds from
the Watershed Improvement Grant Fund established under ORS
541.397, from the Restoration and Protection Subaccount
established under ORS 541.377 and from the Flexible Incentives
Account established under ORS 541.381.
{ - (3) To aid and advise the board in the performance of the
functions of the board, the board may establish such advisory and
technical committees as the board considers necessary. These
committees may be continuing or temporary. The board shall
determine the representation, membership, terms and organization
of the committees and shall appoint their members. The
chairperson is ex officio a member of each committee. - }
SECTION 1762. ORS 541.371 is amended to read:
541.371. (1) In addition to the duties set forth in ORS
541.370, in carrying out the provisions of ORS 541.351 to
541.415, the { - Oregon Watershed Enhancement Board - }
{ + Oregon Department of Natural Resources + }:
(a) Shall establish a framework for a locally based integrated
watershed planning and management process designed to assist
watershed councils and soil and water conservation districts and
to support the efforts of watershed councils and soil and water
conservation districts to work within the requirements of state
and federal laws without duplication of planning effort. The
framework shall include all of the following:
(A) Guidance and protocols for watershed assessments to
encourage consistent assessment methods across all watersheds and
agencies, including assessment of cumulative effects. At a
minimum, such guidance shall address the following plan
components:
(i) A description of the watershed;
(ii) An assessment of current watershed conditions and the
distribution and condition of habitat; and
(iii) Identification of conditions preventing watershed
restoration.
(B) Guidance on how to prepare watershed action plans. At a
minimum, such guidance shall address the following plan
components:
(i) Applicable water quality standards and native salmonid and
habitat recovery objectives;
(ii) Proposed measures needed to restore watershed health;
(iii) Timeline and budget estimates for implementation of
action measures in priority order; and
(iv) Monitoring and evaluation systems.
(b) May review plans, actions and rules of state agencies
pertaining to restoration and protection grants for the purpose
of coordinating the { - board's - } { + department's + }
grant program with other ongoing grant programs.
(c) Shall establish statewide and regional goals and priorities
that shall become the basis for funding decisions by the
{ - board - } { + department + }. In adopting such goals and
priorities, the
{ - board - } { + department + } shall adopt priorities for
grant funding based on the Oregon Plan and on measurable goals.
In carrying out this function, the { - board - }
{ + department + } shall consider local economic and social
impacts among the criteria.
(d) Shall support development and implementation of a system
that enables standardized collection, management and reporting of
natural resources information in Oregon, including water data,
geographic information system data and information on native fish
and wildlife and habitat.
(e) Shall promote the availability of information on the
effects of watershed enhancement.
(f) May not have regulatory or enforcement authority except for
the fiscal responsibilities described in ORS 541.351 to 541.415.
(2) In addition to the uses of grant funds described in ORS
541.399, in allocating grant funds under ORS 541.351 to 541.415
that are derived from the Restoration and Protection Subaccount,
the { - board - } { + department + }:
(a) May allocate funds to be used for staff for soil and water
conservation districts and watershed councils.
(b) May award funds for a specific project or program
application or for implementation of an approved action plan.
(3) To the maximum extent practicable, soil and water
conservation districts and watershed councils shall share
technical staff.
SECTION 1763. ORS 541.372 is amended to read:
541.372. (1) The { - Oregon Watershed Enhancement Board - }
{ + Oregon Department of Natural Resources + } may accept moneys
from any public or private source, including the federal
government, made available for the purpose of encouraging,
promoting and securing watershed enhancement or to facilitate and
assist in carrying out the functions of the { - board - }
{ + department + }, including administrative expenses, as
provided by law.
(2) All moneys received by the { - board - }
{ + department + } under this section shall be deposited in the
State Treasury and kept in separate accounts in the General Fund
designated according to the purposes for which moneys were made
available.
(3) Notwithstanding the provisions of ORS 291.238, all moneys
received under this section are continuously appropriated to the
{ - board - } { + department + } for the purpose for which
they were made available and shall be expended in accordance with
the terms and conditions upon which they were made available.
SECTION 1764. ORS 541.375 is amended to read:
541.375. (1) Any person, tribe, watershed council, soil and
water conservation district, community college, state institution
of higher education, independent not-for-profit institution of
higher education or political subdivision of this state that is
not a state agency may submit a request for funding for or for
advice and assistance in developing a project under ORS 541.351
to 541.415. A state agency or federal agency may apply for
funding under this section only as a coapplicant with one of the
other eligible entities.
(2) The request under subsection (1) of this section shall be
filed in the manner, be in the form and contain the information
required by the { - Oregon Watershed Enhancement Board - }
{ + Oregon Department of Natural Resources + }.
(3) The { - board - } { + department + } may establish a
grant program through soil and water conservation districts
organized under ORS 568.210 to 568.808 and 568.900 to 568.933
that provides funds for local implementation of watershed
enhancement, education and monitoring efforts.
(4) The { - board - } { + department + } may fund
implementation of action plans based on a watershed assessment
that addresses water quality and aquatic resources of the
watershed.
(5) A project may use mechanical, vegetative or structural
methods including, but not limited to, management techniques,
erosion control, streambank stabilization, forest, range or crop
land treatment, site specific in-stream structures, acquisitions
or leases of land or water rights from a willing owner, watershed
assessments, landowner incentives and action plan development,
implementation and monitoring.
(6) The actions of a soil and water conservation district
carried out pursuant to a grant program established by the
{ - board - } { + department + } under subsection (3) of this
section shall not be subject to review and approval by the
{ - Natural Resources Division - } { + department + } under ORS
561.400.
(7) The { - Oregon Watershed Enhancement Board - }
{ + department + } shall approve for funding only those projects
that:
(a) Are based on sound principles of watershed management;
(b) Use methods most adapted to the project locale;
(c) Meet the criteria established by the { - board - }
{ + department + } under ORS 541.396; and
(d) Contribute to either:
(A) The improved health of a stream, lake or reservoir and
toward the achievement of standards that satisfy the requirements
of the Federal Water Pollution Control Act (P.L. 92-500), as
amended; or
(B) The restoration of wildlife, habitat or native fish.
(8) The { - Oregon Watershed Enhancement Board - }
{ + department + } may fund a project for the restoration of a
riparian area or associated upland that is carried out in
conjunction with a storage structure. However, the
{ - board - } { + department + } shall not approve funding for
any proposed project that consists solely of construction of a
storage structure for out-of-stream use.
(9) The { - Oregon Watershed Enhancement Board - }
{ + department + } may fund projects involving the acquisition
of lands and waters, or interests therein from willing sellers,
for the purpose of maintaining or restoring watersheds, habitat
and native salmonids. Interests in these lands and waters may be
held by local, state and federal agencies, tribes, not-for-profit
land conservation organizations and trusts, state institutions of
higher education, independent not-for-profit institutions of
higher education or political subdivisions of this state, as long
as the entity continues to use the land or water for the purposes
specified under section 4b, Article XV of the Oregon
Constitution.
(10) If the { - Oregon Watershed Enhancement Board - }
{ + department + } approves funding for a project under this
section that requires the applicant to obtain a permit or license
from a local, state or federal agency or governing body, the
{ - board - } { + department + } shall not disburse any funds
to the applicant until the applicant presents evidence that the
agency has granted the permit or license.
SECTION 1765. ORS 541.376 is amended to read:
541.376. (1) Land purchased through a grant agreement with the
{ - Oregon Watershed Enhancement Board - } { + Oregon
Department of Natural Resources + } shall be subject to title
restrictions that give the { - board - } { + department + }
the authority to approve, approve with conditions or deny the
sale or transfer of the land. Specifically, the { - board - }
{ + department + } may require conditions on the sale or
transfer to:
(a) Ensure consistency with the intent of the original grant;
(b) Ensure the ability of the party receiving the land through
the sale or transfer to carry out the obligations under the grant
agreement; and
(c) Address the disposition of proceeds from the sale or
transfer, including any provisions for repayment, with interest,
of any grant funds.
(2) The { - board - } { + department + } may not allow a
sale or transfer that results in any profit to any person.
(3) The { - board - } { + department + } shall, by rule,
define 'profit ' for the purpose of not allowing sales or
transfers and shall specify the process and criteria that the
{ - board - } { + department + } will use in considering
whether to approve, approve with conditions or deny a sale or
transfer.
SECTION 1766. ORS 541.377 is amended to read:
541.377. (1) There is established in the State Treasury,
separate and distinct from the General Fund, the Parks and
Natural Resources Fund to be administered by the Oregon
Department of Administrative Services. All moneys transferred
from the State Lottery Fund and all other moneys authorized to be
transferred to the Parks and Natural Resources Fund from whatever
source are { + continuously + } appropriated
{ - continuously - } for the public purposes of restoring and
protecting Oregon's parks, beaches, watersheds and critical fish
and wildlife habitats. Fifteen percent of the net proceeds from
the Oregon State Lottery shall be deposited in the Parks and
Natural Resources Fund created under this subsection.
(2) Of the moneys deposited into the Parks and Natural
Resources Fund from the Oregon State Lottery, 50 percent shall be
deposited into a Parks Subaccount for the public purpose of
financing the protection, repair, operation, creation and
development of state parks, ocean shores, public beach access
areas, historic sites and recreation areas. The State Treasurer
may invest and reinvest the moneys in the Parks Subaccount as
provided in ORS 293.701 to 293.820. Interest from the moneys
deposited in the subaccount and earnings from investment of the
moneys in the subaccount shall be credited to the subaccount.
(3) All moneys in the Parks Subaccount for financing the
protection, repair, operation, creation and development of state
parks, ocean shores, public beach access areas, historic sites
and recreation areas shall be allocated to the { - State Parks
and Recreation Department - } { + Oregon Department of Natural
Resources + }. Such moneys shall be deposited into the
{ - State Parks and Recreation Department Fund established under
ORS 390.134 and shall be used - } { + Oregon Natural Resources
Fund. Moneys deposited in the fund under this subsection are
continuously appropriated to the Oregon Department of Natural
Resources + } for the following purposes:
(a) Maintaining, constructing, improving, developing, managing
and operating state park and recreation facilities, programs and
areas.
(b) Acquiring real property, or interest therein, deemed
necessary for the creation and operation of state parks, ocean
shores, public beach access areas, recreation areas and historic
sites or because of natural, scenic, cultural, historic and
recreational values.
(c) Operating grant programs for local government entities
deemed necessary to accomplish the public purposes of the Parks
and Natural Resources Fund.
(4) Of the moneys deposited into the Parks and Natural
Resources Fund from the Oregon State Lottery, 50 percent shall be
deposited into a Restoration and Protection Subaccount for the
public purpose of financing the restoration and protection of
native salmonid populations, watersheds, fish and wildlife
habitats and water quality in Oregon. The State Treasurer may
invest and reinvest the moneys in the Restoration and Protection
Subaccount as provided in ORS 293.701 to 293.820. Interest from
the moneys deposited in the subaccount and earnings from
investment of the moneys in the subaccount shall be credited to
the Restoration and Protection Research Fund created under ORS
541.378.
(5) The moneys in the Restoration and Protection Subaccount for
financing the restoration and protection of native salmonid
populations, watersheds, fish and wildlife habitats and water
quality shall be administered by the { - Oregon Watershed
Enhancement Board - } { + Oregon Department of Natural
Resources + } and shall be used for all of the following
purposes:
(a) Restoration and protection of watersheds and fish,
wildlife, riparian and native species and for habitat
conservation activities, including but not limited to planning,
coordination, assessment, implementation, restoration, inventory,
information management and monitoring activities.
(b) Watershed and riparian education efforts.
(c) Development and implementation of watershed and water
quality enhancement plans.
(d) Entering into agreements to obtain from willing owners
determinate interests in lands and waters that protect watershed
resources, including but not limited to fee simple interests in
land, leases of land or water or conservation easements.
(e) Enforcement of fish and wildlife and habitat protection
laws and regulations.
(6) Of the moneys deposited into the Restoration and Protection
Subaccount from the Oregon State Lottery, the { - Oregon
Watershed Enhancement Board - } { + Oregon Department of
Natural Resources + } shall deposit:
(a) Sixty-five percent of the funds into the Watershed
Improvement Grant Fund established under ORS 541.397 to be used
only for funding capital expenditure projects; and
(b) Thirty-five percent of the funds into the Watershed
Improvement Operating Fund established under ORS 541.379 to be
used for the purposes set forth in ORS 541.379 (1).
(7) The Legislative Assembly shall not limit expenditures from
the Parks and Natural Resources Fund. The Legislative Assembly
may appropriate other moneys or revenues to the Parks and Natural
Resources Fund.
SECTION 1767. ORS 541.378 is amended to read:
541.378. (1) The Restoration and Protection Research Fund is
established separate and distinct from the General Fund. Interest
earned by the Restoration and Protection Research Fund shall be
credited to the fund. Moneys credited to the fund are
continuously appropriated to the { - Oregon Watershed
Enhancement Board - } { + Oregon Department of Natural
Resources + } for the purpose of funding research and other
activities related to the restoration and protection of native
salmonid populations, watersheds, fish and wildlife habitats and
water quality, including but not limited to research, monitoring,
evaluation and assessment related to the Oregon Plan.
(2) All moneys received by the { - Oregon Watershed
Enhancement Board - } { + Oregon Department of Natural
Resources + } from interest earned on the Restoration and
Protection Subaccount of the Parks and Natural Resources Fund
created under ORS 541.377, from the Watershed Improvement
Operating Fund created under ORS 541.379 and from the Watershed
Improvement Grant Fund created under ORS 541.397 shall be
credited to the Restoration and Protection Research Fund. Moneys
credited to the fund and not expended by the completion of a
biennium shall remain in the fund.
SECTION 1768. ORS 541.379 is amended to read:
541.379. (1) The Watershed Improvement Operating Fund is
established in the State Treasury separate and distinct from the
General Fund. The Watershed Improvement Operating Fund shall
consist of all moneys placed in the fund as provided by law. All
moneys in the Watershed Improvement Operating Fund are
continuously appropriated for the following purposes:
(a) Operational activities of the { - Oregon Watershed
Enhancement Board - } { + Oregon Department of Natural
Resources + };
(b) Activities of state and local agencies and other public
entities related to the restoration and protection of native
salmonid populations, watersheds, fish and wildlife habitats and
water quality, including but not limited to activities under the
Oregon Plan;
(c) Watershed improvement grants described in ORS 541.399 and
541.401 that are not capital expenditures; and
(d) Watershed improvement grants described in ORS 541.399 and
541.401 that are capital expenditures.
(2) Interest accruing to the Watershed Improvement Operating
Fund shall be credited to the Restoration and Protection Research
Fund created under ORS 541.378. Funds appropriated and not
expended by the completion of a biennium shall remain in the
Watershed Improvement Operating Fund.
(3) The { - Oregon Watershed Enhancement Board created under
ORS 541.360 - } { + department + } shall administer the
Watershed Improvement Operating Fund.
(4) In addition to the funds made available for the purposes of
ORS 541.351 to 541.415 under ORS 541.399, the { - board - }
{ + department + } also may accept gifts and grants from any
public or private source for the purposes described in subsection
(1) of this section.
SECTION 1769. ORS 541.381 is amended to read:
541.381. (1) There is created a Flexible Incentives Account in
the State Treasury, separate and distinct from the General Fund.
Interest earned by the account shall be credited to the account.
The moneys in the account are continuously appropriated to the
{ - Oregon Watershed Enhancement Board - } { + Oregon
Department of Natural Resources + } for the purposes specified in
this section.
(2) The { - Oregon Watershed Enhancement Board - }
{ + Oregon Department of Natural Resources + } shall use the
Flexible Incentives Account to assist landowners in the
implementation of strategies intended to protect and restore
native species of fish, wildlife and plants and to maintain
long-term ecological health, diversity and productivity in a
manner consistent with statewide, regional or local conservation
plans. The { - board - } { + Oregon Department of Natural
Resources + } shall seek to fund those strategies that offer the
greatest public benefit at the lowest cost. The account may also
be used to fund activities to achieve the purposes of stewardship
agreements entered into under ORS 541.423 between a landowner, or
a representative of the landowner, and the State Department of
Agriculture or the { - State Board of Forestry - } { + Oregon
Department of Natural Resources + }.
(3) The account shall consist of moneys appropriated to it by
the Legislative Assembly and moneys provided to the
{ - board - } { + Oregon Department of Natural Resources + }
by federal, state, regional or local governments for the purposes
specified in this section. The
{ - board - } { + Oregon Department of Natural Resources + }
may accept private moneys in the form of gifts, grants and
bequests for deposit into the account.
SECTION 1770. ORS 541.384 is amended to read:
541.384. (1) The { - Oregon Watershed Enhancement Board - }
{ + Oregon Department of Natural Resources + } shall initiate a
watershed management program that relies on the establishment of
voluntary local watershed councils comprised of residents, state
and federal agency staff, members of federally recognized Indian
tribes and other citizens interested in the management of
watersheds and that provides for the development by these
partnerships of local plans that may include but are not limited
to the assessment of the watershed condition, the creation of a
watershed action plan and a strategy for implementing the action
plan. The program shall focus state resources on the achievement
of sustainable watershed health, including funding major projects
that contribute to the overall health of a watershed. In
addition, the { - board - } { + department + } shall fund
smaller, voluntary projects for watershed enhancement and for
restoration of riparian areas and associated uplands.
(2) In carrying out the program under subsection (1) of this
section, the { - board - } { + department + } may designate
high priority watersheds. However, the designation of high
priority watersheds is intended only as a management tool for
state agencies in allocating resources to support coordinated
watershed management activities. Such designation is not intended
to establish or confer any right, duty or authority, nor to have
any legal significance beyond that described in this section, nor
to discourage or prohibit the formation and function of voluntary
local watershed councils in other watersheds.
(3) The elected officials representing the appropriate local
government groups containing or within a proposed watershed
council area shall determine whether to participate in the
voluntary formation of a local watershed council. When multiple
local government groups are involved within an area that would be
served by a watershed council, the affected local government
groups shall together determine their respective roles and the
appropriate method for appointing members to a local watershed
council.
SECTION 1771. ORS 541.388 is amended to read:
541.388. (1) Local government groups are encouraged to form
voluntary local watershed councils in accordance with the
guidelines set forth in subsection (2) of this section. The
{ - Oregon Watershed Enhancement Board - } { + Oregon
Department of Natural Resources + } may work cooperatively with
any local watershed council that may be formed. Requests from
local watershed councils for state assistance shall be evaluated
on the basis of whether the requesting organization reflects the
interests of the affected watershed and the potential to protect
and enhance the quality of the watershed in question.
(2) Local watershed councils formed under subsection (1) of
this section shall consist of a majority of local residents,
including local officials. A watershed council may be a new or
existing organization as long as the council represents a balance
of interested and affected persons within the watershed and
assures a high level of citizen involvement in the development
and implementation of a watershed action program. A local
watershed council may include representatives of local
government, representatives of nongovernment organizations and
private citizens, including but not limited to:
(a) Representatives of local and regional boards, commissions,
districts and agencies;
(b) Representatives of federally recognized Indian tribes;
(c) Public interest group representatives;
(d) Private landowners;
(e) Industry representatives;
(f) Members of academic, scientific and professional
communities; and
(g) Representatives of state and federal agencies.
(3) If more than one watershed council exists in a county, each
watershed council shall periodically report the activities of the
council to the county governing body.
(4) The Oregon Department of Administrative Services may
provide to voluntary local watershed councils and their officers,
employees and agents acting within the scope of their employment
or duties, protection against liability as part of the insurance
provided to the { - Oregon Watershed Enhancement Board - }
{ + Oregon Department of Natural Resources + } pursuant to ORS
278.120 to 278.215. The { - Oregon Watershed Enhancement
Board - } { + Oregon Department of Natural Resources + }, after
consulting the Oregon Department of Administrative Services and
local watershed councils, shall establish guidelines for
liability coverage and limits of coverage. The Oregon Department
of Administrative Services shall determine any additional
contributions to be apportioned to the { - Oregon Watershed
Enhancement Board - } { + Oregon Department of Natural
Resources + } for extending insurance to voluntary local
watershed councils, and the { - Oregon Watershed Enhancement
Board - } { + Oregon Department of Natural Resources + } shall
pay the assessments from such moneys as may be available for
those assessments.
SECTION 1772. ORS 541.392 is amended to read:
541.392. (1) The { - Oregon Watershed Enhancement Board - }
{ + Oregon Department of Natural Resources + } shall report
biennially to the Legislative Assembly on the implementation of
the management program under ORS 541.384 and grants awarded under
ORS 541.399. The report shall include but need not be limited
to:
(a) An explanation of the effectiveness and workability of the
partnership process described in ORS 541.384;
(b) A description of any modifications to the process that have
been instituted;
(c) Recommendations concerning the need for future legislative
action; and
(d) Information about the use of moneys received by and
distributed by the { - board - } { + department + } under
section 4b, Article XV of the Oregon Constitution.
(2) The { - board - } { + department + } shall include with
each report under subsection (1) of this section a copy of each
audit completed pursuant to section 4c, Article XV of the Oregon
Constitution.
SECTION 1773. ORS 541.395 is amended to read:
541.395. { + In order to assist the Oregon Department of
Natural Resources in developing and maintaining a centralized
repository under ORS 541.370, the Department of Environmental
Quality, the State Department of Agriculture and the agricultural
extension service of Oregon State University shall provide the
Oregon Department of Natural Resources with a copy of any report
produced by the university that is related to enhancement or
restoration of riparian areas or associated uplands. + } { - In
order to assist the Oregon Watershed Enhancement Board in
developing and maintaining a centralized repository under ORS
541.370, the following agencies shall provide the board with a
copy of any report produced by the agency that is related to
enhancement or restoration of riparian areas or associated
uplands: - }
{ - (1) The Department of Environmental Quality. - }
{ - (2) The State Department of Fish and Wildlife. - }
{ - (3) The Water Resources Department. - }
{ - (4) The State Forestry Department. - }
{ - (5) The State Department of Agriculture. - }
{ - (6) The agricultural extension service of Oregon State
University. - }
SECTION 1774. ORS 541.396 is amended to read:
541.396. (1) In accordance with the applicable provisions of
ORS chapter 183, the { - Oregon Watershed Enhancement Board - }
{ + Oregon Department of Natural Resources + } shall adopt rules
and standards to carry out the watershed enhancement program.
(2) The rules and standards adopted by the { - board - }
{ + department + } under subsection (1) of this section shall
include, but need not be limited to:
(a) Grant application requirements and review and selection
criteria for projects to receive assistance or funding from the
{ - board - } { + department + }, including funding from the
Flexible Incentives Account established under ORS 541.381.
(b) Criteria for distributing to those entities specified in
ORS 541.375 those funds appropriated to the { - board - }
{ + department + } for funding projects. The criteria shall
include a process for periodic review of the distribution by the
appropriate legislative committee.
(c) Conditions for approval by the { - board - }
{ + department + } for implementation of a project including but
not limited to:
(A) Provisions satisfactory to the { - board - }
{ + department + } for inspection and evaluation of the
implementation of a project including all necessary agreements to
allow the { - board - } { + department + } and employees of
any cooperating agency providing staff services for the
{ - board - } { + department + } access to the project area;
(B) Provisions satisfactory to the { - board - }
{ + department + } for controlling the expenditure of and
accounting for any funds granted by the { - board - }
{ + department + } for implementation of the project;
(C) An agreement that those initiating the project will submit
all pertinent information and research gained from the project to
the { - board - } { + department + } for inclusion in the
centralized repository established by the { - board - }
{ + department + }; and
(D) Provisions for the continued maintenance of the portion of
the riparian area or associated uplands enhanced by the project.
SECTION 1775. ORS 541.397 is amended to read:
541.397. (1) The Watershed Improvement Grant Fund is
established separate and distinct from the General Fund. The
Watershed Improvement Grant Fund shall consist of all moneys
placed in the fund as provided by law. All moneys in the
Watershed Improvement Grant Fund are continuously appropriated to
fund watershed improvement grants described in ORS 541.399 and
541.401. Interest accruing to the Watershed Improvement Grant
Fund shall be credited to the Restoration and Protection Research
Fund created under ORS 541.378. Funds appropriated and not
expended by the completion of a biennium shall remain in the
Watershed Improvement Grant Fund.
(2) The { - Oregon Watershed Enhancement Board created under
ORS 541.360 - } { + Oregon Department of Natural Resources + }
shall administer the Watershed Improvement Grant Fund and provide
grants from the fund for the purposes described in ORS 541.399
and 541.401 in the manner described under ORS 541.399 and
541.401.
(3) In addition to the funds made available for the purposes of
ORS 541.351 to 541.415 under ORS 541.399, the { - board - }
{ + department + } also may accept gifts and grants from any
public or private source for the purpose of providing the grants
described in subsection (2) of this section.
SECTION 1776. ORS 541.401 is amended to read:
541.401. The { - Oregon Watershed Enhancement Board - }
{ + Oregon Department of Natural Resources + } may award funds
from the Watershed Improvement Grant Fund only for the purposes
listed in ORS 541.399. Any project that the { - board - }
{ + department + } approves for funding shall comply with the
following criteria:
(1) There is a matching contribution from other program funds,
in-kind services or other investment in the project; { + and + }
{ - (2) The project to be funded is reviewed and approved by
a technical committee in accordance with ORS 541.370 (3); and - }
{ - (3) - } { + (2) + } The project provides a public
benefit through improved:
(a) Water quality;
(b) Fish or wildlife habitat; or
(c) Public information or education on a watershed function.
SECTION 1777. ORS 541.420 is amended to read:
541.420. (1) The { - Oregon Watershed Enhancement Board - }
{ + Oregon Department of Natural Resources + } shall, by January
15 of each odd-numbered year, submit a report to the Governor and
to the appropriate committee or committees of the Legislative
Assembly that assesses the implementation and effectiveness of
the Oregon Plan in the state. The report shall address each
drainage basin in the state and shall include, but need not be
limited to:
(a) A status report on watershed and key habitat conditions in
the drainage basin based on available information;
(b) An assessment of data and information needs deemed critical
to monitoring and evaluating watershed and habitat enhancement
programs and efforts;
(c) An overview of state agency programs addressing watershed
conditions;
(d) An overview of voluntary restoration activities addressing
watershed conditions;
(e) A summary of investments made by the { - board - }
{ + department + } from funds received under section 4b, Article
XV of the Oregon Constitution, and all other sources; and
(f) The recommendations of the { - board - }
{ + department + } for enhancing the effectiveness of Oregon
Plan implementation in each drainage basin.
(2) In order to provide the { - board - } { + Oregon
Department of Natural Resources + } with the information
necessary to complete the report described in subsection (1) of
this section, each natural resources agency shall provide
information requested by the
{ - board - } { + department + } in the format and at the
times determined by the { - board - } { + department + }.
(3) For purposes of this section, 'natural resources agency'
includes:
(a) Department of Environmental Quality;
(b) State Department of Agriculture;
{ - (c) State Department of Fish and Wildlife; - }
{ - (d) State Forestry Department; - }
{ - (e) Department of State Lands; - }
{ - (f) Water Resources Department; - }
{ - (g) Department of Land Conservation and Development; - }
{ - (h) State Department of Geology and Mineral
Industries; - }
{ - (i) Oregon Watershed Enhancement Board; - }
{ - (j) - } { + (c) + } Fish and Wildlife Division of the
Department of State Police;
{ - (k) - } { + (d) + } Department of Transportation;
{ - (L) State Parks and Recreation Department; - }
{ - (m) - } { + (e) + } Oregon Business Development
Department;
{ - (n) - } { + (f) + } State Marine Board; and
{ - (o) - } { + (g) + } Any other state agency that is
required to manage, allocate or protect natural resources, either
as the primary responsibility of the agency or in conjunction
with the primary responsibilities of the agency.
(4) In addition to the report specified under subsection (1) of
this section, the { - Oregon Watershed Enhancement Board - }
{ + Oregon Department of Natural Resources + } shall report
regularly during the interim on the implementation of the Oregon
Plan to the appropriate legislative committee.
SECTION 1778. ORS 561.020 is amended to read:
561.020. (1) The State Department of Agriculture shall have
full responsibility and authority for all the inspectional,
regulatory and market development work provided for under the
provisions of all statutes which the department is empowered and
directed to enforce.
(2) The department shall encourage and work toward long-range
planning to develop and promote the agricultural resources of
Oregon that they may contribute as greatly as possible to the
future economy of the state.
(3) The Director of Agriculture shall coordinate any activities
of the department related to a watershed enhancement project
approved by the { - Oregon Watershed Enhancement Board - }
{ + Oregon Department of Natural Resources + } under ORS
541.375 with activities of other cooperating state and federal
agencies participating in the project.
(4) The Director of Agriculture shall conduct any activities of
the department in a manner consistent with the goal set forth in
ORS 468B.155.
SECTION 1779. ORS 561.362 is amended to read:
561.362. Oregon State University shall have full authority and
responsibility:
(1) For resident instruction in all branches of agriculture.
(2) For research and experimentation in all branches and phases
of agriculture as set forth in federal and state laws creating,
maintaining and defining the work of the agricultural experiment
stations.
(3) For educational and demonstrational work in all branches
and phases of agriculture under authority of all federal and
state laws creating, maintaining and defining the work of the
Agricultural Extension Service.
(4) For collection and dissemination of statistical information
bearing upon crop and market conditions and trends of
agricultural production, including agricultural outlook reports
and market news reports.
(5) To conduct educational work in the field of marketing,
which includes information, advice and assistance relative to
organizing and operating cooperative associations and marketing
agencies, in accordance with the division of functions set forth
in this chapter.
(6) For coordinating any activities of the agricultural
extension service related to a watershed enhancement project
approved by the { - Oregon Watershed Enhancement Board - }
{ + Oregon Department of Natural Resources + } under ORS 541.375
with activities of other cooperating state and federal agencies
participating in the project.
SECTION 1780. ORS 561.400 is amended to read:
561.400. (1) There is established within the State Department
of Agriculture a Natural Resources Division which shall have the
duties and powers conferred by subsection (2) of this section, by
ORS 568.210 to 568.808 and 568.900 to 568.933 and by the Director
of Agriculture. The administrator of the division shall be
appointed by the director under ORS 561.050 after consultation
with the Soil and Water Conservation Commission.
(2) In addition to other duties and powers, the division is
authorized:
(a) To review and approve or disapprove all projects,
practices, budgets, contracts or regulations of soil and water
conservation districts organized under ORS 568.300 to 568.790;
(b) To keep the directors of the soil and water conservation
districts informed of the activities and experiences of other
districts, to assist in the interchange of advice and information
among the districts, and to promote cooperation among the
districts;
(c) To coordinate, as much as possible, the various programs of
the soil and water conservation districts;
(d) To solicit the cooperation and assistance of any department
or agency of the United States or other department or agency of
this state;
(e) To disseminate information concerning the activities and
programs of soil and water conservation districts and encourage
formation of such districts in areas where they would be
desirable and feasible;
(f) To receive, from any source, materials, machinery and
equipment and to transfer such to any soil and water conservation
district under terms and conditions deemed appropriate, including
payment by the district for costs of delivery or use;
(g) To receive from any public or private source, donations,
gifts and grants for the furtherance of soil and water
conservation, the provisions of ORS 568.225 or the protection of
natural resources affecting agriculture, which moneys are
continuously appropriated to the department for the
administration of the Natural Resources Division and functions
related thereto and for furnishing support and financial
assistance for the projects and activities of soil and water
conservation districts or other projects and activities relating
to natural resources affecting agriculture or consistent with ORS
568.225;
(h) To establish the procedures for developing and implementing
extended stream bank erosion plans under ORS 561.403;
(i) To review and evaluate documents and proposals of the
federal government, agencies of the State of Oregon, counties,
cities, other governmental bodies or subdivisions thereof
relating to natural resources affecting agriculture or consistent
with ORS 568.225; and
(j) To conduct research in and assist in the development of
agricultural management procedures and practices relating to
natural resources for the prevention of soil erosion, water
contamination and air pollution or for the enhancement of water
quality and quantity and air quality.
(3) The administrator of the division shall coordinate any
activities of the Natural Resources Division related to a
watershed enhancement project approved by the { - Oregon
Watershed Enhancement Board - } { + Oregon Department of
Natural Resources + } under ORS 541.375 with activities of other
cooperating state and federal agencies participating in the
project.
(4) In addition to or in lieu of the coverage provided pursuant
to ORS 30.282 (4), the Oregon Department of Administrative
Services may provide to soil and water conservation districts and
their officers, employees and agents acting within the scope of
their employment or duties, protection against liability as part
of the insurance provided to the State Department of Agriculture
pursuant to ORS 278.120 to 278.215. The Oregon Department of
Administrative Services shall determine any additional
contributions to be apportioned to the State Department of
Agriculture under ORS 278.110 for extending insurance to soil and
water conservation districts, and the State Department of
Agriculture shall pay the assessments from such moneys as may be
available therefor.
{ +
STATE FORESTRY DEPARTMENT + }
{ +
(Abolishment and Transfer of + }
{ +
Duties, Functions and Powers) + }
SECTION 1781. { + (1) The State Forestry Department and the
State Board of Forestry are abolished. On the operative date of
this section, the tenure of office of the State Forester and the
members of the State Board of Forestry ceases.
(2)(a) All the duties, functions and powers of the State
Forestry Department are imposed upon, transferred to and vested
in the Oregon Department of Natural Resources.
(b) Where the law imposed the duty or function upon or vested
the power in the State Forester, the duty, function or power is
imposed upon, transferred to or vested in the Director of the
Oregon Department of Natural Resources.
(c) Where the law imposed the duty or function upon or vested
the power in the State Board of Forestry, the duty, function or
power is imposed upon, transferred to and vested in the Oregon
Natural Resources Commission. + }
{ +
(Transfer of Records, Property and Employees) + }
SECTION 1782. { + (1) The State Forester and the State Board
of Forestry shall:
(a) Deliver to the Oregon Department of Natural Resources all
records and property within the jurisdiction of the State
Forester or the board that relate to the duties, functions and
powers transferred by section 1781 of this 2011 Act; and
(b) Transfer to the Oregon Department of Natural Resources
those employees engaged primarily in the exercise of the duties,
functions and powers transferred by section 1781 of this 2011
Act.
(2) The Director of the Oregon Department of Natural Resources
and the Oregon Natural Resources Commission shall take possession
of the records and property, and shall take charge of the
employees and employ them in the exercise of the duties,
functions and powers transferred by section 1781 of this 2011
Act, without reduction of compensation but subject to change or
termination of employment or compensation as provided by law.
(3) The Governor shall resolve any dispute between the State
Forestry Department and the Oregon Department of Natural
Resources, or the State Board of Forestry and the Oregon Natural
Resources Commission, relating to transfers of records, property
and employees under this section, and the Governor's decision is
final. + }
{ +
(Transfer of Unexpended Revenues) + }
SECTION 1783. { + (1) The unexpended balances of amounts
authorized to be expended by the State Forestry Department for
the biennium beginning July 1, 2011, from revenues dedicated,
continuously appropriated, appropriated or otherwise made
available for the purpose of administering and enforcing the
duties, functions and powers transferred by section 1781 of this
2011 Act are transferred to and are available for expenditure by
the Oregon Department of Natural Resources for the biennium
beginning July 1, 2011, for the purpose of administering and
enforcing the duties, functions and powers transferred by section
1781 of this 2011 Act.
(2) The expenditure classifications, if any, established by
Acts authorizing or limiting expenditures by the State Forestry
Department remain applicable to expenditures by the Oregon
Department of Natural Resources under this section.
(3) The unexpended balances of amounts authorized to be
expended by the State Board of Forestry for the biennium
beginning July 1, 2011, from revenues dedicated, continuously
appropriated, appropriated or otherwise made available for the
purpose of administering and enforcing the duties, functions and
powers transferred by section 1781 of this 2011 Act are
transferred to and are available for expenditure by the Oregon
Natural Resources Commission for the biennium beginning July 1,
2011, for the purpose of administering and enforcing the duties,
functions and powers transferred by section 1781 of this 2011
Act.
(4) The expenditure classifications, if any, established by
Acts authorizing or limiting expenditures by the State Board of
Forestry remain applicable to expenditures by the Oregon Natural
Resources Commission under this section. + }
{ +
(Action, Proceeding and Prosecution) + }
SECTION 1784. { + The transfer of duties, functions and powers
to the Oregon Department of Natural Resources by section 1781 of
this 2011 Act does not affect any action, proceeding or
prosecution involving or with respect to such duties, functions
and powers begun before and pending at the time of the transfer,
except that:
(1) The Oregon Department of Natural Resources is substituted
for the State Forestry Department where the State Forestry
Department is involved in the action, proceeding or prosecution;
or
(2) The Oregon Natural Resources Commission is substituted for
the State Board of Forestry where the State Board of Forestry is
involved in the action, proceeding or prosecution. + }
{ +
(Liability, Duty and Obligation) + }
SECTION 1785. { + (1) Nothing in sections 1781 to 1787 of this
2011 Act, the amendments to statutes by sections 28 to 411, 422
to 576, 585 to 901, 912 to 1090, 1099 to 1112, 1122 to 1257, 1269
to 1749k, 1758 to 1780, 1791 to 2081 and 2091 to 2160 of this
2011 Act or the repeal of ORS 526.008, 526.009, 526.016, 526.031,
526.054, 526.625, 526.660 or 526.730 by section 2161 of this 2011
Act relieves a person of a liability, duty or obligation accruing
under or with respect to the duties, functions and powers
transferred by section 1781 of this 2011 Act. The Oregon
Department of Natural Resources may undertake the collection or
enforcement of any such liability, duty or obligation.
(2) The rights and obligations of the State Forestry Department
or the State Board of Forestry legally incurred under contracts,
leases and business transactions executed, entered into or begun
before the operative date of section 1781 of this 2011 Act are
transferred to the Oregon Department of Natural Resources or to
the Oregon Natural Resources Commission. For the purpose of
succession to these rights and obligations:
(a) The Oregon Department of Natural Resources is a
continuation of the State Forestry Department where the right or
obligation was incurred by the State Forestry Department; or
(b) The Oregon Natural Resources Commission is a continuation
of the State Board of Forestry where the right or obligation was
incurred by the State Board of Forestry. + }
{ +
(Rules) + }
SECTION 1786. { + (1) Notwithstanding the transfer of duties,
functions and powers by section 1781 of this 2011 Act, the rules
of the State Forestry Department, or of the State Board of
Forestry, in effect on the operative date of section 1781 of this
2011 Act continue in effect until superseded or repealed by rules
of the Oregon Department of Natural Resources or the Oregon
Natural Resources Commission.
(2) References in rules of the State Forestry Department to the
State Forestry Department, or to an officer or employee of the
State Forestry Department, are considered to be references to the
Oregon Department of Natural Resources or to an officer or
employee of the Oregon Department of Natural Resources.
(3) References in rules of the State Board of Forestry to the
State Board of Forestry, or to an officer or employee of the
State Board of Forestry, are considered to be references to the
Oregon Natural Resources Commission or to an officer or employee
of the Oregon Natural Resources Commission. + }
{ +
(References) + }
SECTION 1787. { + (1) Whenever, in any uncodified law or
resolution of the Legislative Assembly or in any rule, document,
record or proceeding authorized by the Legislative Assembly,
reference is made to the State Forestry Department, or to an
officer or employee of the State Forestry Department, the
reference is considered to be a reference to the Oregon
Department of Natural Resources or to an officer or employee of
the Oregon Department of Natural Resources.
(2) Whenever, in any uncodified law or resolution of the
Legislative Assembly or in any rule, document, record or
proceeding authorized by the Legislative Assembly, reference is
made to the State Board of Forestry, or to an officer or employee
of the State Board of Forestry, the reference is considered to be
a reference to the Oregon Natural Resources Commission or to an
officer or employee of the Oregon Natural Resources
Commission. + }
{ +
(Agency Name Change) + }
SECTION 1788. { + (1) For the purpose of harmonizing and
clarifying statutory law, the Legislative Counsel may substitute
for words designating the 'State Forestry Department,' wherever
they occur in statutory law, words designating the 'Oregon
Department of Natural Resources. '
(2) For the purpose of harmonizing and clarifying statutory
law, the Legislative Counsel may substitute for words designating
the 'State Forester,' wherever they occur in statutory law, words
designating the 'Director of the Oregon Department of Natural
Resources.' + }
{ +
(Account Name Change) + }
SECTION 1789. { + For the purpose of harmonizing and
clarifying statutory law, the Legislative Counsel may substitute
for words designating the 'State Forestry Department Account,'
wherever they occur in statutory law, words designating the
'Oregon Natural Resources Fund.' + }
{ +
(Board Name Change) + }
SECTION 1790. { + For the purpose of harmonizing and
clarifying statutory law, the Legislative Counsel may substitute
for words designating the 'State Board of Forestry,' wherever
they occur in statutory law, words designating the 'Oregon
Natural Resources Commission.' + }
{ +
(Conforming Amendments) + }
SECTION 1791. ORS 30.942 is amended to read:
30.942. (1) The State Department of Agriculture may adopt rules
to implement the provisions of ORS 30.930 to 30.947.
(2) The { - State Forestry Department - } { + Oregon
Department of Natural Resources + } may adopt rules to implement
the provisions of ORS 30.930 to 30.947.
SECTION 1792. ORS 93.270 is amended to read:
93.270. (1) A person conveying or contracting to convey fee
title to real property may not include in an instrument for that
purpose a provision:
(a) Restricting the use of the real property by any person or
group of persons by reason of race, color, religion, sex, sexual
orientation, national origin or disability.
(b) Restricting the use of the real property by any home or
facility that is licensed under ORS 443.400 to 443.455 or 443.705
to 443.825 to provide residential care alone or in conjunction
with treatment or training or a combination thereof.
(2) Any provision in an instrument executed in violation of
subsection (1) of this section is void and unenforceable.
(3) An instrument that contains a provision restricting the use
of real property in a manner listed in subsection (1)(b) of this
section does not give rise to any public or private right of
action to enforce the restriction.
(4)(a) An instrument that contains a provision restricting the
use of real property by requiring roofing materials with a lower
fire rating than that required in the state building code
established under ORS chapter 455 does not give rise to any
public or private right of action to enforce the restriction in
an area determined by a local jurisdiction as a wildfire hazard
zone. Prohibitions on public or private right of action under
this paragraph are limited solely to considerations of fire
rating.
(b) As used in this subsection, 'wildfire hazard zones' are
areas that are legally declared by a governmental agency having
jurisdiction over the area to have special hazards caused by a
combination of combustible natural fuels, topography and climatic
conditions that result in a significant hazard of catastrophic
fire over relatively long periods each year. Wildfire hazard
zones shall be determined using criteria established by the
{ - State Forestry Department - } { + Oregon Department of
Natural Resources + }.
SECTION 1793. ORS 93.710 is amended to read:
93.710. (1) Any instrument creating a license, easement, profit
a prendre, or a leasehold interest or oil, gas or other mineral
interest or estate in real property or an interest in real
property created by a land sale contract, or memorandum of such
instrument or contract, which is executed by the person from whom
the interest is intended to pass, and acknowledged or proved in
the manner provided for the acknowledgment or proof of other
conveyances, may be indexed and recorded in the records of deeds
of real property in the county where such real property is
located. Any instrument creating a mortgage or trust deed, or a
memorandum thereof, or assignment for security purposes relating
to any of the interests or estates in real property referred to
in this subsection, which is executed by the person from whom the
mortgage, trust deed, or assignment for security purposes is
intended to be given, and acknowledged or proved in the manner
provided for the acknowledgment or proof of other conveyances,
may be indexed and recorded in the records of mortgages of real
property in the county where such real property is located. Such
recordation, whether the instrument be recorded prior to or
subsequent to May 29, 1963, constitutes notice to third persons
of the rights of the parties under the instrument irrespective of
whether the party granted such interest or estate is in
possession of the real property. Any such instrument when so
acknowledged or proved, or certified in the manner prescribed by
law by any of the authorized officers, may be read in evidence
without further proof thereof.
(2) Any notice under ORS 527.710 or order under ORS 527.680 by
the { - State Forester - } { + Director of the Oregon
Department of Natural Resources + } requiring the reforestation
of specific lands may be indexed and recorded in the records of
deeds of real property in the county where such real property is
located. Such recordation constitutes notice to third persons of
the rights and obligations of the parties to the notice or order.
Any such notice or order when properly prepared in the manner
prescribed by law by any of the authorized officers may be read
in evidence without further proof thereof.
(3)(a) As used in this section, 'memorandum' means an
instrument that:
(A) Contains the date of the instrument being memorialized;
(B) Contains the names and addresses of the parties;
(C) Contains a legal description of the real property involved
and the nature of the interest created which is signed by the
person from whom the interest is intended to pass; and
(D) Is acknowledged or proved in the manner provided for the
acknowledgment or proof of deeds.
(b) In addition to the requirements of paragraph (a) of this
subsection, a memorandum of a mortgage or trust deed shall
contain:
(A) The legend 'Memorandum of Mortgage' or 'Memorandum of Trust
Deed' either in capital letters or underscored above the body of
the memorandum;
(B) A description of any collateral encumbered by the mortgage
or trust deed, other than the real property, that can be
perfected by filing in the real property records of the county in
which the collateral is situated;
(C) A description in general terms of the obligation or
obligations secured and a statement of the term or maturity date,
if any, of the obligation or obligations;
(D) A statement by the mortgagee or beneficiary that a complete
copy of the mortgage or trust deed is available upon written
request to the mortgagee or beneficiary; and
(E) If the mortgage or trust deed constitutes a line of credit
instrument as defined in ORS 86.155, the information required to
appear on the front page of the instrument under ORS 86.155
(1)(b).
(c) In addition to the requirements of paragraph (a) of this
subsection, a memorandum of an instrument conveying or
contracting to convey fee title to any real estate shall state on
its face the true and actual consideration paid for such transfer
as provided in ORS 93.030.
SECTION 1794. ORS 105.699 is amended to read:
105.699. The { - State Forester, under the general
supervision of the State Board of Forestry, - } { + Director of
the Oregon Department of Natural Resources + } may adopt any
rules considered necessary for the administration of the
provisions of ORS 105.672 to 105.696 on state land.
SECTION 1795. ORS 164.814 is amended to read:
164.814. { - No later than three months after September 9,
1995, the State Forester - } { + The Director of the Oregon
Department of Natural Resources + } shall develop a typical form
for the permit and document of sale required by ORS 164.813 and
for the records required by ORS 164.813 (3). The { - State
Forester - } { + director + } shall make copies of the forms
available. Use of the forms is not required.
SECTION 1796. ORS 181.637 is amended to read:
181.637. (1) The Board on Public Safety Standards and Training
shall establish the following policy committees:
(a) Corrections Policy Committee;
(b) Fire Policy Committee;
(c) Police Policy Committee;
(d) Telecommunications Policy Committee; and
(e) Private Security Policy Committee.
(2) The members of each policy committee shall select a
chairperson and vice chairperson for the policy committee. Only
members of the policy committee who are also members of the board
are eligible to serve as a chairperson or vice chairperson. The
vice chairperson may act as chairperson in the absence of the
chairperson.
(3) The Corrections Policy Committee consists of:
(a) All of the board members who represent the corrections
discipline;
(b) The chief administrative officer of the training division
of the Department of Corrections;
(c) A security manager from the Department of Corrections
recommended by the Director of the Department of Corrections; and
(d) The following, who may not be current board members,
appointed by the chairperson of the board:
(A) One person recommended by and representing the Oregon State
Sheriffs' Association;
(B) Two persons recommended by and representing the Oregon
Sheriff's Jail Command Council;
(C) One person recommended by and representing a statewide
association of community corrections directors;
(D) One nonmanagement corrections officer employed by the
Department of Corrections;
(E) One corrections officer who is a female, who is employed by
the Department of Corrections at a women's correctional facility
and who is a member of a bargaining unit; and
(F) Two nonmanagement corrections officers.
(4) The Fire Policy Committee consists of:
(a) All of the board members who represent the fire service
discipline; and
(b) The following, who may not be current board members,
appointed by the chairperson of the board:
(A) One person recommended by and representing a statewide
association of fire instructors;
(B) One person recommended by and representing a statewide
association of fire marshals;
(C) One person recommended by and representing community
college fire programs;
(D) One nonmanagement firefighter recommended by a statewide
organization of firefighters; and
(E) One person representing { - the forest protection
agencies and recommended by the State Forestry Department - }
{ + forest protection services and recommended by the Oregon
Department of Natural Resources + }.
(5) The Police Policy Committee consists of:
(a) All of the board members who represent the law enforcement
discipline; and
(b) The following, who may not be current board members,
appointed by the chairperson of the board:
(A) One person recommended by and representing the Oregon
Association Chiefs of Police;
(B) Two persons recommended by and representing the Oregon
State Sheriffs' Association;
(C) One command officer recommended by and representing the
Oregon State Police; and
(D) Three nonmanagement law enforcement officers.
(6) The Telecommunications Policy Committee consists of:
(a) All of the board members who represent the
telecommunications discipline; and
(b) The following, who may not be current board members,
appointed by the chairperson of the board:
(A) Two persons recommended by and representing a statewide
association of public safety communications officers;
(B) One person recommended by and representing the Oregon
Association Chiefs of Police;
(C) One person recommended by and representing the Oregon State
Police;
(D) Two persons representing telecommunicators;
(E) One person recommended by and representing the Oregon State
Sheriffs' Association;
(F) One person recommended by and representing the Oregon Fire
Chiefs Association;
(G) One person recommended by and representing the Emergency
Medical Services and Trauma Systems Program of the Oregon Health
Authority; and
(H) One person representing paramedics and recommended by a
statewide association dealing with fire medical issues.
(7) The Private Security Policy Committee consists of:
(a) All of the board members who represent the private security
industry; and
(b) The following, who may not be current board members,
appointed by the chairperson of the board:
(A) One person representing unarmed private security
professionals;
(B) One person representing armed private security
professionals;
(C) One person representing the health care industry;
(D) One person representing the manufacturing industry;
(E) One person representing the retail industry;
(F) One person representing the hospitality industry;
(G) One person representing private business or a governmental
entity that utilizes private security services;
(H) One person representing persons who monitor alarm systems;
(I) Two persons who are investigators licensed under ORS
703.430, one of whom is recommended by the Oregon State Bar and
one of whom is in private practice; and
(J) One person who represents the public at large and who is
not related within the second degree by affinity or consanguinity
to a person who is employed or doing business as a private
security professional or executive manager, as defined in ORS
181.870, or as an investigator, as defined in ORS 703.401.
(8) In making appointments to the policy committees under this
section, the chairperson of the board shall seek to reflect the
diversity of the state's population. An appointment made by the
chairperson of the board must be ratified by the board before the
appointment is effective. The chairperson of the board may remove
an appointed member for just cause. An appointment to a policy
committee that is based on the member's employment is
automatically revoked if the member changes employment. The
chairperson of the board shall fill a vacancy in the same manner
as making an initial appointment. The term of an appointed member
is two years. An appointed member may be appointed to a second
term.
(9) A policy committee may meet at such times and places as
determined by the policy committee in consultation with the
Department of Public Safety Standards and Training. A majority of
a policy committee constitutes a quorum to conduct business. A
policy committee may create subcommittees if needed.
(10)(a) Each policy committee shall develop policies,
requirements, standards and rules relating to its specific
discipline. A policy committee shall submit its policies,
requirements, standards and rules to the board for the board's
consideration. When a policy committee submits a policy,
requirement, standard or rule to the board for the board's
consideration, the board shall:
(A) Approve the policy, requirement, standard or rule;
(B) Disapprove the policy, requirement, standard or rule; or
(C) Defer a decision and return the matter to the policy
committee for revision or reconsideration.
(b) The board may defer a decision and return a matter
submitted by a policy committee under paragraph (a) of this
subsection only once. If a policy, requirement, standard or rule
that was returned to a policy committee is resubmitted to the
board, the board shall take all actions necessary to implement
the policy, requirement, standard or rule unless the board
disapproves the policy, requirement, standard or rule.
(c) Disapproval of a policy, requirement, standard or rule
under paragraph (a) or (b) of this subsection requires a
two-thirds vote by the members of the board.
(11) At any time after submitting a matter to the board, the
chairperson of the policy committee may withdraw the matter from
the board's consideration.
SECTION 1797. ORS 182.415 is amended to read:
182.415. As used in ORS 182.415 to 182.435 unless the context
requires otherwise:
(1) 'Furnishings' includes furniture usually used in connection
with occupancy of a household but does not include rugs,
draperies, ranges, refrigerators, washers, dryers or any item of
furnishings received by the state or one of its agencies as a
gift, nor does it include any furniture purchased for the
state-owned residence required in relation to the official duties
of an institutional executive or the Chancellor of the Oregon
University System prior to September 9, 1971.
(2) 'Housing' includes single and multiple family dwellings,
apartments, and manufactured dwellings and manufactured dwelling
pads, available on a monthly tenancy but does not include guard
stations maintained by the { - State Forestry Department - }
{ + Oregon Department of Natural Resources + } or dormitory
facilities at any state institution or at any state institution
of higher education.
(3) 'Dormitory' includes any facility that houses students and
those facilities used primarily for sleeping purposes by the
employees of the Department of Human Services or the Oregon
Health Authority.
(4) 'State agency' has the meaning given that term in ORS
291.002.
SECTION 1798. ORS 192.502, as amended by section 15, chapter
76, Oregon Laws 2010, is amended to read:
192.502. The following public records are exempt from
disclosure under ORS 192.410 to 192.505:
(1) Communications within a public body or between public
bodies of an advisory nature to the extent that they cover other
than purely factual materials and are preliminary to any final
agency determination of policy or action. This exemption shall
not apply unless the public body shows that in the particular
instance the public interest in encouraging frank communication
between officials and employees of public bodies clearly
outweighs the public interest in disclosure.
(2) Information of a personal nature such as but not limited to
that kept in a personal, medical or similar file, if public
disclosure would constitute an unreasonable invasion of privacy,
unless the public interest by clear and convincing evidence
requires disclosure in the particular instance. The party seeking
disclosure shall have the burden of showing that public
disclosure would not constitute an unreasonable invasion of
privacy.
(3) Public body employee or volunteer addresses, Social
Security numbers, dates of birth and telephone numbers contained
in personnel records maintained by the public body that is the
employer or the recipient of volunteer services. This exemption:
(a) Does not apply to the addresses, dates of birth and
telephone numbers of employees or volunteers who are elected
officials, except that a judge or district attorney subject to
election may seek to exempt the judge's or district attorney's
address or telephone number, or both, under the terms of ORS
192.445;
(b) Does not apply to employees or volunteers to the extent
that the party seeking disclosure shows by clear and convincing
evidence that the public interest requires disclosure in a
particular instance;
(c) Does not apply to a substitute teacher as defined in ORS
342.815 when requested by a professional education association of
which the substitute teacher may be a member; and
(d) Does not relieve a public employer of any duty under ORS
243.650 to 243.782.
(4) Information submitted to a public body in confidence and
not otherwise required by law to be submitted, where such
information should reasonably be considered confidential, the
public body has obliged itself in good faith not to disclose the
information, and when the public interest would suffer by the
disclosure.
(5) Information or records of the Department of Corrections,
including the State Board of Parole and Post-Prison Supervision,
to the extent that disclosure would interfere with the
rehabilitation of a person in custody of the department or
substantially prejudice or prevent the carrying out of the
functions of the department, if the public interest in
confidentiality clearly outweighs the public interest in
disclosure.
(6) Records, reports and other information received or compiled
by the Director of the Department of Consumer and Business
Services in the administration of ORS chapters 723 and 725 not
otherwise required by law to be made public, to the extent that
the interests of lending institutions, their officers, employees
and customers in preserving the confidentiality of such
information outweighs the public interest in disclosure.
(7) Reports made to or filed with the court under ORS 137.077
or 137.530.
(8) Any public records or information the disclosure of which
is prohibited by federal law or regulations.
(9)(a) Public records or information the disclosure of which is
prohibited or restricted or otherwise made confidential or
privileged under Oregon law.
(b) Subject to ORS 192.423, paragraph (a) of this subsection
does not apply to factual information compiled in a public record
when:
(A) The basis for the claim of exemption is ORS 40.225;
(B) The factual information is not prohibited from disclosure
under any applicable state or federal law, regulation or court
order and is not otherwise exempt from disclosure under ORS
192.410 to 192.505;
(C) The factual information was compiled by or at the direction
of an attorney as part of an investigation on behalf of the
public body in response to information of possible wrongdoing by
the public body;
(D) The factual information was not compiled in preparation for
litigation, arbitration or an administrative proceeding that was
reasonably likely to be initiated or that has been initiated by
or against the public body; and
(E) The holder of the privilege under ORS 40.225 has made or
authorized a public statement characterizing or partially
disclosing the factual information compiled by or at the
attorney's direction.
(10) Public records or information described in this section,
furnished by the public body originally compiling, preparing or
receiving them to any other public officer or public body in
connection with performance of the duties of the recipient, if
the considerations originally giving rise to the confidential or
exempt nature of the public records or information remain
applicable.
(11) Records of the Energy Facility Siting Council concerning
the review or approval of security programs pursuant to ORS
469.530.
(12) Employee and retiree address, telephone number and other
nonfinancial membership records and employee financial records
maintained by the Public Employees Retirement System pursuant to
ORS chapters 238 and 238A.
(13) Records of or submitted to the State Treasurer, the Oregon
Investment Council or the agents of the treasurer or the council
relating to active or proposed publicly traded investments under
ORS chapter 293, including but not limited to records regarding
the acquisition, exchange or liquidation of the investments. For
the purposes of this subsection:
(a) The exemption does not apply to:
(A) Information in investment records solely related to the
amount paid directly into an investment by, or returned from the
investment directly to, the treasurer or council; or
(B) The identity of the entity to which the amount was paid
directly or from which the amount was received directly.
(b) An investment in a publicly traded investment is no longer
active when acquisition, exchange or liquidation of the
investment has been concluded.
(14)(a) Records of or submitted to the State Treasurer, the
Oregon Investment Council, the Oregon Growth Account Board or the
agents of the treasurer, council or board relating to actual or
proposed investments under ORS chapter 293 or 348 in a privately
placed investment fund or a private asset including but not
limited to records regarding the solicitation, acquisition,
deployment, exchange or liquidation of the investments including
but not limited to:
(A) Due diligence materials that are proprietary to an
investment fund, to an asset ownership or to their respective
investment vehicles.
(B) Financial statements of an investment fund, an asset
ownership or their respective investment vehicles.
(C) Meeting materials of an investment fund, an asset ownership
or their respective investment vehicles.
(D) Records containing information regarding the portfolio
positions in which an investment fund, an asset ownership or
their respective investment vehicles invest.
(E) Capital call and distribution notices of an investment
fund, an asset ownership or their respective investment vehicles.
(F) Investment agreements and related documents.
(b) The exemption under this subsection does not apply to:
(A) The name, address and vintage year of each privately placed
investment fund.
(B) The dollar amount of the commitment made to each privately
placed investment fund since inception of the fund.
(C) The dollar amount of cash contributions made to each
privately placed investment fund since inception of the fund.
(D) The dollar amount, on a fiscal year-end basis, of cash
distributions received by the State Treasurer, the Oregon
Investment Council, the Oregon Growth Account Board or the agents
of the treasurer, council or board from each privately placed
investment fund.
(E) The dollar amount, on a fiscal year-end basis, of the
remaining value of assets in a privately placed investment fund
attributable to an investment by the State Treasurer, the Oregon
Investment Council, the Oregon Growth Account Board or the agents
of the treasurer, council or board.
(F) The net internal rate of return of each privately placed
investment fund since inception of the fund.
(G) The investment multiple of each privately placed investment
fund since inception of the fund.
(H) The dollar amount of the total management fees and costs
paid on an annual fiscal year-end basis to each privately placed
investment fund.
(I) The dollar amount of cash profit received from each
privately placed investment fund on a fiscal year-end basis.
(15) The monthly reports prepared and submitted under ORS
293.761 and 293.766 concerning the Public Employees Retirement
Fund and the Industrial Accident Fund may be uniformly treated as
exempt from disclosure for a period of up to 90 days after the
end of the calendar quarter.
(16) Reports of unclaimed property filed by the holders of such
property to the extent permitted by ORS 98.352.
(17)(a) The following records, communications and information
submitted to the Oregon Business Development Commission, the
Oregon Business Development Department, the State Department of
Agriculture, the Oregon Growth Account Board, the Port of
Portland or other ports, as defined in ORS 777.005, by applicants
for investment funds, loans or services including, but not
limited to, those described in ORS 285A.224:
(A) Personal financial statements.
(B) Financial statements of applicants.
(C) Customer lists.
(D) Information of an applicant pertaining to litigation to
which the applicant is a party if the complaint has been filed,
or if the complaint has not been filed, if the applicant shows
that such litigation is reasonably likely to occur; this
exemption does not apply to litigation which has been concluded,
and nothing in this subparagraph shall limit any right or
opportunity granted by discovery or deposition statutes to a
party to litigation or potential litigation.
(E) Production, sales and cost data.
(F) Marketing strategy information that relates to applicant's
plan to address specific markets and applicant's strategy
regarding specific competitors.
(b) The following records, communications and information
submitted to the State Department of Energy by applicants for tax
credits:
(A) Personal financial statements.
(B) Financial statements of applicants.
(C) Customer lists.
(D) Information of an applicant pertaining to litigation to
which the applicant is a party if the complaint has been filed,
or if the complaint has not been filed, if the applicant shows
that such litigation is reasonably likely to occur; this
exemption does not apply to litigation which has been concluded,
and nothing in this subparagraph shall limit any right or
opportunity granted by discovery or deposition statutes to a
party to litigation or potential litigation.
(E) Production, sales and cost data.
(F) Marketing strategy information that relates to applicant's
plan to address specific markets and applicant's strategy
regarding specific competitors.
(18) Records, reports or returns submitted by private concerns
or enterprises required by law to be submitted to or inspected by
a governmental body to allow it to determine the amount of any
transient lodging tax payable and the amounts of such tax payable
or paid, to the extent that such information is in a form which
would permit identification of the individual concern or
enterprise. Nothing in this subsection shall limit the use which
can be made of such information for regulatory purposes or its
admissibility in any enforcement proceedings. The public body
shall notify the taxpayer of the delinquency immediately by
certified mail. However, in the event that the payment or
delivery of transient lodging taxes otherwise due to a public
body is delinquent by over 60 days, the public body shall
disclose, upon the request of any person, the following
information:
(a) The identity of the individual concern or enterprise that
is delinquent over 60 days in the payment or delivery of the
taxes.
(b) The period for which the taxes are delinquent.
(c) The actual, or estimated, amount of the delinquency.
(19) All information supplied by a person under ORS 151.485 for
the purpose of requesting appointed counsel, and all information
supplied to the court from whatever source for the purpose of
verifying the financial eligibility of a person pursuant to ORS
151.485.
(20) Workers' compensation claim records of the Department of
Consumer and Business Services, except in accordance with rules
adopted by the Director of the Department of Consumer and
Business Services, in any of the following circumstances:
(a) When necessary for insurers, self-insured employers and
third party claim administrators to process workers' compensation
claims.
(b) When necessary for the director, other governmental
agencies of this state or the United States to carry out their
duties, functions or powers.
(c) When the disclosure is made in such a manner that the
disclosed information cannot be used to identify any worker who
is the subject of a claim.
(d) When a worker or the worker's representative requests
review of the worker's claim record.
(21) Sensitive business records or financial or commercial
information of the Oregon Health and Science University that is
not customarily provided to business competitors.
(22) Records of Oregon Health and Science University regarding
candidates for the position of president of the university.
(23) The records of a library, including:
(a) Circulation records, showing use of specific library
material by a named person;
(b) The name of a library patron together with the address or
telephone number of the patron; and
(c) The electronic mail address of a patron.
(24) The following records, communications and information
obtained by the Housing and Community Services Department in
connection with the department's monitoring or administration of
financial assistance or of housing or other developments:
(a) Personal and corporate financial statements and
information, including tax returns.
(b) Credit reports.
(c) Project appraisals.
(d) Market studies and analyses.
(e) Articles of incorporation, partnership agreements and
operating agreements.
(f) Commitment letters.
(g) Project pro forma statements.
(h) Project cost certifications and cost data.
(i) Audits.
(j) Project tenant correspondence.
(k) Personal information about a tenant.
(L) Housing assistance payments.
(25) Raster geographic information system (GIS) digital
databases, provided by private forestland owners or their
representatives, voluntarily and in confidence to the { - State
Forestry Department - } { + Oregon Department of Natural
Resources + }, that is not otherwise required by law to be
submitted.
(26) Sensitive business, commercial or financial information
furnished to or developed by a public body engaged in the
business of providing electricity or electricity services, if the
information is directly related to a transaction described in ORS
261.348, or if the information is directly related to a bid,
proposal or negotiations for the sale or purchase of electricity
or electricity services, and disclosure of the information would
cause a competitive disadvantage for the public body or its
retail electricity customers. This subsection does not apply to
cost-of-service studies used in the development or review of
generally applicable rate schedules.
(27) Sensitive business, commercial or financial information
furnished to or developed by the City of Klamath Falls, acting
solely in connection with the ownership and operation of the
Klamath Cogeneration Project, if the information is directly
related to a transaction described in ORS 225.085 and disclosure
of the information would cause a competitive disadvantage for the
Klamath Cogeneration Project. This subsection does not apply to
cost-of-service studies used in the development or review of
generally applicable rate schedules.
(28) Personally identifiable information about customers of a
municipal electric utility or a people's utility district or the
names, dates of birth, driver license numbers, telephone numbers,
electronic mail addresses or Social Security numbers of customers
who receive water, sewer or storm drain services from a public
body as defined in ORS 174.109. The utility or district may
release personally identifiable information about a customer, and
a public body providing water, sewer or storm drain services may
release the name, date of birth, driver license number, telephone
number, electronic mail address or Social Security number of a
customer, if the customer consents in writing or electronically,
if the disclosure is necessary for the utility, district or other
public body to render services to the customer, if the disclosure
is required pursuant to a court order or if the disclosure is
otherwise required by federal or state law. The utility, district
or other public body may charge as appropriate for the costs of
providing such information. The utility, district or other public
body may make customer records available to third party credit
agencies on a regular basis in connection with the establishment
and management of customer accounts or in the event such accounts
are delinquent.
(29) A record of the street and number of an employee's address
submitted to a special district to obtain assistance in promoting
an alternative to single occupant motor vehicle transportation.
(30) Sensitive business records, capital development plans or
financial or commercial information of Oregon Corrections
Enterprises that is not customarily provided to business
competitors.
(31) Documents, materials or other information submitted to the
Director of the Department of Consumer and Business Services in
confidence by a state, federal, foreign or international
regulatory or law enforcement agency or by the National
Association of Insurance Commissioners, its affiliates or
subsidiaries under ORS 86A.095 to 86A.198, 86A.990, 86A.992,
697.005 to 697.095, 697.602 to 697.842, 705.137, 717.200 to
717.320, 717.900 or 717.905, ORS chapter 59, 723, 725 or 726, the
Bank Act or the Insurance Code when:
(a) The document, material or other information is received
upon notice or with an understanding that it is confidential or
privileged under the laws of the jurisdiction that is the source
of the document, material or other information; and
(b) The director has obligated the Department of Consumer and
Business Services not to disclose the document, material or other
information.
(32) A county elections security plan developed and filed under
ORS 254.074.
(33) Information about review or approval of programs relating
to the security of:
(a) Generation, storage or conveyance of:
(A) Electricity;
(B) Gas in liquefied or gaseous form;
(C) Hazardous substances as defined in ORS 453.005 (7)(a), (b)
and (d);
(D) Petroleum products;
(E) Sewage; or
(F) Water.
(b) Telecommunication systems, including cellular, wireless or
radio systems.
(c) Data transmissions by whatever means provided.
(34) The information specified in ORS 25.020 (8) if the Chief
Justice of the Supreme Court designates the information as
confidential by rule under ORS 1.002.
(35)(a) Employer account records of the State Accident
Insurance Fund Corporation.
(b) As used in this subsection, 'employer account records '
means all records maintained in any form that are specifically
related to the account of any employer insured, previously
insured or under consideration to be insured by the State
Accident Insurance Fund Corporation and any information obtained
or developed by the corporation in connection with providing,
offering to provide or declining to provide insurance to a
specific employer. 'Employer account records' includes, but is
not limited to, an employer's payroll records, premium payment
history, payroll classifications, employee names and
identification information, experience modification factors, loss
experience and dividend payment history.
(c) The exemption provided by this subsection may not serve as
the basis for opposition to the discovery documents in litigation
pursuant to applicable rules of civil procedure.
(36)(a) Claimant files of the State Accident Insurance Fund
Corporation.
(b) As used in this subsection, 'claimant files' includes, but
is not limited to, all records held by the corporation pertaining
to a person who has made a claim, as defined in ORS 656.005, and
all records pertaining to such a claim.
(c) The exemption provided by this subsection may not serve as
the basis for opposition to the discovery documents in litigation
pursuant to applicable rules of civil procedure.
(37) Except as authorized by ORS 408.425, records that certify
or verify an individual's discharge or other separation from
military service.
SECTION 1799. ORS 197.455, as amended by section 1, chapter 32,
Oregon Laws 2010, is amended to read:
197.455. (1) A destination resort may be sited only on lands
mapped as eligible for destination resort siting by the affected
county. The county may not allow destination resorts approved
pursuant to ORS 197.435 to 197.467 to be sited in any of the
following areas:
(a) Within 24 air miles of an urban growth boundary with an
existing population of 100,000 or more unless residential uses
are limited to those necessary for the staff and management of
the resort.
(b)(A) On a site with 50 or more contiguous acres of unique or
prime farmland identified and mapped by the United States Natural
Resources Conservation Service, or its predecessor agency.
(B) On a site within three miles of a high value crop area
unless the resort complies with the requirements of ORS 197.445
(6) in which case the resort may not be closer to a high value
crop area than one-half mile for each 25 units of overnight
lodging or fraction thereof.
(c) On predominantly Cubic Foot Site Class 1 or 2 forestlands
as determined by the { - State Forestry Department - }
{ + Oregon Department of Natural Resources + }, which are not
subject to an approved goal exception.
(d) In the Columbia River Gorge National Scenic Area as defined
by the Columbia River Gorge National Scenic Act, P.L. 99-663.
(e) In an especially sensitive big game habitat area:
(A) As determined by the state { - Department of Fish and
Wildlife - } in July 1984, and in additional especially
sensitive big game habitat areas designated by a county in an
acknowledged comprehensive plan; or
(B) If the { - State Fish and Wildlife Commission - }
{ + Oregon Natural Resources Commission + } amends the 1984
determination with respect to an entire county and the county
amends its comprehensive plan to reflect the commission's
subsequent determination, as designated in the acknowledged
comprehensive plan.
(f) On a site in which the lands are predominantly classified
as being in Fire Regime Condition Class 3, unless the county
approves a wildfire protection plan that demonstrates the site
can be developed without being at a high overall risk of fire.
(2) In carrying out subsection (1) of this section, a county
shall adopt, as part of its comprehensive plan, a map consisting
of eligible lands within the county. The map must be based on
reasonably available information and may be amended pursuant to
ORS 197.610 to 197.625, but not more frequently than once every
30 months. The county shall develop a process for collecting and
processing concurrently all map amendments made within a 30-month
planning period. A map adopted pursuant to this section shall be
the sole basis for determining whether tracts of land are
eligible for destination resort siting pursuant to ORS 197.435 to
197.467.
SECTION 1800. ORS 238.005, as amended by section 8, chapter 1,
Oregon Laws 2010, is amended to read:
238.005. For purposes of this chapter:
(1) 'Annuity' means payments for life derived from
contributions made by a member as provided in this chapter.
(2) 'Board' means the Public Employees Retirement Board.
(3) 'Calendar year' means 12 calendar months commencing on
January 1 and ending on December 31 following.
(4) 'Continuous service' means service not interrupted for more
than five years, except that such continuous service shall be
computed without regard to interruptions in the case of:
(a) An employee who had returned to the service of the employer
as of January 1, 1945, and who remained in that employment until
having established membership in the Public Employees Retirement
System.
(b) An employee who was in the armed services on January 1,
1945, and returned to the service of the employer within one year
of the date of being otherwise than dishonorably discharged and
remained in that employment until having established membership
in the Public Employees Retirement System.
(5) 'Creditable service' means any period of time during which
an active member is being paid a salary by a participating public
employer and for which benefits under this chapter are funded by
employer contributions and earnings on the fund. For purposes of
computing years of 'creditable service,' full months and major
fractions of a month shall be considered to be one-twelfth of a
year and shall be added to all full years. ' Creditable service'
includes all retirement credit received by a member.
(6) 'Earliest service retirement age' means the age attained by
a member when the member could first make application for
retirement under the provisions of ORS 238.280.
(7) 'Employee' includes, in addition to employees, public
officers, but does not include:
(a) Persons engaged as independent contractors.
(b) Seasonal, emergency or casual workers whose periods of
employment with any public employer or public employers do not
total 600 hours in any calendar year.
(c) Persons, other than workers in the Oregon Industries for
the Blind under ORS 346.190, provided sheltered employment or
made-work by a public employer in an employment or industries
program maintained for the benefit of such persons.
(d) Persons employed and paid from federal funds received under
the Emergency Job and Unemployment Assistance Act of 1974 (Public
Law 93-567) or any other federal program intended primarily to
alleviate unemployment. However, any such person shall be
considered an 'employee' if not otherwise excluded by paragraphs
(a) to (c) of this subsection and the public employer elects to
have the person so considered by an irrevocable written notice to
the board.
(e) Persons who are employees of a railroad, as defined in ORS
824.020, and who, as such employees, are included in a retirement
plan under federal railroad retirement statutes. This paragraph
shall be deemed to have been in effect since the inception of the
system.
(8) 'Final average salary' means whichever of the following is
greater:
(a) The average salary per calendar year paid by one or more
participating public employers to an employee who is an active
member of the system in three of the calendar years of membership
before the effective date of retirement of the employee, in which
three years the employee was paid the highest salary. The three
calendar years in which the employee was paid the largest total
salary may include calendar years in which the employee was
employed for less than a full calendar year. If the number of
calendar years of active membership before the effective date of
retirement of the employee is three or fewer, the final average
salary for the employee is the average salary per calendar year
paid by one or more participating public employers to the
employee in all of those years, without regard to whether the
employee was employed for the full calendar year.
(b) One-third of the total salary paid by a participating
public employer to an employee who is an active member of the
system in the last 36 calendar months of active membership before
the effective date of retirement of the employee.
(9) 'Firefighter' does not include a volunteer firefighter, but
does include:
(a) The State Fire Marshal, the chief deputy fire marshal and
deputy state fire marshals; and
(b) An employee of the { - State Forestry Department who is
certified by the State Forester - } { + Oregon Department of
Natural Resources who is certified by the Director of the Oregon
Department of Natural Resources + } as a professional wildland
firefighter and whose primary duties include the abatement of
uncontrolled fires as described in ORS 477.064.
(10) 'Fiscal year' means 12 calendar months commencing on July
1 and ending on June 30 following.
(11) 'Fund' means the Public Employees Retirement Fund.
(12)(a) 'Member' means a person who has established membership
in the system and whose membership has not been terminated as
described in ORS 238.095. 'Member' includes active, inactive and
retired members.
(b) 'Active member' means a member who is presently employed by
a participating public employer in a qualifying position and who
has completed the six-month period of service required by ORS
238.015.
(c) 'Inactive member' means a member who is not employed in a
qualifying position, whose membership has not been terminated in
the manner described by ORS 238.095, and who is not retired for
service or disability.
(d) 'Retired member' means a member who is retired for service
or disability.
(13)(a) 'Member account' means the regular account and the
variable account.
(b) 'Regular account' means the account established for each
active and inactive member under ORS 238.250.
(c) 'Variable account' means the account established for a
member who participates in the Variable Annuity Account under ORS
238.260.
(14) 'Normal retirement age' means:
(a) For a person who establishes membership in the system
before January 1, 1996, as described in ORS 238.430, 55 years of
age if the employee retires at that age as a police officer or
firefighter or 58 years of age if the employee retires at that
age as other than a police officer or firefighter.
(b) For a person who establishes membership in the system on or
after January 1, 1996, as described in ORS 238.430, 55 years of
age if the employee retires at that age as a police officer or
firefighter or 60 years of age if the employee retires at that
age as other than a police officer or firefighter.
(15) 'Pension' means annual payments for life derived from
contributions by one or more public employers.
(16) 'Police officer' includes:
(a) Employees of institutions defined in ORS 421.005 as
Department of Corrections institutions whose duties, as assigned
by the Director of the Department of Corrections, include the
custody of persons committed to the custody of or transferred to
the Department of Corrections and employees of the Department of
Corrections who were classified as police officers on or before
July 27, 1989, whether or not such classification was authorized
by law.
(b) Employees of the Department of State Police who are
classified as police officers by the Superintendent of State
Police.
(c) Employees of the Oregon Liquor Control Commission who are
classified as enforcement officers by the administrator of the
commission.
(d) Sheriffs and those deputy sheriffs or other employees of a
sheriff whose duties, as classified by the sheriff, are the
regular duties of police officers or corrections officers.
(e) Police chiefs and police personnel of a city who are
classified as police officers by the council or other governing
body of the city.
(f) Parole and probation officers employed by the Department of
Corrections, parole and probation officers who are transferred to
county employment under ORS 423.549 and adult parole and
probation officers, as defined in ORS 181.610, who are classified
as police officers for the purposes of this chapter by the county
governing body. If a county classifies adult parole and probation
officers as police officers for the purposes of this chapter, and
the employees so classified are represented by a labor
organization, any proposal by the county to change that
classification or to cease to classify adult parole and probation
officers as police officers for the purposes of this chapter is a
mandatory subject of bargaining.
(g) Police officers appointed under ORS 276.021 or 276.023.
(h) Employees of the Port of Portland who are classified as
airport police by the Board of Commissioners of the Port of
Portland.
(i) Employees of the State Department of Agriculture who are
classified as livestock police officers by the Director of
Agriculture.
(j) Employees of the Department of Public Safety Standards and
Training who are classified by the department as other than
secretarial or clerical personnel.
(k) Investigators of the Criminal Justice Division of the
Department of Justice.
(L) Corrections officers as defined in ORS 181.610.
(m) Employees of the Oregon State Lottery Commission who are
classified by the Director of the Oregon State Lottery as
enforcement agents pursuant to ORS 461.110.
(n) The Director of the Department of Corrections.
(o) An employee who for seven consecutive years has been
classified as a police officer as defined by this section, and
who is employed or transferred by the Department of Corrections
to fill a position designated by the Director of the Department
of Corrections as being eligible for police officer status.
(p) An employee of the Department of Corrections classified as
a police officer on or prior to July 27, 1989, whether or not
that classification was authorized by law, as long as the
employee remains in the position held on July 27, 1989. The
initial classification of an employee under a system implemented
pursuant to ORS 240.190 does not affect police officer status.
(q) Employees of a school district who are appointed and duly
sworn members of a law enforcement agency of the district as
provided in ORS 332.531 or otherwise employed full-time as police
officers commissioned by the district.
(r) Employees at youth correction facilities and juvenile
detention facilities under ORS 419A.050, 419A.052 and 420.005 to
420.915 who are required to hold valid Oregon teaching licenses
and who have supervisory, control or teaching responsibilities
over juveniles committed to the custody of the Department of
Corrections or the Oregon Youth Authority.
(s) Employees at youth correction facilities as defined in ORS
420.005 whose primary job description involves the custody,
control, treatment, investigation or supervision of juveniles
placed in such facilities.
(t) Employees of the Oregon Youth Authority who are classified
as juvenile parole and probation officers.
(17) 'Public employer' means the state, one of its agencies,
any city, county, or municipal or public corporation, any
political subdivision of the state or any instrumentality
thereof, or an agency created by one or more such governmental
organizations to provide governmental services. For purposes of
this chapter, such agency created by one or more governmental
organizations is a governmental instrumentality and a legal
entity with power to enter into contracts, hold property and sue
and be sued.
(18) 'Prior service credit' means credit provided under ORS
238.442 or under ORS 238.225 (2) to (6) (1999 Edition).
(19) 'Qualifying position' means one or more jobs with one or
more participating public employers in which an employee performs
600 or more hours of service in a calendar year, excluding any
service in a job for which a participating public employer does
not provide benefits under this chapter pursuant to an
application made under ORS 238.035.
(20) 'Retirement credit' means a period of time that is treated
as creditable service for the purposes of this chapter.
(21)(a) 'Salary' means the remuneration paid an employee in
cash out of the funds of a public employer in return for services
to the employer, plus the monetary value, as determined by the
Public Employees Retirement Board, of whatever living quarters,
board, lodging, fuel, laundry and other advantages the employer
furnishes the employee in return for services.
(b) 'Salary' includes but is not limited to:
(A) Payments of employee and employer money into a deferred
compensation plan, which are deemed salary paid in each month of
deferral;
(B) The amount of participation in a tax-sheltered or deferred
annuity, which is deemed salary paid in each month of
participation;
(C) Retroactive payments described in section 7, chapter 1,
Oregon Laws 2010; and
(D) Wages of a deceased member paid to a surviving spouse or
dependent children under ORS 652.190.
(c) 'Salary' or 'other advantages' does not include:
(A) Travel or any other expenses incidental to employer's
business which is reimbursed by the employer;
(B) Payments for insurance coverage by an employer on behalf of
employee or employee and dependents, for which the employee has
no cash option;
(C) Payments made on account of an employee's death;
(D) Any lump sum payment for accumulated unused sick leave;
(E) Any accelerated payment of an employment contract for a
future period or an advance against future wages;
(F) Any retirement incentive, retirement severance pay,
retirement bonus or retirement gratuitous payment;
(G) Payments for periods of leave of absence after the date the
employer and employee have agreed that no future services
qualifying pursuant to ORS 238.015 (3) will be performed, except
for sick leave and vacation;
(H) Payments for instructional services rendered to
institutions of the Oregon University System or the Oregon Health
and Science University when such services are in excess of
full-time employment subject to this chapter. A person employed
under a contract for less than 12 months is subject to this
subparagraph only for the months to which the contract pertains;
or
(I) Payments made by an employer for insurance coverage
provided to a domestic partner of an employee.
(22) 'School year' means the period beginning July 1 and ending
June 30 next following.
(23) 'System' means the Public Employees Retirement System.
(24) 'Vested' means being an active member of the system in
each of five calendar years.
(25) 'Volunteer firefighter' means a firefighter whose position
normally requires less than 600 hours of service per year.
SECTION 1801. ORS 238A.005, as amended by section 9, chapter 1,
Oregon Laws 2010, and section 1, chapter 82, Oregon Laws 2010, is
amended to read:
238A.005. For the purposes of this chapter:
(1) 'Active member' means a member of the pension program or
the individual account program of the Oregon Public Service
Retirement Plan who is actively employed in a qualifying
position.
(2) 'Actuarial equivalent' means a payment or series of
payments having the same value as the payment or series of
payments replaced, computed on the basis of interest rate and
mortality assumptions adopted by the board.
(3) 'Board' means the Public Employees Retirement Board.
(4) 'Eligible employee' means a person who performs services
for a participating public employer, including elected officials
other than judges. 'Eligible employee' does not include:
(a) Persons engaged as independent contractors;
(b) Aliens working under a training or educational visa;
(c) Persons, other than workers in the Industries for the Blind
Program under ORS 346.190, provided sheltered employment or
make-work by a public employer;
(d) Persons categorized by a participating public employer as
student employees;
(e) Any person who is an inmate of a state institution;
(f) Employees of foreign trade offices of the Oregon Business
Development Department who live and perform services in foreign
countries under the provisions of ORS 285A.075 (1)(g);
(g) An employee actively participating in an alternative
retirement program established under ORS 353.250 or an optional
retirement plan established under ORS 341.551;
(h) Employees of the Oregon University System who are actively
participating in an optional retirement plan offered under ORS
243.800;
(i) Any employee who belongs to a class of employees that was
not eligible on August 28, 2003, for membership in the system
under the provisions of ORS chapter 238 or other law;
(j) Any person who belongs to a class of employees who are not
eligible to become members of the Oregon Public Service
Retirement Plan under the provisions of ORS 238A.070 (2);
(k) Any person who is retired under ORS 238A.100 to 238A.245 or
ORS chapter 238 and who continues to receive retirement benefits
while employed; and
(L) Judges.
(5) 'Firefighter' means:
(a) A person employed by a local government, as defined in ORS
174.116, whose primary job duties include the fighting of fires;
(b) The State Fire Marshal, the chief deputy state fire marshal
and deputy state fire marshals; and
(c) An employee of the { - State Forestry Department who is
certified by the State Forester - } { + Oregon Department of
Natural Resources who is certified by the Director of the Oregon
Department of Natural Resources + } as a professional wildland
firefighter and whose primary duties include the abatement of
uncontrolled fires as described in ORS 477.064.
(6) 'Fund' means the Public Employees Retirement Fund.
(7)(a) 'Hour of service' means:
(A) An hour for which an eligible employee is directly or
indirectly paid or entitled to payment by a participating public
employer for performance of duties in a qualifying position; and
(B) An hour of vacation, holiday, illness, incapacity, jury
duty, military duty or authorized leave during which an employee
does not perform duties but for which the employee is directly or
indirectly paid or entitled to payment by a participating public
employer for services in a qualifying position, as long as the
hour is within the number of hours regularly scheduled for the
performance of duties during the period of vacation, holiday,
illness, incapacity, jury duty, military duty or authorized
leave.
(b) 'Hour of service' does not include any hour for which
payment is made or due under a plan maintained solely for the
purpose of complying with applicable workers' compensation laws
or unemployment compensation laws.
(8) 'Inactive member' means a member of the pension program or
the individual account program of the Oregon Public Service
Retirement Plan whose membership has not been terminated, who is
not a retired member and who is not employed in a qualifying
position.
(9) 'Individual account program' means the defined contribution
individual account program of the Oregon Public Service
Retirement Plan established under ORS 238A.025.
(10) 'Member' means an eligible employee who has established
membership in the pension program or the individual account
program of the Oregon Public Service Retirement Plan and whose
membership has not been terminated under ORS 238A.110 or
238A.310.
(11) 'Participating public employer' means a public employer as
defined in ORS 238.005 that provides retirement benefits for
employees of the public employer under the system.
(12) 'Pension program' means the defined benefit pension
program of the Oregon Public Service Retirement Plan established
under ORS 238A.025.
(13) 'Police officer' means a police officer as described in
ORS 238.005.
(14) 'Qualifying position' means one or more jobs with one or
more participating public employers in which an eligible employee
performs 600 or more hours of service in a calendar year,
excluding any service in a job for which benefits are not
provided under the Oregon Public Service Retirement Plan pursuant
to ORS 238A.070 (2).
(15) 'Retired member' means a pension program member who is
receiving a pension as provided in ORS 238A.180 to 238A.195.
(16)(a) 'Salary' means the remuneration paid to an active
member in return for services to the participating public
employer, including remuneration in the form of living quarters,
board or other items of value, to the extent the remuneration is
includable in the employee's taxable income under Oregon law.
Salary includes the additional amounts specified in paragraph (b)
of this subsection, but does not include the amounts specified in
paragraph (c) of this subsection, regardless of whether those
amounts are includable in taxable income.
(b) 'Salary' includes the following amounts:
(A) Payments of employee and employer money into a deferred
compensation plan that are made at the election of the employee.
(B) Contributions to a tax-sheltered or deferred annuity that
are made at the election of the employee.
(C) Any amount that is contributed to a cafeteria plan or
qualified transportation fringe benefit plan by the employer at
the election of the employee and that is not includable in the
taxable income of the employee by reason of 26 U.S.C. 125 or
132(f)(4), as in effect on December 31, 2009.
(D) Any amount that is contributed to a cash or deferred
arrangement by the employer at the election of the employee and
that is not included in the taxable income of the employee by
reason of 26 U.S.C. 402(e)(3), as in effect on December 31, 2009.
(E) Retroactive payments described in section 7, chapter 1,
Oregon Laws 2010.
(F) The amount of an employee contribution to the individual
account program that is paid by the employer and deducted from
the compensation of the employee, as provided under ORS 238A.335
(1) and (2)(a).
(G) The amount of an employee contribution to the individual
account program that is not paid by the employer under ORS
238A.335.
(H) Wages of a deceased member paid to a surviving spouse or
dependent children under ORS 652.190.
(c) 'Salary' does not include the following amounts:
(A) Travel or any other expenses incidental to employer's
business which is reimbursed by the employer.
(B) Payments made on account of an employee's death.
(C) Any lump sum payment for accumulated unused sick leave,
vacation leave or other paid leave.
(D) Any severance payment, accelerated payment of an employment
contract for a future period or advance against future wages.
(E) Any retirement incentive, retirement bonus or retirement
gratuitous payment.
(F) Payment for a leave of absence after the date the employer
and employee have agreed that no future services in a qualifying
position will be performed.
(G) Payments for instructional services rendered to
institutions of the Oregon University System or the Oregon Health
and Science University when those services are in excess of
full-time employment subject to this chapter. A person employed
under a contract for less than 12 months is subject to this
subparagraph only for the months covered by the contract.
(H) The amount of an employee contribution to the individual
account program that is paid by the employer and is not deducted
from the compensation of the employee, as provided under ORS
238A.335 (1) and (2)(b).
(I) Any amount in excess of $200,000 for a calendar year. If
any period over which salary is determined is less than 12
months, the $200,000 limitation for that period shall be
multiplied by a fraction, the numerator of which is the number of
months in the determination period and the denominator of which
is 12. The board shall adopt rules adjusting this dollar limit to
incorporate cost-of-living adjustments authorized by the Internal
Revenue Service.
(17) 'System' means the Public Employees Retirement System.
SECTION 1802. ORS 272.050 is amended to read:
272.050. Acquisition authorized under ORS 272.040 shall be
contingent on the consent of the governing body of the county
wherein such tract or any portion thereof is situated and such
consent must be given by an order duly made and entered in the
records of such governing body and a certified copy thereof
transmitted to the { - State Forester - } { + Director of the
Oregon Department of Natural Resources + }.
SECTION 1803. ORS 275.080 is amended to read:
275.080. (1) The governing body of a county may sell in the
manner provided for sale of county land under ORS 275.120,
275.140 to 275.160 and 275.180 to 275.260, and convey to any
person or corporation impounding and selling water to the public,
any lands acquired by such county through foreclosure of tax
liens or otherwise, when, in the discretion of the governing body
of the county, the conveyance is necessary for the preservation
or protection of any watershed from which water is being
impounded and sold to the public by such person or corporation.
(2) Legal title to timber on such lands shall remain in the
county and such timber shall not be removed therefrom except with
the express written consent of and under the direct supervision
of the { - State Board of Forestry - } { + Oregon Natural
Resources Commission + }.
(3) Should any such lands so conveyed cease to be used to
preserve and protect the watershed for which it was conveyed, or
if the person or corporation does not take water from the
watershed for a period of one year, legal title to such land
shall immediately revert to and revest in the county without the
necessity of reentry.
SECTION 1804. ORS 279B.020 is amended to read:
279B.020. (1) When labor is employed by a contracting agency
through a contractor, a person may not be required or permitted
to labor more than 10 hours in any one day, or 40 hours in any
one week, except in cases of necessity or emergency or when the
public policy absolutely requires it, in which event, the person
so employed for excessive hours shall receive at least time and a
half pay:
(a)(A) For all overtime in excess of eight hours in any one day
or 40 hours in any one week when the work week is five
consecutive days, Monday through Friday; or
(B) For all overtime in excess of 10 hours in any one day or 40
hours in any one week when the work week is four consecutive
days, Monday through Friday; and
(b) For all work performed on Saturday and on the following
legal holidays:
(A) Each Sunday.
(B) New Year's Day on January 1.
(C) Memorial Day on the last Monday in May.
(D) Independence Day on July 4.
(E) Labor Day on the first Monday in September.
(F) Thanksgiving Day on the fourth Thursday in November.
(G) Christmas Day on December 25.
(2) An employer shall give notice in writing to employees who
perform work under subsection (1) of this section, either at the
time of hire or before commencement of work on the contract, or
by posting a notice in a location frequented by employees, of the
number of hours per day and days per week that employees may be
required to work.
(3) For the purpose of this section, each time a legal holiday,
other than Sunday, listed in subsection (1) of this section falls
on Sunday, the succeeding Monday shall be recognized as a legal
holiday. Each time a legal holiday listed in subsection (1) of
this section falls on Saturday, the preceding Friday shall be
recognized as a legal holiday.
(4) When specifically agreed to under a written
labor-management negotiated labor agreement, an employee may be
paid at least time and a half pay for work performed on any legal
holiday specified in ORS 187.010 and 187.020 that is not listed
in subsection (1) of this section.
(5) This section does not apply to contracts for personal
services designated under ORS 279A.055, provided that persons
employed under such contracts shall receive at least time and a
half pay for work performed on the legal holidays specified in
subsection (1)(b)(B) to (G) of this section and for all overtime
worked in excess of 40 hours in any one week, except for
individuals under personal services contracts who are excluded
under ORS 653.010 to 653.261 or under 29 U.S.C. 201 to 209 from
receiving overtime.
(6) Subsections (1) and (2) of this section do not apply to
contracts for services at a county fair or for other events
authorized by a county fair board if persons employed under the
contract receive at least time and a half for work in excess of
10 hours in any one day or 40 hours in any one week.
(7) Subsections (1) to (3) of this section do not apply to a
contract for services if the contractor is a party to a
collective bargaining agreement in effect with any labor
organization.
(8)(a) Subsections (1) and (2) of this section do not apply to
contracts for services. However, persons employed under such
contracts shall receive at least time and a half pay for work
performed on the legal holidays specified in a collective
bargaining agreement or in subsection (1)(b)(B) to (G) of this
section and for all time worked in excess of 10 hours in any one
day or in excess of 40 hours in any one week, whichever is
greater.
(b) An employer shall give notice in writing to employees who
work on a contract for services, either at the time of hire or
before commencement of work on the contract, or by posting a
notice in a location frequented by employees, of the number of
hours per day and days per week that the employees may be
required to work.
(9) Any contractor or subcontractor or contractor's or
subcontractor's surety that violates the provisions of this
section is liable to the affected employees in the amount of
their unpaid overtime wages and in an additional amount equal to
the unpaid overtime wages as liquidated damages. If the violation
resulted from willful falsification of payroll records, the
contractor or subcontractor or contractor's or subcontractor's
surety is liable to the affected employees in the amount of their
unpaid overtime wages and in an additional amount equal to twice
the unpaid overtime wages as liquidated damages.
(10) An action to enforce liability to employees under
subsection (9) of this section may be brought as an action on the
contractor's payment bond as provided for in ORS 279C.610.
(11) This section does not apply to:
(a) Financial institutions as defined in ORS 706.008.
(b) Labor performed in the prevention or suppression of fire
under contracts and agreements made pursuant to the authority of
the { - State Forester or the State Board of Forestry - }
{ + Director of the Oregon Department of Natural Resources or
the Oregon Natural Resources Commission + } under ORS 477.406.
(c) Public contracts for goods or personal property.
(12) In accordance with ORS chapter 183, the Commissioner of
the Bureau of Labor and Industries may adopt rules to carry out
the provisions of this section.
SECTION 1805. ORS 279B.235 is amended to read:
279B.235. (1) Except as provided in subsections (3) to (6) of
this section, every public contract subject to this chapter must
contain a condition that a person may not be employed for more
than 10 hours in any one day, or 40 hours in any one week, except
in cases of necessity, emergency or when the public policy
absolutely requires it, and in such cases, except in cases of
contracts for personal services designated under ORS 279A.055,
the employee shall be paid at least time and a half pay:
(a)(A) For all overtime in excess of eight hours in any one day
or 40 hours in any one week when the work week is five
consecutive days, Monday through Friday; or
(B) For all overtime in excess of 10 hours in any one day or 40
hours in any one week when the work week is four consecutive
days, Monday through Friday; and
(b) For all work performed on Saturday and on any legal holiday
specified in ORS 279B.020.
(2) An employer must give notice in writing to employees who
work on a public contract, either at the time of hire or before
commencement of work on the contract, or by posting a notice in a
location frequented by employees, of the number of hours per day
and days per week that the employees may be required to work.
(3) In the case of contracts for personal services as described
in ORS 279A.055, the contract shall contain a provision that the
employee shall be paid at least time and a half for all overtime
worked in excess of 40 hours in any one week, except for
individuals under personal services contracts who are excluded
under ORS 653.010 to 653.261 or under 29 U.S.C. 201 to 209 from
receiving overtime.
(4) In the case of a contract for services at a county fair or
for other events authorized by a county fair board, the contract
must contain a provision that employees must be paid at least
time and a half for work in excess of 10 hours in any one day or
40 hours in any one week. An employer shall give notice in
writing to employees who work on such a contract, either at the
time of hire or before commencement of work on the contract, or
by posting a notice in a location frequented by employees, of the
number of hours per day and days per week that employees may be
required to work.
(5)(a) Except as provided in subsection (4) of this section,
contracts for services must contain a provision that requires
that persons employed under the contracts shall receive at least
time and a half pay for work performed on the legal holidays
specified in a collective bargaining agreement or in ORS 279B.020
(1)(b)(B) to (G) and for all time worked in excess of 10 hours in
any one day or in excess of 40 hours in any one week, whichever
is greater.
(b) An employer shall give notice in writing to employees who
work on a contract for services, either at the time of hire or
before commencement of work on the contract, or by posting a
notice in a location frequented by employees, of the number of
hours per day and days per week that the employees may be
required to work.
(6) This section does not apply to public contracts:
(a) With financial institutions as defined in ORS 706.008.
(b) Made pursuant to the authority of the { - State Forester
or the State Board of Forestry - } { + Director of the Oregon
Department of Natural Resources or the Oregon Natural Resources
Commission + } under ORS 477.406 for labor performed in the
prevention or suppression of fire.
(c) For goods or personal property.
SECTION 1806. ORS 315.104 is amended to read:
315.104. (1) A credit against the taxes otherwise due under ORS
chapter 316 (or if the taxpayer is a corporation, under ORS
chapter 317 or 318) shall be allowed in an amount equal to 50
percent of reforestation project costs actually paid or incurred
to reforest underproductive Oregon forestlands. Such costs
include, but are not limited to, any fees established by the
{ - State Forester - } { + Director of the Oregon Department
of Natural Resources + } under ORS 315.106 (4), site preparation,
tree planting and other silviculture treatments considered
necessary by the
{ - State Forester - } { + director + } to establish
commercial, hardwood or softwood stands on appropriate sites.
Subject to subsection (5) of this section:
(a) One-half of the credit shall be taken in the tax year for
which the { - State Forester - } { + director + }, after
physical inspection of the forestland, issues a preliminary
certificate under ORS 315.106 certifying that the land qualifies
as underproductive Oregon forestland and that the reforestation
project undertaken meets the requirements of this section and the
specifications established by the { - State Forester - }
{ + director + } and the costs appear to be reasonable; and
(b) One-half of the credit shall be taken in the tax year for
which the { - State Forester - } { + director + }, after
further physical inspection of the land and project, certifies
that the new forest is established in accordance with the
specifications of the { - State Forester - }
{ + director + }.
(2) No credit shall be allowed under either subsection (1)(a)
or (b) of this section unless written certification containing
the following statements accompanies the claim for the credit or
is otherwise filed with the Department of Revenue:
(a) A preliminary certificate issued by the { - State
Forester - } { + director + } under ORS 315.106 that the land
and project meet the preliminary specifications established by
the { - State Forester - } { + director + } or that the new
forest is established, whichever is applicable at the time.
(b) A statement by the landowner or person in possession of the
land that the land within the project area will be used for the
primary purpose of growing and harvesting trees of an acceptable
species.
(c) A statement that the landowner or person in possession of
the land is aware that maintenance practices, including release,
may be needed to insure that a new forest is established and will
remain established.
(3) For purposes of this section, reforestation project costs
shall not include:
(a) Costs paid or incurred to reforest any forestland that has
been commercially logged to the extent that reforestation is
required under the Oregon Forest Practices Act, except costs paid
or incurred to reforest forestland following a hardwood harvest,
conducted for the purposes of converting underproductive
forestlands, as determined by administrative rule.
(b) That portion of costs or expenses paid through a federal or
state cost share, financial assistance or other incentive
program.
(c) Those costs paid or incurred to grow Christmas trees,
ornamental trees, shrubs or plants, or those costs paid or
incurred to grow hardwood timber described under ORS 321.267 (3)
or 321.824 (3).
(d) Any costs paid or incurred to purchase or otherwise acquire
the land.
(e) The cost of purchase or other acquisition of tools and
equipment with a useful life of more than one year.
(4) To qualify for the credit:
(a) The project must be completed to specifications approved by
the { - State Forester - } { + director + }.
(b) The taxpayer's portion of the project costs must be $500 or
more.
(c) The taxpayer must be a private individual, corporation,
group, Indian tribe or other native group, association or other
nonpublic legal entity owning, purchasing under recorded contract
of sale or leasing at least five acres of Oregon commercial
forestland.
(d) Prior to December 31, 2012, the taxpayer must file with the
{ - State Forester - } { + director + } a written request for
preliminary certification under ORS 315.106.
(5) Any tax credit otherwise allowable under this section which
is not used by the taxpayer in a particular year may be carried
forward and offset against the taxpayer's tax liability for the
next succeeding tax year. Any credit remaining unused in such
next succeeding tax year may be carried forward and used in the
second succeeding tax year, and likewise, any credit not used in
that second succeeding tax year may be carried forward and used
in the third succeeding tax year, but may not be carried forward
for any tax year thereafter. In all cases the taxpayer must be
the person who made the investment into the project.
(6) The credit provided by this section shall be in addition to
and not in lieu of any depreciation or amortization deduction to
which the taxpayer otherwise may be entitled with respect to the
reforestation project and the credit shall not affect the
computation of basis for the property.
(7) In compliance with ORS chapter 183, the Department of
Revenue and the { - State Forestry Department - } { + Oregon
Department of Natural Resources + } may adopt rules consistent
with law for carrying out the provisions of this section.
(8) As used in this section, 'underproductive Oregon
forestlands' means Oregon commercial forestlands not meeting the
minimum stocking standards of the Oregon Forest Practices Act.
(9) If, for any reason other than those specified in subsection
(10) of this section, a new forest is not established by the last
day of the second taxable year following the taxable year for
which the preliminary certificate was issued, the { - State
Forester - } { + director + } shall so report to the Department
of Revenue. The report filed under this subsection shall be the
basis for the department to recover any credit granted under
subsection (1)(a) of this section. If, however, the new forest is
not established within the time required by this subsection on
account of the reasons specified in subsection (10) of this
section, any credit allowed under subsections (1)(a) and (5) of
this section shall not be recovered but no further credit as
provided under subsections (1)(b) and (5) of this section shall
be allowed.
(10) Subject to requalification under this section in the
manner applicable for the original claim, including obtaining a
new preliminary certificate, a taxpayer may claim an additional
credit or credits for reestablishing a new planting in the event
that the new forest is destroyed by a natural disaster or is not
established for reasons beyond the control of the taxpayer, if
the measures taken in completing the original or earlier project
would normally have resulted in establishing the minimum number
of trees per acre anticipated by the project.
(11) Any owner affected by a determination, regarding the
reforestation tax credit made by:
(a) The { - State Forester - } { + director + }, except for
a denial of a request for a preliminary certificate due to the
annual reforestation credit cost limitation calculated under ORS
315.108, may appeal that determination in the manner provided for
in ORS 526.475 (1).
(b) The Department of Revenue, may appeal that determination in
the manner provided for in ORS 526.475 (2).
SECTION 1807. ORS 315.106 is amended to read:
315.106. (1) A taxpayer claiming the credit provided under ORS
315.104 shall file a written request with the { - State
Forester - } { + Director of the Oregon Department of Natural
Resources + } for a preliminary certificate. The request shall
contain:
(a) Information that is required by the { - State
Forester - } { + director + } by rule;
(b) An estimate of the amount of the credit the taxpayer
expects to claim under ORS 315.104 (1)(a); and
(c) Payment of any fee required by the { - State Forester - }
{ + director + } by rule adopted under subsection (4) of this
section.
(2) The { - State Forester - } { + director + } shall
consider requests for preliminary certificates in the
chronological order in which the requests are filed with the
{ - State Forester. If the State Forester - } { + director. If
the director + } determines that the request complies with ORS
315.104 (1)(a), the { - State Forester - } { + director + }
shall issue the preliminary certificate to the taxpayer, to the
extent the total amount of estimated claims for credit under ORS
315.104 (1)(a) for all preliminary certificates issued for the
calendar year do not exceed the annual reforestation credit cost
limitation calculated under ORS 315.108.
(3) The { - State Forester - } { + director + } may not
issue a preliminary certificate to a taxpayer to the extent the
estimated claim for credit under ORS 315.104 (1)(a) contained in
the request for a preliminary certificate, when added to the
total of estimated claims for credit under ORS 315.104 (1)(a) for
all preliminary certificates issued by the { - State
Forester - } { + director + } for the calendar year, exceeds
the annual reforestation credit cost limitation calculated under
ORS 315.108.
(4) The { - State Forester - } { + director + } shall
establish by rule a fee for filing a written request for a
preliminary certificate under this section. The fee shall be
adequate to recover the costs incurred by the { - State
Forestry Department - } { + Oregon Department of Natural
Resources + } in administering the reforestation tax credit
program established under this section and ORS 315.104 and
315.108.
(5) Moneys collected from fees established by the { - State
Forester - } { + director + } under rules adopted under this
section shall be deposited in the { - State Forestry Department
Account to be used - } { + Oregon Natural Resources Fund. Moneys
deposited in the fund under this subsection are continuously
appropriated to the department + } for the purposes of
administering the reforestation tax credit program.
{ + NOTE: + } Section 1808 was deleted. Subsequent sections
were not renumbered.
SECTION 1809. ORS 319.320 is amended to read:
319.320. (1) Upon compliance with subsection (2) or (3) of this
section the Department of Transportation shall refund, in the
manner provided in subsection (2) or (3) of this section, the tax
on motor vehicle fuel that is used in the operation of a motor
vehicle:
(a) By any person on any road, thoroughfare or property in
private ownership.
(b) By any person on any road, thoroughfare or property, other
than a state highway, county road or city street, for the removal
of forest products, as defined in ORS 321.005, or the products of
such forest products converted to a form other than logs at or
near the harvesting site, or for the construction or maintenance
of the road, thoroughfare or property, pursuant to a written
agreement or permit authorizing the use, construction or
maintenance of the road, thoroughfare or property, with or by:
(A) An agency of the United States;
(B) The { - State Board of Forestry - } { + Oregon Natural
Resources Commission + };
(C) The { - State Forester - } { + Director of the Oregon
Department of Natural Resources + }; or
(D) A licensee of an agency named in subparagraph (A), (B) or
(C) of this paragraph.
(c) By an agency of the United States or of this state or of
any county, city or port of this state on any road, thoroughfare
or property, other than a state highway, county road or city
street.
(d) By any person on any county road for the removal of forest
products, as defined in ORS 321.005, or the products of such
forest products converted to a form other than logs at or near
the harvesting site, if:
(A) The use of the county road is pursuant to a written
agreement entered into with, or to a permit issued by, the
{ - State Board of Forestry, the State Forester - } { + Oregon
Natural Resources Commission, the Director of the Oregon
Department of Natural Resources + } or an agency of the United
States, authorizing such person to use such road and requiring
such person to pay for or to perform the construction or
maintenance of the county road;
(B) The board, officer or agency that entered into the
agreement or granted the permit, by contract with the county
court or board of county commissioners, has assumed the
responsibility for the construction or maintenance of such county
road; and
(C) Copies of the agreements or permits required by
subparagraphs (A) and (B) of this paragraph are filed with the
department.
(2) Except for a farmer subject to subsection (3) of this
section, the person or agency, as the case may be, who has paid
any tax on such motor vehicle fuels levied or directed to be
paid, as provided by ORS 319.010 to 319.430, is entitled to claim
a refund of the tax so paid on such fuels or for the
proportionate part of tax paid on fuels used in the operation of
such vehicles, when part of the operations are over such roads,
thoroughfares or property. The proportionate part shall be based
upon the number of miles traveled by any such vehicle over such
roads, thoroughfares or property as compared to the total number
of miles traveled by such vehicle. To be eligible to claim such
refund the person or agency, as the case may be, shall first
establish and maintain a complete record of the operations, miles
traveled, gallons of fuel used and other information, in such
form and in such detail as the department may prescribe and
require, the source of supply of all fuels purchased or used, and
the particular vehicles or equipment in which used. Whenever any
such claim is received and approved by the department, it shall
cause the refund of tax to be paid to the claimant in like manner
as provided for paying of other refund claims.
(3) A farmer who has paid any tax on motor vehicle fuels levied
or directed to be paid, as provided in ORS 319.010 to 319.430, is
entitled to claim a refund of the tax paid on such fuels used in
farming operations in the operation of any motor vehicle on any
road, thoroughfare or property in private ownership. To be
eligible to claim such refund a farmer shall maintain in such
form and in such detail as the department may prescribe and
require, a record, supported by purchase invoices, of all such
motor vehicle fuel purchased (including fuel purchased to operate
any motor vehicle on the highway) and, for each and every motor
vehicle operated on the highway, a record of all fuel used and of
all miles traveled on the highway. Whenever any such claim is
received and approved by the department, it shall cause the
refund of tax to be paid to the claimant in like manner as
provided for paying of other refund claims.
(4) As used in subsections (2) and (3) of this section, '
farmer' includes any person who manages or conducts a farm for
the production of livestock or crops but does not include a
person who manages or conducts a farm for the production of
forest products, as defined in ORS 321.005, or the products of
such forest products converted to a form other than logs at or
near the harvesting site, or of forest trees unless the
production of such forest products or forest trees is only
incidental to the primary purpose of the farming operation.
SECTION 1810. ORS 319.831 is amended to read:
319.831. (1) If a user obtains fuel for use in a motor vehicle
in this state and pays the use fuel tax on the fuel obtained, the
user may apply for a refund of that part of the use fuel tax paid
which is applicable to use of the fuel to propel a motor vehicle:
(a) In another state, if the user pays to the other state an
additional tax on the same fuel;
(b) Upon any road, thoroughfare or property in private
ownership;
(c) Upon any road, thoroughfare or property, other than a state
highway, county road or city street, for the removal of forest
products, as defined in ORS 321.005, or the products of such
forest products converted to a form other than logs at or near
the harvesting site, or for the construction or maintenance of
the road, thoroughfare or property, pursuant to a written
agreement or permit authorizing the use, construction or
maintenance of the road, thoroughfare or property, with or by:
(A) An agency of the United States;
(B) The { - State Board of Forestry - } { + Oregon Natural
Resources Commission + };
(C) The { - State Forester - } { + Director of the Oregon
Department of Natural Resources + }; or
(D) A licensee of an agency named in subparagraph (A), (B) or
(C) of this paragraph;
(d) By an agency of the United States or of this state or of
any county, city or port of this state on any road, thoroughfare
or property, other than a state highway, county road or city
street;
(e) By any incorporated city or town of this state;
(f) By any county of this state or by any road assessment
district formed under ORS 371.405 to 371.535;
(g) Upon any county road for the removal of forest products as
defined in ORS 321.005, or the products of such forest products
converted to a form other than logs at or near the harvesting
site, if:
(A) Such use upon the county road is pursuant to a written
agreement entered into with, or to a permit issued by, the
{ - State Board of Forestry, the State Forester - } { + Oregon
Natural Resources Commission, the Director of the Oregon
Department of Natural Resources + } or an agency of the United
States, authorizing such user to use such road and requiring such
user to pay for or to perform the construction or maintenance of
the county road;
(B) The { - board - } { + commission + }, officer or agency
that entered into the agreement or granted the permit, by
contract with the county court or board of county commissioners,
has assumed the responsibility for the construction or
maintenance of such county road; and
(C) Copies of the agreements or permits required by
subparagraphs (A) and (B) of this paragraph are filed with the
Department of Transportation;
(h) By a school district or education service district of this
state or the contractors of a school district or education
service district, for those vehicles being used to transport
students;
(i) By a rural fire protection district organized under the
provisions of ORS chapter 478;
(j) By any district, as defined in ORS chapter 198, that is not
otherwise specifically provided for in this section; or
(k) By any state agency, as defined in ORS 240.855.
(2) An application for a refund under subsection (1) of this
section shall be filed with the department within 15 months after
the date the use fuel tax, for which a refund is claimed, is
paid.
(3) The application for a refund provided by subsection (1) of
this section shall include a signed statement by the applicant
indicating the amount of fuel for which a refund is claimed, and
the way in which the fuel was used which qualifies the applicant
for a refund. If the fuel upon which the refund is claimed was
obtained from a seller to whom the use fuel tax was paid, the
application shall be supported by the invoices which cover the
purchase of the fuel. If the applicant paid the use fuel tax
directly to the department, the applicant shall indicate the
source of the fuel and the date it was obtained.
(4) The department may require any person who applies for a
refund provided by subsection (1) of this section to furnish a
statement, under oath, giving the person's occupation,
description of the machines or equipment in which the fuel was
used, the place where used and such other information as the
department may require.
SECTION 1811. ORS 321.005 is amended to read:
321.005. As used in ORS 321.005 to 321.185, 321.560 to 321.600
and 477.440 to 477.460, unless the context requires otherwise:
{ - (1) 'Board' means the State Board of Forestry. - }
{ - (2) - } { + (1) + } 'Protected forestlands' means those
lands which are protected from the starting or spread of fire
thereon or therefrom by:
(a) The { - State Forester, with the approval of the
board - } { + Director of the Oregon Department of Natural
Resources + };
(b) The United States of America through contract with the
{ - State Forester - } { + director + };
(c) Any forest protective agency under contract with the
{ - State Forester or the board - } { + director or the
commission + } pursuant to ORS 477.406; or
(d) Any forest protective agency, described in paragraph (c) of
this subsection, under an agreement with the United States of
America wherein such agency agrees to protect specific federal
forestlands and, in return, the United States of America agrees
to protect specific lands of such agency.
{ - (3) - } { + (2) + } 'Department' means the Department
of Revenue.
{ - (4) - } { + (3) + } 'Committee' means the Emergency
Fire Cost Committee.
{ - (5) - } { + (4) + } 'Forestland' means any land
producing forest products.
{ - (6) - } { + (5) + } 'Forest products' means products
from harvested timber, but does not include products from short
rotation fiber grown under agricultural conditions as described
in ORS 321.267 (3) or 321.824 (3), western juniper or products
from harvested western juniper.
{ - (7) - } { + (6) + } 'Harvest' means the point at which
timber that has been cut, severed, or removed for purposes of
sale or use is first measured in the ordinary course of business
as determined by reference to common practice in the timber
industry.
{ - (8) - } { + (7) + } 'Merchantable stand of timber'
means any stand on forestlands containing living or dead timber
which is being or can be harvested.
{ - (9) - } { + (8) + } 'Taxpayer' means the owner of
timber at time of harvest.
{ - (10) - } { + (9) + } 'Taxes' means the taxes provided
for in ORS 321.015.
{ - (11) - } { + (10) + } 'Owner of timber' means any
individual or combination of individuals, partnership, firm,
corporation or association of whatever nature holding title to
harvested timber by virtue of:
(a) An instrument of conveyance;
(b) The harvesting of the timber; or
(c) The harvesting of the timber and payment therefor.
{ - (12) - } { + (11) + } 'Timber' means all logs which can
be measured in board feet and other forest products as determined
by department rule.
SECTION 1812. ORS 321.152 is amended to read:
321.152. (1) Subject to ORS 321.145 (2), moneys remaining in
the Department of Revenue's suspense account referred to in ORS
321.145 on February 10, May 10, August 10 and November 10 of each
year shall be transferred to the various appropriation accounts
described in subsections (2), (3) and (4) of this section.
(2) That part of the moneys derived from taxes levied by ORS
321.015 (1) shall be transferred to the Forest Research and
Experiment Account described in ORS 321.185.
(3) That part of the moneys derived from taxes levied by ORS
321.015 (3) shall be transferred to the { - State Forestry
Department Account referred to in ORS 526.060 - } { + Oregon
Natural Resources Fund + }. Notwithstanding ORS 291.238, the
moneys transferred to the { - State Forestry Department
Account - } { + fund + } under this section are
{ - appropriated continuously for and shall be used by the
State Forester, under the supervision and direction of the State
Board of Forestry, - } { + continuously appropriated to the
Oregon Department of Natural Resources + } for the purposes of
administering the Oregon Forest Practices Act and the forest
practices monitoring program.
(4) That part of the moneys derived from taxes levied by ORS
321.015 (2) shall be transferred to the Oregon Forest Land
Protection Fund described in ORS 477.750.
SECTION 1813. ORS 321.213 is amended to read:
321.213. (1) At any time, the Department of Revenue may convene
a forestland value advisory committee to assist the department in
developing a valuation model under ORS 321.207 or in determining
specially assessed values of forestland. If the department
convenes a committee, it shall be composed of members appointed
by the Director of the Department of Revenue. In appointing
members, the director shall strive to include representation of
counties, the { - State Forestry Department - } { + Oregon
Department of Natural Resources + } and large and small
forestland owners from western Oregon and eastern Oregon.
(2) The Department of Revenue shall provide staff and
administrative support to facilitate the work of a committee
convened by the department.
SECTION 1814. ORS 321.257 is amended to read:
321.257. As used in ORS 321.257 to 321.390, unless the context
requires otherwise:
(1) 'Department' means the Department of Revenue.
(2) 'Forestland' means land in western Oregon that is being
held or used for the predominant purpose of growing and
harvesting trees of a marketable species and has been designated
as forestland or land in western Oregon, the highest and best use
of which is the growing and harvesting of such trees. Trees of a
marketable species may vary in different areas in western Oregon
and may change as the utilization of forest trees changes. The
size, age, location, quality and condition of trees do not
necessarily determine marketable species. Forestland often
contains isolated openings which because of rock outcrops, river
wash, swamps, chemical conditions of the soil, brush and other
like conditions prevent adequate stocking of such openings for
the production of trees of a marketable species. If the openings
in their natural state are necessary to hold the surrounding
forestland in forest use through sound management practices, the
openings are deemed forestland. Forestland does not include
buildings, structures, machinery, equipment or fixtures erected
upon, under or above the soil. Forestland includes roads
described in ORS 308.236.
(3) 'Land class' or 'land classes' means one of the eight
classifications of forestland, used for assessment purposes by
the department, based upon State Tax Commission Valuation
Division Supplements published in 1967, and identified in ORS
321.210.
{ - (4) 'State Forester' means the State Forester or the
authorized representative of the State Forester. - }
{ - (5) - } { + (4) + } 'Sustained yield management' means
the growing and harvesting of timber crops on a continuous basis
on land that is primarily dedicated to timber production.
{ - (6) - } { + (5) + } 'Taxing district' or 'district'
means each county, city, school district and other corporation
vested with the power to levy property taxes in western Oregon.
{ - (7) - } { + (6) + } 'Timber' means all logs which can
be measured in board feet and other forest products as determined
by department rule.
{ - (8) - } { + (7) + } 'Western Oregon' means that portion
of the state lying west of a line beginning at the intersection
of the northern boundary of the State of Oregon and the western
boundary of Wasco County, thence southerly along the western
boundaries of the counties of Wasco, Jefferson, Deschutes and
Klamath to the southern boundary of the State of Oregon.
SECTION 1815. ORS 321.367 is amended to read:
321.367. (1) The { - State Forester - } { + Director of the
Oregon Department of Natural Resources + } shall identify all of
the forestlands that fail to meet the minimum stocking required
under ORS 527.610 to 527.770 and that are therefore
underproductive as described under ORS 526.455.
(2) At any time the { - State Forester - } { + director + }
has reason to believe that forestland is not being managed as
forestland, the
{ - State Forester - } { + director + } shall review the
owner's management plan, if any, and inspect the property.
Subject to subsection (5) of this section, the { - State
Forester - } { + director + } shall advise the owner as
prescribed in subsection (3) of this section if the
{ - State Forester - } { + director + } determines the land
is not being managed in accordance with a plan that provides for:
(a) Regeneration of all suitable nonstocked land;
(b) Maintenance of a free-to-grow condition;
(c) Protection from fire, insects, disease, animal damage,
undesirable vegetative competition; and
(d) Final harvest.
(3)(a) The { - State Forester - } { + director + } shall
advise the owner that the land is not being managed in accordance
with a plan that meets the criteria set forth in subsection (2)
of this section and that a plan for the land that does meet the
criteria must be developed and activated within one year after
the date of the advisement.
(b) At the request of the owner, the { - State Forester - }
{ + director + } shall assign a forester or provide a listing
of foresters to assist the owner in developing and implementing
an appropriate management plan for the land.
(c) As soon as practicable after the time indicated in the
advisement has expired, the { - State Forester - }
{ + director + } shall view the land to determine if the land is
being managed in accordance with a plan that meets the criteria
set forth in subsection (2) of this section. If, upon inspection,
the { - State Forester - } { + director + } finds that the
land is not being so managed, the { - State Forester - } { +
director + } shall notify the owner and the county assessor.
(4) The county assessor, upon receipt of the notice from the
{ - State Forester - } { + director + }, shall cease to treat
that land as forestland under ORS 321.257 to 321.390 and shall
value the land as prescribed under ORS 308.146 and 308.232.
(5) If at the time that the { - State Forester - }
{ + director + } views the land under subsection (3)(c) of this
section, it is determined that a change in ownership has
occurred, the { - State Forester - } { + director + } shall
notify the new owner as required under subsection (3) of this
section in the manner of the original notification.
(6) When the owner of land disqualified from forestland
assessment provides satisfactory information to the { - State
Forester - } { + director + } of subsequent action taken to
correct the deficiency resulting in the disqualification of land,
or provides an acceptable management plan to correct such
deficiency, the
{ - State Forester - } { + director + } shall so indicate to
the county assessor. The assessor shall then assess the land
under ORS 321.257 to 321.390, if the land is otherwise qualified
for such assessment.
(7) The { - State Forester - } { + director + } shall adopt
rules necessary to carry out the purposes of this section.
SECTION 1816. ORS 321.550 is amended to read:
321.550. (1) No person shall harvest or cause to be harvested
any timber from land in Oregon without first having notified the
{ - State Forester - } { + Director of the Oregon Department
of Natural Resources + } in writing with a copy to the Department
of Revenue on forms prepared by the { - State Forester - }
{ + director + } and the department of intent to harvest
pursuant to ORS 321.005 to 321.185, 321.560 to 321.600 and
321.700 to 321.754.
(2) The notification shall specify where and when the harvest
will take place and the nature of the harvest and shall include
maps and other data as required by the { - State Forester - }
{ + director + } and the department. The department shall
establish by rule procedures to assure the receipt of the tax
returns sent out or a report of nonharvest from the person. The
department shall conduct field and office audits to ascertain the
correctness of any timber tax return.
(3)(a) If a person fails to file a written notice as required
in subsection (1) of this section with respect to any harvest
over 5,000 board feet, the department shall notify the person.
If, after the person has been notified, the person fails to file
a written notice as required in subsection (1) of this section
with respect to any subsequent harvest over 5,000 board feet,
there shall be added to the amount of the timber tax required to
be shown on the return as a result of the subsequent harvest a
delinquency penalty of $250 for each violation occurring within a
calendar year. The department shall collect the penalty in the
same manner as taxes are collected.
(b) No penalty shall be imposed under this subsection if a
penalty for failure to file the notice with the { - State
Forester - } { + director + } has been imposed under ORS
527.992.
(c) The delinquency penalty shall first be added to the small
tract forestland timber severance tax imposed under ORS 321.700
to 321.754, if applicable to the harvest. If the small tract
forestland timber severance tax is not applicable, the
delinquency penalty shall be added to the forest products harvest
tax imposed under ORS 321.005 to 321.185.
SECTION 1817. ORS 321.684 is amended to read:
321.684. (1) The Department of Revenue may:
(a) Furnish to any taxpayer or authorized representative, upon
request of the taxpayer or authorized representative, a copy of
the taxpayer's forest products harvest tax report or return
required by ORS 321.045 or 321.741 that is filed with the
department for any year, or a copy of any report filed by the
taxpayer in connection with the return.
(b) Publish a list of taxpayers who are entitled to unclaimed
tax refunds.
(c) Publish statistics classified so as to prevent the
identification of taxable value or any particulars contained in
any report or return.
(d) Disclose a taxpayer's name, address and Social Security
number or employer identification number to the extent necessary
in connection with the processing and mailing of forms for any
report or return required in the administration of ORS 321.045
and 321.741.
{ - (e) Disclose to the State Forester, upon request of the
forester, for the purpose of soliciting nominations and
recommendations referred to in ORS 526.610, the names of
producers meeting producer class qualifications established under
ORS 526.610 who filed forest products harvest tax returns. - }
{ - (f) - } { + (e) + } Disclose appraisal data collected
to make determinations of specially assessed value of forestland
under ORS 321.201 to 321.222 to any member of a forestland value
advisory committee the department has convened under ORS 321.213.
(2) The department also may disclose and give access to
information described in ORS 321.682 to:
(a) The Commissioner of Internal Revenue or authorized
representative, for tax purposes only.
(b) The United States Forest Service, Bureau of Land Management
and the { - State Forestry Department - } { + Oregon
Department of Natural Resources + } pursuant to their regulatory
programs and for investigative purposes related to timber theft.
(c) The Attorney General, assistants and employees in the
Department of Justice or other legal representative of the State
of Oregon, to the extent the department considers disclosure or
access necessary for the performance of the duties of advising or
representing the department pursuant to ORS 321.045 and 321.741.
(d) Employees of the State of Oregon, other than the Department
of Revenue or Department of Justice, to the extent the department
considers disclosure or access necessary for such employees to
perform their duties under contracts or agreements between the
department and any other department, agency or subdivision of the
State of Oregon in the department's administration of the tax
laws.
(e) The Legislative Revenue Officer or the authorized
representative of the Legislative Revenue Officer upon compliance
with ORS 173.850. The officer or representative may not remove
from the premises of the department any materials that would
reveal the identity of any taxpayer or any other person or the
volume of harvest and value reported on individual returns and
reports.
(f) Any agency of the State of Oregon, or any person, or any
officer or employee of the agency or person to whom disclosure or
access is given by state law and not otherwise referred to in
this section, including but not limited to the Secretary of State
as Auditor of Public Accounts under section 2, Article VI of the
Constitution of the State of Oregon.
(3) Each officer or employee of the department and each person
described or referred to in subsection (2)(b) to (f) of this
section to whom disclosure or access to the tax information is
given under subsection (2) of this section or any other provision
of state law, prior to beginning employment or the performance of
duties involving such disclosure or access, shall be advised in
writing of the provisions of ORS 321.682 and 321.686 relating to
penalties for the violation of ORS 321.682, and shall, as a
condition of employment or performance of duties, execute a
certificate for the department, in a form prescribed by the
department, stating in substance that the person has read these
provisions of law, that the person has had them explained and
that the person is aware of the penalties for the violation of
ORS 321.682.
SECTION 1818. ORS 321.716 is amended to read:
321.716. (1) The county assessor shall disqualify land as small
tract forestland upon:
(a) Sale or transfer of the small tract forestland;
(b) Discovery by the assessor that the land is no longer
forestland;
(c) The owner's owning or holding in common ownership more than
5,000 acres of Oregon forestland;
(d) The owner's owning or holding in common ownership less than
10 acres of Oregon forestland;
(e) Written notice from the { - State Forestry Department - }
{ + Oregon Department of Natural Resources + } that the land no
longer meets the stocking and species requirements applicable to
small tract forestland under rules adopted by the Department of
Revenue;
(f) The land's qualifying for another special assessment listed
in ORS 308A.706 (1)(d)(A), (B), (F) or (G); or
(g) The recording of a subdivision plat under ORS chapter 92
that subdivides the land.
(2) If, pursuant to subsection (1)(g) of this section, the
county assessor disqualifies small tract forestland upon the
recording of a subdivision plat, the land may requalify for small
tract forestland assessment upon:
(a) Payment of all additional tax and interest that remains due
and owing as a result of the disqualification;
(b) Submission of an application for small tract forestland
assessment under ORS 321.706 and approval of the application by
the county assessor; and
(c) Compliance with any applicable local government zoning
ordinances governing minimum lot or parcel acreage for forest
use.
(3)(a) If a sale or transfer of small tract forestland is the
basis for disqualification under subsection (1)(a) of this
section, the land may not be disqualified until 30 days after the
county assessor issues a notice of intent to disqualify to the
purchaser or transferee of the small tract forestland. The
assessor shall issue a notice of intent to disqualify within 15
months after the date of the sale or transfer.
(b) The land shall automatically qualify for special assessment
under ORS 321.257 to 321.390 or 321.805 to 321.855, whichever is
applicable, unless the assessor determines that the land does not
constitute forestland.
(4) Upon disqualification of land under subsection (1) of this
section, additional taxes shall be determined as provided in ORS
308A.700 to 308A.733.
SECTION 1819. ORS 321.733 is amended to read:
321.733. (1) The Department of Revenue shall mail a severance
tax return form to an owner of timber harvested from lands
assessed as small tract forestland, as shown on { - a State
Forestry Department - } { + an Oregon Department of Natural
Resources + } Notification of Operations permit issued during a
calendar year.
(2) Any owner of timber receiving a severance tax return mailed
by the Department of Revenue shall complete the return and submit
the return to the department within the time prescribed in ORS
321.741, even if the owner of timber has not incurred severance
tax liability during the calendar year.
SECTION 1820. ORS 321.805 is amended to read:
321.805. As used in ORS 321.805 to 321.855, unless the context
requires otherwise:
(1) 'Cultured Christmas trees' means trees:
(a) Grown on lands used exclusively for that purpose, capable
of preparation by intensive cultivation methods such as plowing
or turning over the soil;
(b) Of a marketable species;
(c) Managed to produce trees meeting U.S. No. 2 or better
standards for Christmas trees as specified by the Agriculture
Marketing Services of the United States Department of
Agriculture; and
(d) Evidencing periodic maintenance practices of shearing for
Douglas fir and pine species, weed and brush control, and basal
pruning, fertilizing, insect and disease control, stump culture,
soil cultivation or irrigation.
(2) 'Department' means the Department of Revenue.
(3) 'Eastern Oregon' means that portion of the state lying east
of a line beginning at the intersection of the northern boundary
of the State of Oregon and the western boundary of Wasco County,
thence south along the western boundaries of the counties of
Wasco, Jefferson, Deschutes and Klamath to the southern boundary
of the State of Oregon.
(4) 'Forestland' means land in eastern Oregon that is being
held or used for the predominant purpose of growing and
harvesting trees of a marketable species and that has been
designated as forestland under ORS 321.805 to 321.855 or land in
eastern Oregon, the highest and best use of which is the growing
and harvesting of such trees. Forestland is the land alone.
Forestland often contains isolated openings that because of rock
outcrops, river wash, swamps, chemical conditions of the soil,
brush and other like conditions prevent adequate stocking of such
openings for the production of trees of a marketable species. If
such openings in their natural state are necessary to hold the
surrounding forestland in forest use through sound management
practices, the openings are deemed forestland.
{ - (5) 'State Forester' means the State Forester or the
authorized representative of the State Forester. - }
{ - (6) - } { + (5) + } 'Summit of the Cascade Mountains'
means a line beginning at the intersection of the northern
boundary of the State of Oregon and the western boundary of Wasco
County, thence southerly along the western boundaries of the
counties of Wasco, Jefferson, Deschutes and Klamath to the
southern boundary of the State of Oregon.
{ - (7) - } { + (6) + } 'Timber' means all logs which can
be measured in board feet and other forest products as determined
by department rule, but does not include western juniper or
products from harvested western juniper.
SECTION 1821. ORS 336.015 is amended to read:
336.015. (1) The first full week in April shall be known as
Arbor Week. In order that pupils in the public schools shall be
made better aware of the benefits of the preservation and
perpetuation of forests and the growing of timber and of the
environment, the district school board shall cause to be
conducted, during school hours, activities which tend to
encourage the planting, protection and preservation of trees and
shrubs and a greater understanding of the environment and means
for preserving and improving it.
(2) The Superintendent of Public Instruction, with the approval
of the State Board of Education and with the technical assistance
of the { - State Forester - } { + Director of the Oregon
Department of Natural Resources + }, may prescribe and alter a
schedule of activities and instruction to be observed during
Arbor Week.
(3) The { - State Forester - } { + director + } or person
in charge of the state tree nurseries may release for use by
schools upon application thereof seedlings that would otherwise
be destroyed.
SECTION 1822. ORS 351.155 is amended to read:
351.155. Notwithstanding the applicable provisions of ORS
279.835 to 279.855, 279A.140 to 279A.155, 279A.250 to 279A.290,
279A.990, 279B.200 to 279B.240, 279B.270, 279B.275, 279B.280,
279C.360, 279C.365, 279C.370, 279C.375, 279C.380, 279C.385,
279C.500 to 279C.530, 279C.540, 279C.545, 279C.600 to 279C.625,
279C.650 to 279C.670 and 279C.800 to 279C.870, the State Board of
Higher Education may, in the management of all forestlands under
its control and supervision, sell the forest products on such
lands in the same manner as is provided in ORS 530.059, and for
that purpose the State Board of Higher Education shall have the
same powers with respect to experimental or research projects in
the field of forestland management or for forest product
utilization on forestlands under its control as the { - State
Forester - } { + Director of the Oregon Department of Natural
Resources + } has pursuant to the provisions of ORS 530.050 and
530.059. In the management of its forestlands, the State Board of
Higher Education may lease mineral and geothermal resource rights
as provided in ORS 351.060 (5).
SECTION 1823. ORS 403.450, as amended by section 59, chapter
107, Oregon Laws 2010, is amended to read:
403.450. (1) The State Interoperability Executive Council is
created within the Department of Transportation. The membership
of the council shall consist of:
(a) Two members from the Legislative Assembly, as follows:
(A) The President of the Senate shall appoint one member from
the Senate with an interest in public safety communications
infrastructure; and
(B) The Speaker of the House of Representatives shall appoint
one member from the House of Representatives with an interest in
public safety and wireless communications infrastructure.
(b) The following members appointed by the Governor:
(A) One member from the Department of State Police;
(B) One member from the Office of Emergency Management;
(C) One member from the { - State Forestry Department - }
{ + Oregon Department of Natural Resources + };
(D) One member from the Department of Corrections;
(E) One member from the Department of Transportation;
(F) One member from the Oregon Department of Administrative
Services;
(G) One member from the Department of Human Services;
(H) One member from the Oregon Health Authority;
(I) One member from the Oregon Military Department;
(J) One member from the Department of Public Safety Standards
and Training;
(K) One member of an Indian tribe as defined in ORS 97.740 or a
designee of an Indian tribe;
(L) One member from a nonprofit professional organization
devoted to the enhancement of public safety communications
systems; and
(M) One member from the public.
(c) The following members appointed by the Governor with the
concurrence of the President of the Senate and the Speaker of the
House of Representatives:
(A) One member from the Oregon Fire Chiefs' Association;
(B) One member from the Oregon Association Chiefs of Police;
(C) One member from the Oregon State Sheriffs' Association;
(D) One member from the Association of Oregon Counties;
(E) One member from the League of Oregon Cities; and
(F) One member from the Special Districts Association of
Oregon.
(2) Each agency or organization identified in subsection
(1)(b)(A) to (J) and (1)(c) of this section shall recommend a
person from the agency or organization for membership on the
council.
(3) Members of the council are not entitled to compensation,
but in the discretion of the Director of Transportation may be
reimbursed from funds available to the Department of
Transportation for actual and necessary travel and other expenses
incurred by them in the performance of their official duties in
the manner and amount provided in ORS 292.495.
(4) Members of the Legislative Assembly appointed to the
council are nonvoting members and may act in an advisory capacity
only.
SECTION 1824. ORS 421.298 is amended to read:
421.298. The { - State Forester - } { + Director of the
Oregon Department of Natural Resources + } shall make reasonable
efforts to use local available crews within Oregon before calling
on fire suppression units from other states.
SECTION 1825. ORS 421.455 is amended to read:
421.455. (1) The Director of the Department of Corrections
shall establish at places in state forests recommended by the
{ - State Board of Forestry - } { + Oregon Natural Resources
Commission + } one or more forest work camps at which state
inmates and local inmates may be employed. Only such state
inmates as are determined by the Department of Corrections to
require minimum security may be placed at a forest work camp, but
the department { - of Corrections - } shall not place an inmate
at a forest work camp if the department is aware that the inmate
has ever been convicted, of:
(a) Rape in the first degree, as described in ORS 163.375.
(b) Rape in the second degree, as described in ORS 163.365.
(c) Rape in the third degree, as described in ORS 163.355.
(d) Sodomy in the first degree, as described in ORS 163.405.
(e) Sodomy in the second degree, as described in ORS 163.395.
(f) Sodomy in the third degree, as described in ORS 163.385.
(g) Unlawful sexual penetration in the first degree, as
described in ORS 163.411.
(h) Unlawful sexual penetration in the second degree, as
described in ORS 163.408.
(i) Sexual abuse in the first degree, as described in ORS
163.427.
(j) Sexual abuse in the second degree, as described in ORS
163.425.
(k) Any crime in any other jurisdiction that would constitute a
crime described in this subsection if presently committed in this
state.
(L) Any attempt to commit a crime described in this subsection.
(2) The { - State Board of Forestry - } { + commission + }
may make contracts with any other state agency in order to
effectuate the purposes of ORS 421.455, 421.465, 421.470 and
421.476.
SECTION 1826. ORS 421.465 is amended to read:
421.465. (1) Upon the requisition of the { - State
Forester - } { + Director of the Oregon Department of Natural
Resources + }, the superintendent shall send at the time and to
the place designated as many state inmates requisitioned from the
institution under the supervision of the superintendent as have
been determined under rules adopted by the Director of the
Department of Corrections to be eligible for employment at a
forest work camp and as are available.
(2) Before a state inmate is sent to any forest work camp, the
superintendent of the institution in which the inmate is confined
shall cause the inmate to be given such inoculations as are
necessary in the public interest.
(3) While a state inmate is at a forest work camp, the
superintendent of the institution in which the inmate was
confined is responsible for the custody and care of the inmate.
SECTION 1827. ORS 421.470 is amended to read:
421.470. (1) The Director of the Department of Corrections has
authority over the forest work camps except as provided in
subsection (2) of this section.
(2) The { - State Forester - } { + Director of the Oregon
Department of Natural Resources + } shall assign and supervise
the work of the state inmates and local inmates, which work shall
be:
(a) Manual labor, as far as possible, of the type contemplated
by ORS 530.210 to 530.280.
(b) Fire-fighting labor of the type contemplated for forest
protection districts under ORS chapter 477.
(3) Moneys for the cost of custody of the state inmates and
local inmates, and for the labor done by them under this section,
shall be paid from funds appropriated and made available to the
{ - State Board of Forestry - } { + Oregon Department of
Natural Resources + }. Moneys for the cost of care of each local
inmate shall be paid by the county or city from which the local
inmate was transferred under ORS 421.467, but not to exceed $2 a
day for each local inmate. Additional moneys required for the
cost of care of local inmates shall be paid from funds
appropriated and made available to the { - State Board of
Forestry - } { + Oregon Department of Natural Resources + }.
All such moneys shall be collected by the Director of the
Department of Corrections who shall deposit such funds to the
credit of the State Prison Work Programs Account.
SECTION 1828. ORS 468B.105 is amended to read:
468B.105. Upon request of the { - State Board of Forestry - }
{ + Oregon Natural Resources Commission + }, the Environmental
Quality Commission shall review any water quality standard that
affects forest operations on forestlands. The
{ - commission's - } review { + by the Environmental Quality
Commission + } may be limited to or coordinated with the
triennial or any other regularly scheduled review of the state's
water quality standards, consistent with ORS 468B.048 and
468B.110 and applicable federal law.
SECTION 1829. ORS 469.634 is amended to read:
469.634. (1) The Public Utility Commission of Oregon by rule
shall establish a system to allow customers of investor-owned
utilities to voluntarily contribute an amount that is to be used
for urban and community forest activities within the area served
by the utility. The amount shall be in addition to the customer's
utility bill. Investor-owned utilities may choose to use the
system established by the commission.
(2) The utility shall pay to the { - State Forester - }
{ + Director of the Oregon Department of Natural Resources + }
the amount designated under subsection (1) of this section. The
{ - State Forester - } { + director + } shall deposit the
moneys collected under this section into the Urban and Community
Forestry Subaccount established under ORS 526.060.
(3) The { - State Forester - } { + director + } shall use
the moneys collected under this section for urban and community
forest activities. The { - State Forester - }
{ + director + } by rule, in consultation with the Public
Utility Commission of Oregon and local utilities, shall establish
guidelines to distribute moneys collected under this section
through the Urban and Community Forestry Assistance Program. The
guidelines shall include a requirement that moneys are
distributed for energy conservation, by means of tree plantings,
care and maintenance.
(4) A utility shall not use more than 16 percent of the moneys
collected under this section for administrative expenses. The
{ - State Forester - } { + director + } shall not use more
than 16 percent of the moneys collected under this section for
administrative expenses.
(5) As used in this section, 'urban and community forest
activities' means activities that promote cost-effective energy
conservation. These activities may include the planting, managing
and maintaining of residential, street and park trees on public
and private land.
SECTION 1830. ORS 469.652 is amended to read:
469.652. (1) Publicly owned utilities may establish a system to
allow customers of publicly owned utilities to voluntarily
contribute an amount that is to be used for urban and community
forest activities within the area served by the utility. The
amount shall be in addition to the customer's utility bill.
(2) The utility shall pay to the { - State Forester - }
{ + Director of the Oregon Department of Natural Resources + }
the amount designated under subsection (1) of this section. The
{ - State Forester - } { + director + } shall deposit the
moneys collected under this section into the Urban and Community
Forestry Subaccount established under ORS 526.060.
(3) The { - State Forester - } { + director + } shall use
the moneys collected under this section for urban and community
forest activities. The { - State Forester - }
{ + director + } by rule, in consultation with local utilities,
shall establish guidelines to distribute moneys collected under
this section through the Urban and Community Forestry Assistance
Program. The guidelines shall include a requirement that moneys
are distributed for energy conservation, by means of tree
plantings, care and maintenance.
(4) A utility shall not use more than 16 percent of the moneys
collected under this section for administrative expenses. The
{ - State Forester - } { + director + } shall not use more
than 16 percent of the moneys collected under this section for
administrative expenses.
(5) As used in this section, 'urban and community forest
activities' means activities that promote cost-effective energy
conservation. These activities may include the planting, managing
and maintaining of residential, street and park trees on public
and private land.
SECTION 1831. ORS 476.090 is amended to read:
476.090. (1) The State Fire Marshal shall keep a record of all
fires occurring in this state and of all facts concerning the
same, including statistics as to the extent of such fires and the
damage caused, whether such losses were covered by insurance, and
if so, in what amount. All such records shall be public, except
any testimony, information or other evidence taken in an
investigation under ORS 476.010 to 476.090, 476.155 to 476.170,
476.210 to 476.270 and 479.180, which shall be considered
investigatory information as described in ORS 192.501.
(2) This section shall not apply to forestlands under the
jurisdiction of the { - State Forester - } { + Director of
the Oregon Department of Natural Resources + }.
SECTION 1832. ORS 476.210 is amended to read:
476.210. (1) The municipal fire marshals, fire department
chiefs, constables and other officers referred to in ORS 476.060
shall investigate the cause, origin and circumstances of each
fire occurring in their respective cities, villages or townships,
by which property has been destroyed or damaged, and shall make
an investigation to determine whether the fire was the result of
carelessness or design. The investigation shall be commenced
immediately after the occurrence of the fire. The State Fire
Marshal may superintend and direct the investigation if the State
Fire Marshal deems it necessary.
(2) The fire chief of every city, or rural fire protection
district shall provide the State Fire Marshal with a full report
of every fire occurring within the jurisdiction of the fire chief
on a form provided or approved by the State Fire Marshal.
Whenever the fire chief of every city under 200,000 population
finds any fire is of undetermined or suspicious origin or
involves a death or serious injury, the fire chief shall
immediately notify the State Fire Marshal or a deputy state fire
marshal and shall assemble all known facts and circumstances
concerning the fire in an approved report form and shall submit
such report to the State Fire Marshal, or the deputy state fire
marshal assigned to the territory in which the fire originated.
When evidence clearly indicates the cause of fire to be of
incendiary origin, the fire chief shall also immediately notify
the state, county or municipal police agency.
(3) This section shall not apply to forestlands under the
jurisdiction of the { - State Forester - } { + Director of
the Oregon Department of Natural Resources + }.
SECTION 1833. ORS 476.220 is amended to read:
476.220. (1) The officer making an investigation of a fire
occurring in a city, village or township shall forthwith notify
the State Fire Marshal and, within one week of the occurrence of
the fire, shall furnish the State Fire Marshal a written
statement of all facts relating to its cause and origin, and such
other information as is required by forms provided by the State
Fire Marshal.
(2) This section shall not apply to forestland under the
jurisdiction of the { - State Forester - } { + Director of
the Oregon Department of Natural Resources + }.
SECTION 1834. ORS 476.310 is amended to read:
476.310. (1) The governing body of each county may, in
cooperation with the { - State Board of Forestry - }
{ + Oregon Natural Resources Commission + }, zone and, as often
as necessary, rezone any lands within the county lying outside
the boundaries of incorporated cities, organized rural fire
protection districts, federal and state-owned lands, lands
protected under ORS chapter 477 and railroad rights of way,
except that railroad rights of way may be zoned or rezoned if the
owners of such rights of way file their written consent with the
governing body. Lands, when zoned or rezoned, shall be divided
into two zones as follows:
(a) Zone 1 shall be composed of forest, range, grass or
undeveloped lands, or any of such lands intermingled with grazing
and agricultural lands.
(b) Zone 2 shall be composed of rural lands not included in
zone 1.
(2) During the season of the year when there is danger of fire,
every owner of zone 1 land shall provide adequate protection
against the starting or spread of fire thereon or therefrom,
which protection shall meet with the approval of the governing
body of the county in which the zone 1 land is located.
(3) An owner shall be deemed to have complied with the
requirements of subsection (2) of this section if, on January 1
of each year, the owner files with the governing body of the
county a bona fide fire protection plan that meets with the
approval of the county governing body. The governing body of the
county, or its appointed representative, shall periodically
inspect the protection facilities provided under such a plan in
order to confirm compliance by the owner.
(4) If any owner of zone 1 land fails or neglects to file a
fire protection plan, or to comply with the standard of
protection approved by the county governing body, the governing
body shall provide for forest protection pursuant to ORS 476.320.
(5) Nothing contained in ORS 476.310 to 476.340 shall prevent
interested property owners in any nonzoned territory from
petitioning the governing body and { - State Board of
Forestry - } { + the Oregon Natural Resources Commission + } to
hold a hearing on the matter of zoning the territory if a
majority of the landowners within the territory file such
petition. The governing body, cooperating with the { - State
Board of Forestry - } { + commission + }, shall give full
consideration to the wishes of the landowners as shown by the
hearing.
SECTION 1835. ORS 476.320 is amended to read:
476.320. (1) The form of protection from fire for lands lying
in zone 1 shall be determined jointly by the governing body of
the county, the State Fire Marshal and the { - State Board of
Forestry - } { + Oregon Natural Resources Commission + }, which
determination shall be reduced to writing, signed by the officers
of the agencies and entered in the journal of the governing body
of the county.
(2) The authority of the { - State Board of Forestry - }
{ + commission under ORS chapter 477 + } may be extended to
include the establishment of forest protection on lands lying
within zone 1 for lands not subject to a fire protection plan
under ORS 476.310. For such purposes the { - board of
forestry - } { + commission + } may contract with individuals,
associations, agencies, corporations, rural fire protection
districts, counties, cities, federal agencies, or any of them.
The cost of protection in zone 1 shall be assessed and collected
in the same manner as protection costs for lands protected under
ORS chapter 477.
(3) The moneys received by the { - State Board of Forestry
under this section shall be paid into the State Treasury and
credited to the State Forestry Department Account and shall be
used exclusively for the purposes stated in this section. - }
{ + commission under this section shall be deposited in the
Oregon Natural Resources Fund. Moneys deposited in the fund under
this subsection are continuously appropriated to the Oregon
Department of Natural Resources for the purpose of administering
this section. + }
{ - (4) As used in this section, the 'authority of the State
Board of Forestry' means the duties, obligations, requirements
and penalties of ORS chapter 477. - }
SECTION 1836. ORS 477.001 is amended to read:
477.001. As used in this chapter, unless the context otherwise
requires:
(1) 'Additional fire hazard' means a hazard that has been
determined to exist by the { - forester - } { + Director of
the Oregon Department of Natural Resources + } pursuant to ORS
477.580.
{ - (2) 'Board' means the State Board of Forestry. - }
{ - (3) - } { + (2) + } 'Campfire' means any open fire used
for cooking, personal warmth, lighting, ceremonial or aesthetic
purposes that is hand built and that is not associated with any
debris disposal activities.
{ - (4) 'Department' means the State Forestry Department. - }
{ - (5) - } { + (3) + } 'District' means a forest
protection district organized under ORS 477.225.
{ - (6) - } { + (4) + } 'Every reasonable effort' means the
use of the reasonably available personnel and equipment under the
supervision and control of an owner or operator, which are needed
and effective to fight the fire in the judgment of the
{ - forester - } { + director + } and which can be brought to
bear on the fire in a timely fashion.
{ - (7) - } { + (5) + } 'Fire season' means a period
designated pursuant to ORS 477.505.
{ - (8) - } { + (6) + } 'Fiscal year' means the period
beginning on July 1 of any year and ending on June 30 of the next
year.
{ - (9) - } { + (7) + } 'Forestland' means any woodland,
brushland, timberland, grazing land or clearing that, during any
time of the year, contains enough forest growth, slashing or
vegetation to constitute, in the judgment of the
{ - forester - } { + director + }, a fire hazard, regardless
of how the land is zoned or taxed. As used in this subsection,
'clearing' means any grassland, improved area, lake, meadow,
mechanically or manually cleared area, road, rocky area, stream
or other similar forestland opening that is surrounded by or
contiguous to forestland and that has been included in areas
classified as forestland under ORS 526.305 to 526.370.
{ - (10) - } { + (8) + } 'Forest patrol assessment' means
the costs levied and assessed under ORS 477.270.
{ - (11) - } { + (9) + } 'Forest protective association' or
' association' means an association, group or agency composed of
owners of forestlands, organized for the purpose of protecting
such forestlands from fire.
{ - (12) - } { + (10) + } 'Forest resource' means the
various types of vegetation normally growing on Oregon's
forestland, the associated harvested products and the associated
residue, including but not limited to brush, grass, logs,
saplings, seedlings, trees and slashing.
{ - (13) 'Forester' means the State Forester or authorized
representative. - }
{ - (14) - } { + (11) + } 'Governing body' of a county
means the county court or board of county commissioners.
{ - (15) - } { + (12) + } 'Grazing land' is defined by ORS
477.205.
{ - (16) - } { + (13) + } 'Open fire' means any outdoor
fire that occurs in such a manner that combustion air is not
effectively controlled and combustion products are not
effectively vented through a stack or chimney.
{ - (17) - } { + (14) + } 'Operation' means any industrial
activity, any development or any improvement on forestland inside
or within one-eighth of one mile of a forest protection district,
including but not limited to the harvesting of forest tree
species, the clearing of land, the use of power-driven machinery
and the use of fire, excluding, however, the culture and
harvesting of agricultural crops.
{ - (18) - } { + (15) + } 'Operation area' means the area
on which an operation is being conducted and the area on which
operation activity may have resulted in the ignition of a fire.
{ - (19) - } { + (16) + } 'Operation in progress' means
that time when workers are on an operation area for the purpose
of an operation, including the period of time when fire watches
are required to be on the operation area pursuant to ORS 477.665.
{ - (20) - } { + (17) + } 'Operator' means any person who,
either personally or through employees, agents, representatives
or contractors, is carrying on or has carried on any operation.
{ - (21) - } { + (18) + } 'Owner' means an individual, a
combination of individuals, a partnership, a corporation, the
State of Oregon or a political subdivision thereof, or an
association of any nature that holds an ownership interest in
land.
{ - (22) - } { + (19) + } 'Political subdivision' includes,
but is not limited to, counties, cities and special districts.
{ - (23) - } { + (20) + } 'Rangeland' is defined by ORS
477.315.
{ - (24) - } { + (21) + } 'Routine road maintenance' is
defined by ORS 477.625.
{ - (25) - } { + (22) + } 'Side' means any single unit of a
logging operation employing power-driven machinery.
{ - (26) - } { + (23) + } 'Slashing' means the forest
debris or refuse on any forestland resulting from the cutting,
killing, pruning, severing or removal of brush, trees or other
forest growth.
{ - (27) 'State Forester' means the person appointed State
Forester pursuant to ORS 526.031 or the person serving in the
position on an interim or delegated basis. - }
{ - (28) - } { + (24) + } 'Summit of the Cascade Mountains'
is considered to be a line beginning at the intersection of the
northern boundary of the State of Oregon and the western boundary
of Wasco County; thence southerly along the western boundaries of
Wasco, Jefferson, Deschutes and Klamath Counties to the southern
boundary of the State of Oregon.
{ - (29) - } { + (25) + } 'Timberland' is defined by ORS
477.205.
{ - (30) - } { + (26) + } 'Warden' means a fire warden
appointed under ORS 477.355.
SECTION 1837. ORS 477.005 is amended to read:
477.005. (1) The preservation of the forests and the
conservation of the forest resources through the prevention and
suppression of forest fires hereby are declared to be the public
policy of the State of Oregon.
(2) In order to accomplish the purposes of the policy stated in
this section:
(a) The need for a complete and coordinated forest protection
system is acknowledged and the primary mission of the { - State
Forestry Department - } { + Oregon Department of Natural
Resources + } in such a system is protecting forest resources,
second only to saving lives. Structural protection, though
indirect, shall not inhibit protection of forest resources; and
(b) This chapter shall include all persons and activities
designated in this chapter, irrespective as to whether or not
such person or activity is concerned with the harvesting,
cutting, removal or marketing of trees, timber or other forest
products.
SECTION 1838. ORS 477.009 is amended to read:
477.009. (1) For the purpose of an investigation as to
liability for cost of hazard abatement, fire abatement or damages
under this chapter, the Attorney General, at the request of the
{ - State Forester - } { + Director of the Oregon Department
of Natural Resources + }, may administer oaths and affirmations,
take testimony or depositions and by subpoena compel the:
(a) Attendance of witnesses;
(b) Production of documents, including but not limited to
writings, drawings, graphs, charts, photographs, and other data
compilations from which information can be obtained and
translated; and
(c) Production of any other tangible thing that the Attorney
General deems relevant or material to the investigation.
(2) Each witness subpoenaed under subsection (1) of this
section shall receive the fees and mileage provided in ORS 44.415
(2).
(3) If a person fails to comply with a subpoena issued or a
party or witness refuses to testify on any matters, the judge of
the circuit court of any county, on the application of the
{ - State Forester - } { + director + }, shall compel
obedience by proceedings for contempt as in the case of
disobedience of the requirements of a subpoena issued from such
court or a refusal to testify therein.
SECTION 1839. ORS 477.013 is amended to read:
477.013. (1) For the purpose of maintaining air quality, the
{ - State Forester - } { + Oregon Department of Natural
Resources + } and the Department of Environmental Quality shall
approve a plan for the purpose of managing smoke in areas they
shall designate. The plan shall delineate regulated areas to
which this section applies. The plan shall also include but not
be limited to considerations of weather, volume of material to be
burned, distance of the burning from designated areas, burning
techniques and provisions for cessation of further burning under
adverse air quality conditions. All burning permitted within the
regulated areas shall be according to the plan. The plan shall be
developed by the { - State Forestry Department - } { + Oregon
Department of Natural Resources + } in cooperation with federal
and state agencies, landowners and organizations that will be
affected by the plan. The approved plan shall be filed with the
Secretary of State and may thereafter be amended in the same
manner as its formation.
(2) The { - State Forester - } { + Director of the Oregon
Department of Natural Resources + } shall promulgate rules to
carry out the provisions of the smoke management plan approved
under this section.
SECTION 1840. ORS 477.023 is amended to read:
477.023. (1) The forestland-urban interface in Oregon
represents a unique fire protection situation that requires that
unique and special measures be taken to ensure adequate public
safety and protection of property, development and natural
resources. Therefore, it is declared to be the public policy of
the State of Oregon to encourage and provide a complete and
coordinated forestland-urban interface fire protection system.
(2)(a) It is recognized that forestland-urban interface areas
are already subject to other laws and to regulations of other
agencies. It is the intent of ORS 477.015 to 477.061 to integrate
with and not replace those other laws and regulations.
(b) In the event of an apparent conflict between the
obligations imposed by ORS 477.015 to 477.061 and by other laws
or regulations for which the { - forester - } { + Director of
the Oregon Department of Natural Resources + } is responsible and
has jurisdiction, the { - forester - } { + director + } shall
resolve the conflict within the scope of the { - forester's - }
{ + director's + } authority.
(c) Except as provided in paragraph (d) of this subsection, the
obligations imposed by ORS 477.015 to 477.061 do not supersede or
replace federal law or regulation, other state law or rules, or
more restrictive local government ordinance or code.
(d) In the event of an apparent conflict between the
obligations imposed by ORS 477.015 to 477.061 and a more
restrictive local government ordinance or code, the { - State
Forester - } { + director + } may enter into a cooperative
agreement with the governing body of a local government, the
terms of which provide that ORS 477.015 to 477.061 supersede the
local government ordinance or code in specified cases.
(e) In the event of an apparent conflict between the
obligations imposed by ORS 477.015 to 477.061 and the
declaration, bylaws, rules or regulations of a homeowners
association, the
{ - State Forester - } { + director + } may enter into a
cooperative agreement with the homeowners association that allows
the declaration, bylaws, rules or regulations of the homeowners
association to supersede ORS 477.015 to 477.061 in specified
cases. The term of a cooperative agreement entered into under
this paragraph may not exceed five years.
(f) When a real property lot includes one or more structures
that have multiple owners, the { - State Forester - }
{ + director + } may enter into a cooperative agreement with one
or more of the owners, or a person designated as the
representative of the owners, for the purposes of matters related
to ORS 477.015 to 477.061. The term of a cooperative agreement
entered into under this paragraph may not exceed five years.
(g) Compliance with the obligations imposed by ORS 477.015 to
477.061 does not relieve the owner of land of the requirements of
other laws or regulations that might apply to the land in
question.
(3) To encourage development of a complete and coordinated
forestland-urban interface fire protection system, it is declared
to be in the public interest that the { - State Board of
Forestry and the State Forester - } { + director and the Oregon
Natural Resources Commission + } take a lead role in statewide
coordination of the forestland-urban interface situation with
other state and federal agencies, local governments and private
sector interests that are concerned with fire protection in the
forestland-urban interface.
SECTION 1841. ORS 477.027 is amended to read:
477.027. By administrative rule, the { - State Board of
Forestry - } { + Oregon Natural Resources Commission + } shall
establish criteria by which the forestland-urban interface shall
be identified and classified. The criteria shall recognize
differences across the state in fire hazard, fire risk and
structural characteristics within the forestland-urban interface.
The criteria shall include not less than three nor more than five
classes of forestland-urban interface.
SECTION 1842. ORS 477.029 is amended to read:
477.029. (1) Pursuant to a request by the { - State
Forester - } { + Director of the Oregon Department of Natural
Resources + }, the governing body of a county containing
forestland-urban interface may establish a county
forestland-urban interface classification committee of five
persons, of whom one shall be appointed by the
{ - State Forester - } { + director + }, one by the State
Fire Marshal and three by the governing body. Of the members
appointed by the governing body, one must be an owner of land
within the forestland-urban interface who permanently resides on
the land. Each appointing authority shall file with the
{ - State Forester - } { + director + } the name of its
appointee or appointees, and the persons so named shall
constitute the committee for the county. Unless otherwise
provided for by the appointing authority, members of the
committee shall serve a term of four years and may be reappointed
to any number of terms. Each member of the committee at all times
is subject to replacement by the appointing authority, effective
upon the filing with the { - State Forester - }
{ + director + } by that authority of written notice of the name
of the new appointee.
(2) The committee shall elect from among its members a chair
and a secretary and may elect other officers as it finds
advisable. The committee shall adopt rules governing its
organization and proceedings and the performance of its duties,
and shall keep written minutes of all its meetings. A quorum of
the county forestland-urban interface classification committee
for official actions is three members, and a quorum of a
committee established pursuant to subsection (4)(a) of this
section is four members.
(3) The governing body of the county may provide for the
committee and its employees such accommodations and supplies and
such county funds not otherwise appropriated as the governing
body finds necessary for the proper performance of the
committee's functions. The members of the committee shall receive
no compensation for their services, but the governing body may
reimburse them for their actual and necessary travel and other
expenses incurred in the performance of their duties. By written
agreement between the { - State Forester - } { + director + }
and the governing body, the { - State Forestry Department - }
{ + Oregon Department of Natural Resources + } may provide the
functions or be responsible for part or all of the expenses
referred to in this subsection.
(4) In the interest of efficiency, by written agreement between
the { - State Forester - } { + director + } and the governing
body, if a forestland classification committee is established and
active within a county pursuant to ORS 526.305 to 526.340, the
members of that committee may also serve on the county
forestland-urban interface classification committee established
by subsection (1) of this section. In the event that this
agreement is made, the
{ - State Forester - } { + director + } and the governing
body shall ensure that either:
(a) A State Fire Marshal appointee and an owner of land within
the forestland-urban interface who permanently resides on the
land are added to the county forestland classification committee
to bring the total number of committee members to seven; or
(b) The State Fire Marshal approves of the current membership
of the county forestland classification committee and the
committee includes an owner of land within the forestland-urban
interface who permanently resides on the land.
SECTION 1843. ORS 477.052 is amended to read:
477.052. (1) The county forestland-urban interface
classification committee shall hold a public hearing at the time
and place stated in the notice published under ORS 477.031 (3),
or at such other time and place to which the hearing may be
adjourned, to receive from any interested persons objections,
remonstrances or suggestions relating to the proposed
designations and classifications. Following the hearing the
committee may make such changes in the proposed designations and
classifications as it finds to be proper, hold additional
hearings as it finds necessary, and thereafter shall make final
designations and classifications.
(2) All final action by the committee in designating and
classifying forestland-urban interface shall be by formal written
order, which must include a statement of findings of fact on the
basis of which the order is made, and must include a list of all
land designated and classified. The committee shall prepare one
or more maps showing the final designations and classifications
made. The original of the order shall be filed with the county
clerk of the county. The order need not meet the requirements of
ORS 205.232 to be filed and recorded. A copy of the order
certified by the secretary of the committee shall be sent to the
{ - State Forester - } { + Director of the Oregon Department
of Natural Resources + }.
(3) Copies of the order, lists of land and maps required by
this section shall be maintained in designated offices of the
{ - forester - } { + director + } where they shall be made
available for public inspection.
SECTION 1844. ORS 477.054 is amended to read:
477.054. (1) Any owner of land designated and classified under
ORS 477.027 to 477.057 who is aggrieved by the designation or
classification may, within 30 days after the date of the order
making the designation and classification, appeal to the circuit
court for the county. Notice of an appeal shall be promptly
served on the secretary of the committee or, if the designation
and classification was made under ORS 477.057, on the { - State
Forester - } { + Director of the Oregon Department of Natural
Resources + }.
(2) The appeal shall be tried by the circuit court as an action
not triable by right to a jury.
SECTION 1845. ORS 477.057 is amended to read:
477.057. (1) The { - State Forester - } { + Director of the
Oregon Department of Natural Resources + } may designate and
classify forestland-urban interface, consistent with and as
described in ORS 477.031 to 477.054, if a designation and
classification of forestland-urban interface is not made by the
county forestland-urban interface classification committee within
a county in which such land is situated because:
(a) The governing body of the county fails to establish a
county forestland-urban interface committee within two years
after the { - State Forester - } { + director + } makes a
request under ORS 477.029 (1);
(b) The committee fails to make a designation and
classification within five years after being appointed, or the
committee fails to make a designation and classification within
five years of the last designation and classification made by the
committee; or
(c) The committee fails to make a designation and
classification in a manner consistent with ORS 477.031 to
477.054.
(2) Designation and classification by the { - State
Forester - } { + director + } has the same force and effect as
though made by a committee for that county. However, designations
and classifications made by the { - State Forester - }
{ + director + } cease to be effective if replaced by
designations and classifications made pursuant to ORS 477.052 by
the appropriate committee.
SECTION 1846. ORS 477.059 is amended to read:
477.059. (1)(a) The { - State Board of Forestry - }
{ + Oregon Natural Resources Commission + } shall by rule
establish minimum standards for minimizing or mitigating:
(A) Fire hazards or risks on land within a forestland-urban
interface due to the presence of structures or the arrangement or
accumulation of vegetative fuels; and
(B) Other fire hazards or risks or combinations of fire hazards
or risks.
(b) In adopting rules under this subsection, the
{ - board - } { + commission + } shall take into account the
variability of the forestland-urban interface in different parts
of the state.
(c) An owner of land within a forestland-urban interface must
comply with the minimum standards applicable to the land.
(2)(a) Except as provided in paragraph (b) of this subsection,
but no more frequently than once every five years, the
{ - State Forester - } { + Director of the Oregon Department
of Natural Resources + } shall provide written notice of the
applicable minimum standards established under this section to
each owner of land within a forestland-urban interface, unless
the owner requests a copy more frequently.
(b) The { - board - } { + commission + } need not give
notice under paragraph (a) of this subsection to an owner of land
if the owner is a member of a homeowners association by reason of
owning the land and the { - State Forester - }
{ + director + } has entered into a cooperative agreement with
the homeowners association pursuant to ORS 477.023 (2)(e) that
provides for notice to owners through the association.
(3) An owner of land within a forestland-urban interface must
certify in writing to the { - State Forester - }
{ + director + } that the owner has complied with the applicable
minimum standards established under this section not later than
two years after the order designating the land as being within
the forestland-urban interface is filed with the county clerk
under ORS 477.052 (2). If a subsequent order is filed that
changes the classification of the land, the owner of the land
must make a supplemental certification in writing to the
{ - State Forester - } { + director + } that reflects the
measures that the owner has taken to comply with the applicable
minimum standards established under this section for the new
classification not later than six months after the new order is
filed.
(4) The { - State Forester - } { + director + } shall
accept certifications made to the { - forester - }
{ + director + } under subsection (3) of this section. Any owner
of land whose written certification has been accepted by the
{ - State Forester - } { + director + } under this subsection
is not liable for the costs of suppressing a fire under
subsection (6) of this section, unless the { - State
Forester - } { + director + } subsequently determines that the
owner of land has provided a false certification.
(5) The { - State Board of Forestry - } { + commission + }
may require periodic renewal of a certification accepted by the
{ - State Forester - } { + director + } under subsection (4)
of this section, and may require supplemental certifications from
the owner of land that reflect the measures that the owner has
taken to comply with the applicable minimum standards established
under this section. An owner of land is responsible for
maintaining the land described by the certification in compliance
with the applicable minimum standards established under this
section.
(6) The owner of land designated to be within a
forestland-urban interface is liable to the { - State
Forester - } { + director + } for the costs of suppressing a
fire that occurs on that land, as described in subsection (7) of
this section, if:
(a) The owner has failed to meet the applicable minimum
standards established under this section;
(b) The fire originates on the owner's land;
(c) The ignition or spread of the fire is directly related to
the owner's failure to meet the applicable minimum standards
established under this section; and
(d) The fire requires action by the { - forester - }
{ + director + } pursuant to ORS 477.066 (2).
(7) The liability of an owner of land under subsection (6) of
this section may not exceed $100,000. The { - State
Forester - } { + director + } may not seek recovery under
subsection (6) of this section for any portion of the costs of
suppressing a fire that are the ordinary costs of the regular
personnel and equipment of the forest protection district in
which the land is located. This subsection does not limit the
liability of the owner under ORS 477.120.
SECTION 1847. ORS 477.060 is amended to read:
477.060. (1) In determining the annual cost of protection
pursuant to ORS 477.230, the { - forester - } { + Director of
the Oregon Department of Natural Resources + } may consider and
include the special or additional cost of fire protection for
property owners within a forestland-urban interface
classification, including the special or unique costs of
assessment processing and administration.
(2) The { - forester - } { + director + } shall identify
special or additional costs identified by subsection (1) of this
section in the budget required by ORS 477.230 to 477.300. These
special or additional costs are in addition to the annual cost of
ORS 477.230 (1) and may not exceed $25 annually for each real
property lot. Only those owners of land within a
forestland-urban interface classification in a forest protection
district shall bear the special or additional cost of fire
protection within the forestland-urban interface in a manner
consistent with rules promulgated by the { - State Board of
Forestry - } { + Oregon Natural Resources Commission + }.
SECTION 1848. ORS 477.062 is amended to read:
477.062. (1) All forestland that by reason of its lack of
adequate fire protection endangers life, forest resources or
property is declared to be a public nuisance.
(2) Whenever the { - forester learns thereof, the
forester - } { + Director of the Oregon Department of Natural
Resources learns of a public nuisance under subsection (1) of
this section, the director + } may direct the owner or operator
of such forestland to take proper steps for its protection and
advise the owner or operator of means to that end. In case of
refusal or neglect by either to take precautions against fire
required by law or when so directed by the { - forester - }
{ + director + } in writing, within such time as is specified in
the writing, then the { - forester - } { + director + } may
have such work done as the { - forester - } { + director + }
considers necessary for the protection of life, forest resources
or property, without the necessity of court action.
(3) The cost of work under subsection (2) of this section and
the expense of any patrol rendered necessary by the want of
adequate protection of such forestland shall be recoverable from
the offender by an action prosecuted in the name of the state.
(4) All moneys collected under this section shall be { - paid
into the State Treasury, credited to the State Forestry
Department Account and expended as other moneys in that account
are expended - } { + deposited in the Oregon Natural Resources
Fund and are continuously appropriated to the Oregon Department
of Natural Resources for purposes related to the administration
of this chapter and ORS chapter 526 + }.
SECTION 1849. ORS 477.066 is amended to read:
477.066. (1) Each owner and operator of forestland on which a
fire exists or from which it may have spread, notwithstanding the
origin or subsequent spread thereof, shall immediately proceed to
control and extinguish such fire when its existence comes to the
knowledge of the owner or operator, without awaiting instructions
from the { - forester - } { + Director of the Oregon
Department of Natural Resources + }, and shall continue until the
fire is extinguished.
(2) If the { - forester - } { + director + } determines the
fire is either burning uncontrolled or the owner or operator does
not then have readily and immediately available personnel and
equipment to control or extinguish the fire, the
{ - forester - } { + director + }, or any forest protective
association or agency under contract or agreement with the
{ - State Board of Forestry - } { + Oregon Natural Resources
Commission + } for the protection of forestland against fire, and
within whose protection area the fire exists, shall summarily
abate the nuisance thus constituted by controlling and
extinguishing the fire.
(3) An owner may request in writing that the { - forester - }
{ + director + } employ alternate fire prevention and
suppression strategies or techniques on the owner's forestland.
The { - forester - } { + director + } may employ some or all
of the requested strategies or techniques when, in the judgment
of the { - forester - } { + director + }, conditions warrant
the use of the alternate strategies or techniques.
SECTION 1850. ORS 477.068 is amended to read:
477.068. (1) In case an owner or operator fails to perform the
duty required by ORS 477.066, or is willful, malicious or
negligent in the origin or subsequent spread of the fire, the
actual cost incurred by the { - forester - } { + Director of
the Oregon Department of Natural Resources + } or a forest
protective association or agency in controlling or extinguishing
the fire shall be paid by the owner or operator within 90 days
after the date on which the first written demand for payment of
the actual cost is mailed by the { - State Forester - }
{ + director + } to the owner or operator. If the actual cost is
not paid within such 90-day period, such amount shall bear
interest at 10 percent per year from the date on which the first
written demand for the payment of the actual costs was mailed by
the { - State Forester - } { + director + } and the actual
cost together with such interest may be recovered from such owner
or operator by an action prosecuted in the name of the State of
Oregon, or such forest protective association or agency, or both.
(2) An itemized statement of the actual cost incurred by the
{ - forester or association or agency, or both, certified to by
the forester, - } { + director, association or agency and
certified to by the director + } shall be accepted as prima facie
evidence of the actual cost in any proceeding authorized by this
section.
(3) The actual cost in cases covered by ORS 477.066 shall
constitute a general lien upon the real and personal property of
such owner or operator. A written notice of the lien, containing
a description of the property and a statement of the actual cost,
shall be certified under oath by the { - forester - }
{ + director + } or any warden and filed in the office of the
county clerk of the county in which the lands and personal
property are situated within 12 months after the calendar year
within which the fire originated, and may be foreclosed in the
manner provided by law for foreclosure of liens for labor and
material. In any proceeding to foreclose a lien created under
this subsection, recovery for the plaintiff shall include, in
addition to the amount of the actual cost, interest on such
amount at the rate of 10 percent per year from the date of the
filing of the written notice of the lien.
(4) Upon request of the { - forester - } { + director + },
the district attorney for the district in which the lands and
personal property are situated or the Attorney General shall
prosecute such action or foreclose the lien in the name of the
State of Oregon or such forest protective association or agency,
or both. Liens provided for in this section shall cease to exist
unless suit for foreclosure is instituted within 12 months from
the date of filing under subsection (3) of this section.
(5) In any action under subsection (1) of this section to
recover actual cost and in any proceeding to foreclose any lien
created by subsection (3) of this section, the court shall award,
in addition to costs and disbursements, reasonable attorney fees
at trial and on appeal to the prevailing party.
SECTION 1851. ORS 477.085 is amended to read:
477.085. Any person who willfully or negligently sets a fire or
causes a fire to be set for which efforts to control or
extinguish the fire in order to protect forestland within a
forest protection district from fire are exerted by the
{ - forester - } { + Director of the Oregon Department of
Natural Resources + } or any forest protective association or
agency under contract or agreement with the { - State Board of
Forestry - } { + Oregon Natural Resources Commission + } is
liable for the actual costs incurred by the { - forester, - }
{ + director, + } association or agency in such efforts. The
costs shall be recovered from the person liable therefor in the
same manner as costs recovered under ORS 477.068.
SECTION 1852. ORS 477.100 is amended to read:
477.100. (1) The { - State Forester - } { + Director of the
Oregon Department of Natural Resources + }, or any agency or
organization with responsibility under this chapter to suppress
fires, may not prohibit an owner or the owner's agent from
suppressing a fire occurring on the owner's property or that
poses a threat to the owner's property.
(2) Notwithstanding subsection (1) of this section, the
{ - forester - } { + director + }, agency or organization may
prohibit an owner or the owner's agent from suppressing a fire if
the owner or agent conducts the action in a manner that the
{ - forester - } { + director + }, agency or organization
reasonably determines is likely to increase the risk of injury or
damage to the personnel or equipment of the
{ - forester - } { + director + }, agency or organization.
SECTION 1853. ORS 477.120 is amended to read:
477.120. (1) Except as provided in subsections (2) and (3) of
this section, the owner or operator of forestland is not subject
to the obligations or penalties of ORS 164.335 and 477.740 or
477.064, 477.066 and 477.068 if:
(a) Forest patrol assessments are regularly paid for the
forestland;
(b) Such forestland is protected pursuant to membership in a
forest protective association in accordance with ORS 477.210,
which association has undertaken the control and suppression of
fires on such land as provided in the contract; or
(c) Such forestland is protected pursuant to cooperative
agreement or contract under ORS 477.406.
(2) The provisions of subsection (1) of this section do not
apply to such owner or operator if the owner or operator:
(a) Is willful, malicious or negligent in the origin or
subsequent spread of a fire on such forestland;
(b) Has caused or permitted an operation to exist on such
forestland and a fire originates thereon as a result of the
operation;
(c) Has failed to give notice to the { - forester - }
{ + Director of the Oregon Department of Natural Resources + }
pursuant to ORS 527.670 (6), has failed to obtain a permit for
the use of fire in any form or power-driven machinery pursuant to
ORS 477.625 or has failed within the time prescribed in any order
or notice issued by the
{ - forester - } { + director + } to reduce, abate, or offset
any hazard determined to exist pursuant to ORS 477.062 or 477.580
and a fire originates on or spreads to the area on which such
hazard exists and for which no release has been granted pursuant
to ORS 477.580 (3) or (4); or
(d) Has caused or allowed any burning, including burning
regulated by ORS 477.013 or 477.515, whether or not a permit has
been obtained and a fire results from or is caused by such
burning.
(3) Unless subsection (2)(a) or (c) of this section applies,
the owner or operator shall not be obligated to pay that portion
of the actual costs provided in ORS 477.068 which are the
ordinary costs of the regular personnel and equipment of the
forest protection district wherein the forestland is located.
(4) If subsection (2)(b) or (d) of this section applies and
subsection (2)(a) and (c) of this section do not apply, the owner
or operator shall not be liable to the { - forester - }
{ + director + } for fire suppression costs in excess of
$300,000.
(5) The provisions of subsections (3) and (4) of this section
do not apply to the owner or operator if the owner or operator
fails to make every reasonable effort.
(6) For the purpose of subsection (2)(b) of this section, if a
fire originates while an operation is in progress, there is a
presumption, under ORS 40.120, that the fire originated as a
result of the operation.
SECTION 1854. ORS 477.125 is amended to read:
477.125. (1) A forest protective association, rangeland
protection association organized under ORS 477.317 or public body
as defined in ORS 174.109, or a person acting as an agent of a
forest protective association, rangeland protection association
or public body, is not liable for any injury to persons or
property resulting from carrying out the provisions of this
chapter or while acting within the scope of a duty imposed by
this chapter.
(2) The exemption from liability provided by subsection (1) of
this section does not apply to any injury to persons or property
resulting from willful misconduct or gross negligence.
(3) An employee of a forest protective association, or a person
acting as an agent of a forest protective association, is an
agent of a public body acting within the scope of their duties
for purposes of ORS 30.260 to 30.300, if the person:
(a) Engages in fire fighting activities occurring on lands
located outside of the forest protection district in which the
association is located; and
(b) Acts under the direction and control of the
{ - forester - } { + Director of the Oregon Department of
Natural Resources + }.
SECTION 1855. ORS 477.180 is amended to read:
477.180. If the Northwest Wildland Fire Protection Agreement is
amended in accordance with Article IX of the agreement, the
Governor shall invoke Article X of the agreement to withdraw from
the agreement until such time as the Legislative Assembly
ratifies the amendment, or during the interim between legislative
sessions, until such time as the { - State Forester - }
{ + Director of the Oregon Department of Natural Resources + }
submits the amendment to the Emergency Board for review. The
{ - State Forester - } { + director + } shall submit any
amendment reviewed by the Emergency Board to the next Legislative
Assembly for ratification. If the Legislative Assembly does not
ratify the amendment prior to adjournment sine die, the Governor
shall immediately invoke Article X of the agreement to withdraw
from the agreement.
SECTION 1856. ORS 477.190 is amended to read:
477.190. The Governor may take any action necessary to carry
out the Northwest Wildland Fire Protection Agreement as set forth
in ORS 477.200. The Governor may delegate the authority granted
under this section or ORS 477.180 and 477.185 to the { - State
Forester - } { + Director of the Oregon Department of Natural
Resources + }.
SECTION 1857. ORS 477.210 is amended to read:
477.210. (1) During the season of the year when there is danger
of fire, every owner of forestland shall provide adequate
protection against the starting or spread of fire thereon or
therefrom, which protection shall meet with the approval of the
{ - State Board of Forestry - } { + Oregon Natural Resources
Commission + }.
(2) Subsection (1) of this section is considered to have been
complied with if, on January 1 of each year, the owner:
(a) Files with the { - forester - } { + Director of the
Oregon Department of Natural Resources + } a bona fide forest
protection plan that meets with the approval of the
{ - board - } { + commission + }; or
(b) Is a member in good standing in a forest protective
association maintaining a standard of protection approved by the
{ - board - } { + commission + }.
(3) The { - forester - } { + director + } shall make
periodic inspections of the protection facilities provided in
order to ascertain compliance by the owner.
(4) In case any owner of forestland shall fail or neglect to
file such a fire plan or maintain the standard of protection
approved by the { - board - } { + commission + }, either
through compliance with the fire plan or membership in an
approved association, then the
{ - forester - } { + director + } under the direction of the
{ - board - } { + commission + } shall provide forest
protection pursuant to ORS 477.205 to 477.281.
(5) The { - forester - } { + director + } shall provide
protection pursuant to ORS 477.205 to 477.281 for forestland
owned by the state or by a political subdivision located within a
forest protection district, unless adequate protection as
required by this section is otherwise provided.
SECTION 1858. ORS 477.220 is amended to read:
477.220. (1) The { - forester - } { + Director of the
Oregon Department of Natural Resources + } is not required to
provide protection for forestland that is either a small parcel
or a tract isolated from a forest protection district and which
land is found by the
{ - forester - } { + director + } as not practicable to be
included in a forest patrol system.
(2) ORS 477.205 to 477.281 do not apply to federal grazing land
or federal timberland within this state for which adequate
protection is provided unless the lands have been included within
the boundaries of a forest protection district pursuant to a
cooperative agreement with the federal government approved by the
{ - State Board of Forestry - } { + Oregon Natural Resources
Commission + }.
(3) Upon written request of the owner of lands that have been
incorporated within a rural fire protection district, the
{ - forester - } { + director + } shall determine whether the
lands, or any part thereof, are forestland. Thereafter, those
lands that have been so determined shall be included within ORS
477.205 to 477.281 unless excluded pursuant to subsection (1) of
this section.
SECTION 1859. ORS 477.225 is amended to read:
477.225. The { - State Forester - } { + Director of the
Oregon Department of Natural Resources + }, by rule, shall
designate areas of forestland within this state as forest
protection districts within which the { - forester - }
{ + director + } is required to provide protection pursuant to
this chapter. In establishing new boundaries or changes in
boundaries of the districts, the { - State Forester - } { +
director + } may, for the purposes of administrative convenience,
designate mountain ranges, rivers, streams, roads or other
recognizable landmarks as boundaries. Boundaries may be
established or changed only after a public hearing.
SECTION 1860. ORS 477.230 is amended to read:
477.230. (1) The annual cost of protection provided by the
{ - forester - } { + Director of the Oregon Department of
Natural Resources + } for forestland within a forest protection
district shall be as follows:
(a) Grazing land within the district shall be protected by the
{ - forester - } { + director + } at a pro rata cost per acre
for all grazing land within the district boundary. However,
forest patrol assessments levied and assessed under ORS 477.270
against such lands that are not owned by public agencies may not
exceed one-half of the pro rata cost per acre, exclusive of any
assessment per acre under ORS 477.880.
(b) Timberland within the district shall be protected by the
{ - forester - } { + director + } at a pro rata cost per acre
for all timberland within the district boundary. However, forest
patrol assessments levied and assessed under ORS 477.270 against
such lands that are not owned by public agencies may not exceed
one-half of the pro rata cost per acre, exclusive of any
assessment per acre under ORS 477.880.
(2) The cost of protection described in this section shall be
in accordance with a budget for the district approved by the
{ - State Board of Forestry - } { + Oregon Natural Resources
Commission + }.
SECTION 1861. ORS 477.232 is amended to read:
477.232. Subject to the forest patrol assessment limitations
set forth in ORS 477.230:
(1) Actual costs incurred by the { - forester - }
{ + Director of the Oregon Department of Natural Resources + }
in the prevention and suppression of fire on grazing land or
timberland located within a forest protection district, in excess
of the amount budgeted as required by ORS 477.230, but not
including those costs eligible for equalization by the Oregon
Forest Land Protection Fund, shall be, without regard to
proceedings for the collection of the costs:
(a) Included in the budget for the next fiscal year; and
(b) Levied and assessed against the grazing land or timberland
in the district.
(2) Budgeted amounts not expended may be carried forward as a
credit to the assessment rate for the ensuing year.
SECTION 1862. ORS 477.235 is amended to read:
477.235. The { - forester - } { + Director of the Oregon
Department of Natural Resources + } shall prepare tentative
budget estimates for each forest protection district for the
ensuing fiscal year beginning July 1, in a manner consistent with
accounting and budgetary procedures prescribed by the { - State
Board of Forestry - } { + Oregon Natural Resources
Commission + }.
SECTION 1863. ORS 477.240 is amended to read:
477.240. In any forest protection district wherein the
{ - forester - } { + Director of the Oregon Department of
Natural Resources + } has entered into a cooperative agreement or
contract with a forest protective association or agency described
in ORS 477.406 (1), and the association or agency has appointed
an advisory and guidance committee for the purposes of analysis
and review of the protection plans and budgets for the district,
the { - forester - } { + director + } shall prepare the
protection plans and budgets in conjunction with the committee.
SECTION 1864. ORS 477.245 is amended to read:
477.245. (1) All owners of lands assessed under ORS 477.205 to
477.281 shall have an opportunity to be heard on matters
pertaining to the budgeting of moneys required to defray the cost
of protection in each forest protection district. The
{ - forester - } { + Director of the Oregon Department of
Natural Resources + }, under the direction of the { - State
Board of Forestry - } { + Oregon Natural Resources
Commission + }, shall provide for the holding of a public budget
meeting in each district on or before May 1 of each year. The
meeting shall be held at any convenient place designated by the
{ - forester - } { + director + }.
(2) In forest protection districts wherein the { - board - }
{ + commission + } has entered into cooperative agreements or
contracts with forest protective agencies, the { - board - }
{ + commission + } may make provision for the holding of the
public budget meeting required in subsection (1) of this section
on the same date and at the same place as a regular meeting of
the agency.
SECTION 1865. ORS 477.250 is amended to read:
477.250. (1) Not more than four weeks preceding each budget
meeting, the { - forester - } { + Director of the Oregon
Department of Natural Resources + } shall cause notice of such
meeting to be published once a week for two consecutive weeks in
one or more newspapers published in or having general circulation
in each of the counties in the forest protection district and in
such other media of communication as the { - forester - }
{ + director + } finds advisable. However, the final
publication shall be made at least one week prior to the date of
the meeting. The notice shall state the time and place where the
tentative budget for the district may be inspected and shall
state the time and place of the meeting.
(2) Whenever the { - forester - } { + director + }
determines that any privately owned land should be subject to
assessment for forest protection and such land was not subject to
the assessment during the preceding year, the { - forester - }
{ + director + } shall give written notice by mail of the
determination to each owner of such land not later than March 1
of the year the assessment is to be made. The notice shall inform
the owner of the acreage and tax lot number of the lands to be
assessed and the name and address of the nearest representative
of the { - forester - } { + director + } the owner may
contact if review of the proposed assessment is desired. The
notice shall also inform the owner of the procedure for hearing
and appeals prescribed in ORS 477.205 to 477.281.
SECTION 1866. ORS 477.255 is amended to read:
477.255. (1) The public budget meeting shall be held at the
time and place as stated in the published notice, or at such
other time and place to which the meeting may be adjourned.
(2) { - A member of the State Board of Forestry, or the
forester, - } { + The Director of the Oregon Department of
Natural Resources or the director's designee + } shall act as
chairperson of the meeting. The { - forester shall cause the
minutes of the meeting to be preserved - } { + chairperson
shall preserve the minutes of the meeting + } as a public record.
(3) During the meeting the chairperson shall receive from any
interested persons suggestions, advice, objections or
remonstrances as to the proposed budget for that forest
protection district. The { - forester, under the direction of
the board, - } { + director, under the direction of the Oregon
Natural Resources Commission + } may make changes in the budget
proper and consistent with law, and thereafter submit the budget
for final approval under ORS 477.265.
SECTION 1867. ORS 477.260 is amended to read:
477.260. (1) Any owner of grazing land or timberland within the
boundary of the forest protection district who is adversely
affected by the proposed budget may file an appeal within 30 days
after the date of the public budget meeting.
(2) Any owner of grazing land or timberland subject to ORS
477.205 to 477.281 shall, upon request, be granted a hearing by
the { - State Board of Forestry - } { + Oregon Natural
Resources Commission + } on any subject pertaining to the
activities of the { - forester or board affecting - }
{ + Director of the Oregon Department of Natural Resources or
the commission that affect + } the land.
(3) Appeals and hearings shall be conducted by the { - board
in accordance with rules adopted pursuant to ORS 526.016 (4). - }
{ + commission. In accordance with ORS chapter 183, the
commission shall adopt rules to implement this subsection. + }
SECTION 1868. ORS 477.265 is amended to read:
477.265. The { - State Board of Forestry - } { + Oregon
Natural Resources Commission + } shall annually review the forest
protection district budgets, make any changes in the budgets that
are proper and consistent with law, and pass final approval on
all district budgets and the prorated acreage rates therein.
SECTION 1869. ORS 477.270 is amended to read:
477.270. (1) Subject to the forest patrol assessment
limitations set forth in ORS 477.230:
(a) The budgeted cost of the { - forester - } { + Director
of the Oregon Department of Natural Resources + }, as provided
for in ORS 477.205 to 477.281, in providing protection for
privately owned forestland shall be a lien upon such property,
shall be reported by the { - forester - } { + director + } to
the governing body of the county in which the lands are situated
on or after July 1 of each fiscal year, and shall be levied and
collected by the governing body with the next taxes on the land
in the same manner and with the same interest, penalty and cost
charges as apply to ad valorem property taxes in this state. The
governing body shall instruct the proper officer to extend the
amounts on the assessment roll in a separate account, and the
procedure provided by law for the collection of taxes and
delinquent taxes shall apply. Upon collection thereof, the
governing body shall repay the entire amount collected to the
{ - forester - } { + director + }.
(b) In lieu of the procedures under paragraph (a) of this
subsection, the { - forester, under the direction of the State
Board of Forestry, - } { + director, under the direction of the
Oregon Natural Resources Commission, + } may make direct billing
of the budgeted cost to owners of forestland and receive payment
of the cost therefrom. In the event that under such billing
procedures any owners fail to make payment, the unpaid budgeted
cost shall become a lien against the property so billed and shall
be levied and collected with the next taxes on such property as
described in paragraph (a) of this subsection.
(c) The budgeted cost of the { - forester - }
{ + director + } in providing protection for forestland owned by
the state or by a political subdivision shall be paid to the
{ - forester - } { + director + } on or before the first day
of January of the fiscal year for which such protection is to be
provided.
(2) Except as provided in ORS 477.230 (2), all moneys received
by the { - forester - } { + director + } pursuant to this
section shall be { - paid into the State Treasury, credited to
the State Forestry Department Account and used exclusively for
the purposes of - } { + deposited in the Oregon Natural
Resources Fund. Money deposited in the fund under this subsection
are continuously appropriated to the Oregon Department of Natural
Resources for the purpose of administering + } ORS 477.205 to
477.281.
SECTION 1870. ORS 477.277 is amended to read:
477.277. (1) In addition to any other assessment prescribed by
ORS 477.205 to 477.281, in any fiscal year in which the Emergency
Fire Cost Committee determines pursuant to ORS 477.760 that the
unencumbered balance of the Oregon Forest Land Protection Fund is
less than $22.5 million, a surcharge shall be levied and assessed
in the amount of $47.50 for each improved lot or parcel, except
as provided in ORS 477.760, to defray the increased cost of fire
suppression on forestland that is caused by the existence of the
improvements.
(2) All surcharge moneys collected pursuant to this section
shall be paid into the Oregon Forest Land Protection Fund.
(3) If an owner of forestland files { + with the Director of
the Oregon Department of Natural Resources + } a forest
protection plan
{ - with the forester which is approved by the State Board of
Forestry - } { + that is approved by the Oregon Natural
Resources Commission + } under ORS 477.210 (2), the owner shall
not be required to pay the surcharge levied under subsection (1)
of this section.
(4) Contiguous lots included in a combined lot that is
described in ORS 477.295 (3)(a) and whose owner has made
application to the { - forester - } { + director + } under
ORS 477.295 (4) are considered one lot for purposes of subsection
(1) of this section.
(5) As used in this section, a lot or parcel is 'improved ' if
it is indicated as improved in the county assessor's property
classification files or if a manufactured dwelling is sited on
the lot or parcel.
SECTION 1871. ORS 477.295 is amended to read:
477.295. (1) For purposes of making the levy and assessment of
costs against forestland under ORS 477.270, the minimum cost to
provide fire protection or suppression for any lot or parcel of
real property separately assessed for ad valorem taxes or other
taxes provided by law in lieu thereof, on the current assessment
roll shall be not less than $18.75, except as provided in ORS
477.760. Three dollars and seventy-five cents of each minimum
assessment shall be paid into the Oregon Forest Land Protection
Fund. Otherwise, such assessments shall be determined under ORS
477.230 and 477.270.
(2) In any fiscal year in which the Emergency Fire Cost
Committee determines pursuant to ORS 477.760 that the
unencumbered balance of the Oregon Forest Land Protection Fund
has:
(a) Increased to an amount:
(A) More than $22.5 million but less than or equal to $30
million, the minimum assessment referred to in subsection (1) of
this section shall be $16.88 for each lot or parcel. Of that
amount, $1.88 of each minimum assessment shall be paid into the
Oregon Forest Land Protection Fund.
(B) More than $30 million, the minimum assessment referred to
in subsection (1) of this section shall be $15 for each lot or
parcel. This amount shall be treated in the same manner as
assessments under ORS 477.230 and 477.270.
(b) Decreased to an amount that is at or below $22.5 million,
the minimum assessment referred to in subsection (1) of this
section shall be $18.75 for each lot or parcel. This amount shall
be treated in the same manner as assessments under subsection (1)
of this section.
(3) Upon application to the { - forester - } { + Director
of the Oregon Department of Natural Resources + } under
subsection (4) of this section, contiguous lots held under
identical ownership shall be considered as one combined lot for
purposes of subsection (1) of this section. However, the
following may not be included in a combined lot:
(a) Except as provided in this paragraph, a lot on which a
structure has been placed or improvements made for the purpose of
erecting any temporary or permanent structure. One lot on which a
single-family dwelling has been placed, and lots on which the
structures and improvements that are appurtenant to that
single-family dwelling have been placed, may be included in a
combined lot that does not exceed 20 acres.
(b) A lot that is in a subdivision containing lots that have
been or are being offered for sale.
(c) A lot that is not designated forest or agricultural land
for the purpose of land use or special tax assessment purposes.
(4) To qualify under subsection (3) of this section, an owner
of forestland shall make application to the { - forester - }
{ + director + } no later than April 15 of the fiscal year
preceding each fiscal year for which the owner desires the land
to be assessed under subsection (3) of this section. The
application shall be on a form prescribed by the { - State
Forester - } { + director + }. A fee of $25 per combined lot
shall be paid to the { - forester - } { + director + } at the
time of first application for the combined lot. An additional fee
of $25 per combined lot shall be paid to the { - forester - }
{ + director + } at the time of subsequent application, if an
application for the combined lot was not made for the previous
fiscal year.
(5) The { - State Board of Forestry - } { + Oregon Natural
Resources Commission + } may adopt rules for the administration
of the provisions of subsections (3) and (4) of this section.
(6) For the purposes of this section, 'lot' and ' subdivision'
have the meanings given those terms in ORS 92.010.
SECTION 1872. ORS 477.300 is amended to read:
477.300. (1) Moneys available at any time in the { - State
Forestry Department Account - } { + Oregon Natural Resources
Fund + } for the purposes of this chapter, particularly
{ + moneys available under + } ORS 477.205 to 477.281, which
{ - moneys - } are not specifically obligated for other
purposes, may be used by the { - forester - } { + Director of
the Oregon Department of Natural Resources + } with the approval
of the
{ - State Board of Forestry - } { + Oregon Natural Resources
Commission + } for capital outlay expenditures in any forest
protection district. Prior to the making of such capital outlay
expenditures, the
{ - forester and board - } { + director or commission + } may
specify that the account shall be reimbursed for all or a part of
such expenditures, over a period not to exceed 10 years, from any
one or a combination of the following sources:
(a) Forest patrol assessments of the district involved.
(b) Moneys derived from an association under ORS 477.406.
(c) Moneys derived from municipal, county, state or federal
agencies under this chapter, for the protection of their
forestland from fire.
(2) Any reimbursement of capital outlay expenditures required
by the { - forester and board - } { + director or
commission + } under subsection (1) of this section shall be a
pro rata amount from the source or sources involved, based upon
forestland acreage being protected in the district for which the
expenditures are made.
SECTION 1873. ORS 477.305 is amended to read:
477.305. The { - forester - } { + Director of the Oregon
Department of Natural Resources + } is authorized to enforce the
provisions of ORS 164.805 insofar as such affects forestland
within forest protection districts established under this
chapter.
SECTION 1874. ORS 477.317 is amended to read:
477.317. (1) Any group of owners of rangeland that is within a
rangeland protection system established under ORS 477.320, and
that lies wholly outside any forest protection district, may
organize a rangeland protection association for the purpose of
protecting the rangeland from fire. The { - forester - }
{ + Director of the Oregon Department of Natural Resources + }
may enter into cooperative agreements or contracts with a
rangeland protection association under the provisions of ORS
477.320 for the purpose of providing the assistance specified in
subsection (2) of this section.
(2) The { - forester - } { + director + } may assist a
rangeland protection association with organizing the association,
training association members and acquiring firefighting equipment
for the association. The { - forester - } { + director + }
may also assist a rangeland protection association with payment
for liability insurance and other administrative expenses of the
association, which may not exceed 50 percent of the total of
budgeted operating costs and the cash equivalent of in-kind
supplies and services of the association in any fiscal year. The
costs of assistance specified in this subsection may not be paid
from funds assessed from forestland owners under ORS 477.230.
SECTION 1875. ORS 477.320 is amended to read:
477.320. (1) Owners of rangeland may request the { - State
Board of Forestry - } { + Oregon Natural Resources
Commission + } to hold a hearing on the subject of providing
protection from fire for rangeland. Upon receipt of such
request, the { - board - } { + commission + } or its
authorized representative shall hold one or more public hearings
in order to receive from interested persons information relating
to the providing of such protection, and shall cause public
notice of the time and place of each hearing to be given. The
{ - board - } { + commission + } or its authorized
representatives shall keep the records of the proceedings of such
hearings as public records.
(2) After the hearing referred to in subsection (1) of this
section, the { - board - } { + commission + } shall determine
whether the rangeland should be included within a protection
system. If the
{ - board - } { + commission + } determines that rangeland
should be included in a rangeland protection system, the
{ - board - } { + commission + }, in cooperation with
interested persons, shall establish the extent and type of
protection to be provided and direct the { - forester - } { +
Director of the Oregon Department of Natural Resources + } or a
rangeland protection association organized under ORS 477.317 to
provide the protection. Such protection shall be commensurate
with the values and uses of the rangeland to be protected.
(3) After proceedings under subsections (1) and (2) of this
section, the { - forester - } { + director + } or a rangeland
protection association organized under ORS 477.317 shall provide
the type and extent of protection determined under subsection (2)
of this section for rangeland determined to be included within a
protection system under subsection (2) of this section. For the
purpose of providing such protection, the { - forester - }
{ + director + } and a rangeland protection association may
enter into cooperative agreements or contracts with each other
or, jointly or separately, with owners of rangeland, individuals,
associations, corporations, road districts, rural fire protection
districts or agencies of the federal government.
SECTION 1876. ORS 477.325 is amended to read:
477.325. (1) Before June 1 each year, the owners of rangeland
to be protected under ORS 477.320, including all rangeland
protection associations organized under ORS 477.317, shall
prepare in cooperation with the { - State Board of Forestry - }
{ + Oregon Natural Resources Commission + } or its authorized
representative { - , and submit to the board, - } { + for
submission to the commission + } a proposed budget for the fiscal
year beginning on the next succeeding July 1. The budget shall
include the proposed cost of such protection. At the meeting of
the { - board - } { + commission + } under ORS 477.265, the
{ - board - } { + commission + } shall review the budget, make
any changes therein that are proper and consistent with law, and
pass final approval thereon.
(2) The cost of protection of rangeland under ORS 477.317 and
477.320 shall be in accordance with the budget approved under
subsection (1) of this section. The cost shall be collected
pursuant to the cooperative agreement or contract entered into
between the { - forester - } { + Director of the Oregon
Department of Natural Resources + } and the owners of the
rangeland under ORS 477.320. All moneys received by the
{ - board - } { + commission + } pursuant to this subsection
shall be { - paid into the State Treasury and credited to the
State Forestry Department Account and shall be used exclusively
for the purposes of - } { + deposited in the Oregon Natural
Resources Fund. Moneys deposited in the fund under this
subsection are continuously appropriated to the Oregon Department
of Natural Resources for the purpose of administering + } ORS
477.315 to 477.325.
SECTION 1877. ORS 477.355 is amended to read:
477.355. (1) The { - State Forester - } { + Director of the
Oregon Department of Natural Resources + } shall appoint one or
more district fire wardens for each forest protection district.
(2) The { - State Forester - } { + director + } shall
appoint such additional fire wardens as are needed to enforce
this chapter.
SECTION 1878. ORS 477.360 is amended to read:
477.360. The district fire warden, under the direction of the
{ - State Forester - } { + Director of the Oregon Department
of Natural Resources + }, has charge of the fire prevention and
suppression system in the forest protection district of the
warden and such other duties as are required by law and the rules
of the { - State Board of Forestry - } { + Oregon Natural
Resources Commission + }. Any other wardens serving in the
district are subject to the direction of the district fire
warden.
SECTION 1879. ORS 477.365 is amended to read:
477.365. (1) Under instructions from the { - forester - }
{ + Director of the Oregon Department of Natural Resources + }
as to their exercise of state authority, all wardens shall:
(a) Take proper steps for the prevention and extinguishment of
fires within the localities in which they exercise their
functions.
(b) Control the use of fire for clearing land during fire
season, as provided by ORS 477.505 to 477.520.
(c) Make such reports of their work and conditions within their
localities as may be requested by the { - forester - }
{ + director + }.
(d) Have the power of peace officers to make arrests or issue
citations pursuant to ORS 477.985 for violation of this chapter
or rules or orders adopted pursuant thereto.
(e) Enter upon the lands of any owner only in the discharge of
their fire prevention and suppression duties, provided that in so
entering they exercise due care to avoid doing damage.
(f) Investigate the causes of fires and may secure a fire
origin area, at any time, for the purpose of preserving evidence
and conducting an investigation pertinent to this chapter and
control, restrict or prohibit access by any unauthorized person
so long as is reasonably necessary in the judgment of the warden.
(g) Make a written determination, on a form prescribed by the
{ - State Forester - } { + director + }, of the personnel and
equipment reasonably available to an owner or operator who is
required to make every reasonable effort pursuant to ORS 477.120
(5) and revise such determination as frequently as is necessary
in the judgment of the warden.
(h) Make a written determination, on a form prescribed by the
{ - State Forester - } { + director + }, of the use of any
power-driven machinery in any operation pursuant to ORS 477.670
and revise such determination as frequently as is necessary in
the judgment of the warden.
(2) The { - forester - } { + director + }, or any warden
coming under the jurisdiction of the { - forester - }
{ + director + }, may administer oaths in investigations of
violations of this chapter and the preparation of reports
thereon.
SECTION 1880. ORS 477.406 is amended to read:
477.406. (1) The { - forester - } { + Director of the
Oregon Department of Natural Resources + } and a forest
protective association may enter into a contract or agreement
with each other or, jointly or separately, with a federal or
state agency, political subdivision, corporation, responsible
organization or responsible landowner or group of landowners for
the prevention and suppression of fire on forestland or on land
other than forestland, or both, to prevent and suppress fire.
(2) Contracts and agreements under subsection (1) of this
section, and all renewals and revisions thereof, must be
negotiated in accordance with procedures specified by rules of
the
{ - State Board of Forestry - } { + Oregon Natural Resources
Commission + }.
(3) The { - forester - } { + director + } and a forest
protective association may enter into a contract or agreement for
the accomplishment of forestry related activities.
(4) Contracts and agreements between the { - forester - }
{ + director + } and a forest protective association under
subsections (1) and (2) of this section may include { - the
purchase from the forester of - } { + contracts for the sale
of + } supplies and equipment needed to provide and support fire
protection services.
SECTION 1881. ORS 477.412 is amended to read:
477.412. { - All money received by the forester pursuant to a
contract or agreement described in ORS 477.406 shall be paid into
the State Treasury, credited to the State Forestry Department
Account and used pursuant to law for the purposes of the contract
or agreement. - } { + All moneys received by the Director of
the Oregon Department of Natural Resources pursuant to a contract
or agreement described in ORS 477.406 shall be deposited in the
Oregon Natural Resources Fund. Money deposited in the fund under
this section are continuously appropriated to the Oregon
Department of Natural Resources for purposes related to the
administration of ORS 477.406. + }
SECTION 1882. ORS 477.440 is amended to read:
477.440. (1) The { - State Board of Forestry - } { + Oregon
Natural Resources Commission + } shall appoint an Emergency Fire
Cost Committee consisting of four members, who shall be forest
landowners or representatives of forest landowners whose
forestland is being assessed for forest fire protection within a
forest protection district. At least one member shall be selected
from each forest region of the state. Members shall serve at the
pleasure of the { - board - } { + commission + }.
(2) Members of the Emergency Fire Cost Committee shall be
appointed by the { - board - } { + commission + } for
four-year terms.
{ - Appointments under this subsection shall be made by the
board within 60 days after July 21, 1987. - } If there is a
vacancy for any cause, the { - board - } { + commission + }
shall make an appointment to become immediately effective for the
unexpired term.
SECTION 1883. ORS 477.455 is amended to read:
477.455. (1) Regular meetings of the { + Emergency Fire
Cost + } Committee shall be held quarterly { - prior to the day
set for meetings of the State Board of Forestry, as otherwise
provided by law - } . Special meetings of the committee may be
called by its chairperson or by three members. The act or
decision of any three members shall be deemed the act or decision
of the committee.
(2) A staff member of the { - State Forestry Department - }
{ + Oregon Department of Natural Resources + } shall be
designated by the { - State Forester - } { + Director of the
Oregon Department of Natural Resources + } to serve as
administrator for the committee.
SECTION 1884. ORS 477.505 is amended to read:
477.505. (1) When conditions of fire hazard exist in a forest
protection district or any part thereof, the { - State
Forester - } { + Director of the Oregon Department of Natural
Resources + } may designate for that district or any part thereof
the date of the beginning of a fire season for that year. The
fire season shall continue for that district or part thereof
until ended by order of the { - State Forester - }
{ + director + } when conditions of fire hazard no longer exist
in that district or part thereof.
(2) The { - State Forester - } { + director + } may, during
the same year and for the same district under circumstances
similar to those described in subsection (1) of this section,
designate one or more subsequent fire seasons.
SECTION 1885. ORS 477.510 is amended to read:
477.510. It is unlawful, during a fire season { + and when + }
inside or within one-eighth of one mile of a forest protection
district, to:
(1) Smoke while working in or traveling through any operation
area.
(2) Use fuse and caps for blasting unless { - approval is
granted by the forester - } { + the Director of the Oregon
Department of Natural Resources approves the use + }.
SECTION 1886. ORS 477.515 is amended to read:
477.515. (1) It is unlawful to set or cause to be set an open
fire inside or within one-eighth of one mile of a forest
protection district, either on one's own land or on the land of
another, without first securing a written permit for burning from
the { - forester - } { + Director of the Oregon Department of
Natural Resources + } and complying with the conditions of the
permit. In granting permits for burning:
(a) The { - forester - } { + director + } may waive the
requirement that permits be secured prior to burning, except
during a fire season or when required under rules adopted
pursuant to subsection (4) of this section.
(b) The { - forester - } { + director + } shall prescribe
conditions necessary to be observed in setting a fire and
preventing it from spreading out of control.
(c) The { - forester - } { + director + } may prescribe
conditions necessary to be observed in maintaining air quality.
(2) Any permit obtained through willful misrepresentation is
void.
(3) To avoid confusion or duplication of administration and to
promote government efficiency, the { - forester - }
{ + director + } may enter into a cooperative agreement with a
county, a city or a rural fire protection district that:
(a) Allows the { - forester - } { + director + } to
administer the requirements of this section, in conjunction with
the enforcement authority of ORS 477.980 to 477.993, on lands not
otherwise subject to the requirements of this chapter; or
(b) Allows the cooperating agency to administer the burning
permit requirements of ORS chapter 476 or 478, as appropriate,
including applicable enforcement authority, on lands otherwise
subject to the requirements of this chapter.
(4) All burning allowed under this section shall comply with
applicable rules that may be adopted by the { - State Board of
Forestry and the Department of Environmental Quality - }
{ + Oregon Natural Resources Commission or the Department of
Environmental Quality + }.
(5) The provisions of this section do not apply to campfires.
SECTION 1887. ORS 477.520 is amended to read:
477.520. The { - forester - } { + Director of the Oregon
Department of Natural Resources + } may refuse, suspend or revoke
a permit authorized by or issued under ORS 477.515 (1), when
necessary in the judgment of the { - forester - }
{ + director + } to prevent danger to life, health, forest
resources or property. The { - forester - } { + director + }
may also refuse, suspend or revoke a permit authorized by or
issued under ORS 477.515 (1) { - , when necessary in the
judgment of the forester, and after consultation with the
Environmental Quality Commission - } to prevent air pollution,
as defined in ORS 468A.005.
SECTION 1888. ORS 477.535 is amended to read:
477.535. (1) If the { - forester - } { + Director of the
Oregon Department of Natural Resources + } determines that any
forestland inside or within one-eighth of one mile of a forest
protection district is particularly exposed to fire danger, by
proclamation the { - forester - } { + director + } may
designate such forestland as an extra fire hazard and may
restrict the use of such forestland.
(2) The proclamation shall designate the area to which and the
period during which the restrictions apply, and require that the
area be subject to use only upon the condition that entrants
comply with all the restrictions for the area.
(3) The proclamation shall designate the type of closure as:
(a) Regulated closure;
(b) Permit closure; or
(c) Absolute closure.
(4) For the purpose of consistency and coordination between all
affected agencies in the administration of forestland
restrictions, a plan shall be developed by the { - forester - }
{ + director + }, in cooperation with federal, state and local
governmental agencies, landowners and organizations affected by
the restrictions. The primary objective of the plan is uniformity
of regulations regardless of land ownership. The plan must
recognize variation in fire danger and must specify levels of
closure by unique but easily recognizable geographic boundaries.
SECTION 1889. ORS 477.540 is amended to read:
477.540. (1) The { - forester - } { + Director of the
Oregon Department of Natural Resources + } shall cause a notice
of the closure proclaimed under ORS 477.535 to be posted in
conspicuous locations that are in or near the designated areas.
The { - forester - } { + director + } shall cause a notice of
each proclamation to be published in at least one newspaper
published in each forest protection district containing the
designated areas. Each published notice shall describe the area,
type, restrictions and effective date of closure, and the manner
in which permits may be secured if the area is subject to a
permit closure.
(2) The proclamation shall remain in force until the time
designated therein expires or until the { - forester - }
{ + director + } finds that the restricted use is no longer
requisite and by order suspends or terminates it. A reinstatement
of a closure after a suspension does not require the notices
described in subsection (1) of this section.
SECTION 1890. ORS 477.545 is amended to read:
477.545. (1) Regulated closures require entrants into
designated areas to comply with the requirements set forth in the
proclamation under ORS 477.535, which requirements in the
judgment of the { - forester - } { + Director of the Oregon
Department of Natural Resources + } are necessary to prevent
danger to life, forest resources or property.
(2) Permit closures make the area subject to entry only through
permit issued by the { - forester - } { + director + }. The
permit shall contain requirements which in the judgment of the
{ - forester - } { + director + } are necessary to prevent
danger to life, forest resources or property. The
{ - forester - } { + director + } may, during periods of fire
hazard conditions, refuse, suspend, revoke or restrict such
permits.
(3) Absolute closures restrict the areas to all forms of use
and shall be designated only during periods of extreme fire
hazard conditions endangering life, forest resources or property.
SECTION 1891. ORS 477.554 is amended to read:
477.554. (1) With the advice and assistance of the advisory
committee established under ORS 477.556, and subject to the
review of the { - State Board of Forestry, the State
Forester - } { + Oregon Natural Resources Commission, the
Director of the Oregon Department of Natural Resources + } shall
adopt and implement programs for meeting the objectives set forth
in ORS 477.013 and 477.552 to 477.562. The programs shall
include:
(a) Collection, analysis and distribution of information
regarding prescribed burning and other alternative fuel
management techniques;
(b) Assistance to landowners wanting to evaluate alternative
burning and nonburning fuel management strategies and the
collection of data regarding fuel conditions existing before and
after treatment;
(c) Aerial monitoring of prescribed burning activity;
(d) { + Collection, analysis and + } distribution of
information to the Department of Environmental Quality on
progress toward meeting federal and state air quality standards;
(e) Establishment of a system to track forest burning on a
geographically specific basis; and
(f) Collection, analysis and distribution of information
regarding emissions from wildfires for comparison with prescribed
burning.
(2) The programs shall be administered by the { - State
Forestry Department - } { + Oregon Department of Natural
Resources + }.
SECTION 1892. ORS 477.556 is amended to read:
477.556. (1) An advisory committee shall be created by the
{ - State Forester - } { + Director of the Oregon Department
of Natural Resources + } to advise and assist the { - State
Forester - } { + director + } in carrying out the programs
required by ORS 477.013, 477.515 and 477.552 to 477.562. The
advisory committee shall consist of five members as set forth in
subsections (2) and (3) of this section.
(2) The following three members shall be appointed by the
{ - State Forester - } { + director + }:
(a) One member representing a nonindustrial forest landowner;
(b) One member representing an industrial forest landowner; and
(c) One member representing the public.
(3) In addition to the members designated in subsection (2) of
this section, representatives of the following federal agencies
shall be invited to serve as members of the advisory committee:
(a) A representative of the United States Forest Service.
(b) A representative of the United States Bureau of Land
Management.
(4) Each member of the advisory committee shall serve for a
term of two years.
(5) Members of the advisory committee are entitled to
compensation as provided in ORS 292.495.
(6) A vacancy for any cause occurring before the expiration of
a term shall be filled for the unexpired term by a person
appointed by the { - State Forester - } { + director + }.
(7) A staff member of the { - State Forestry Department shall
be designated by the State Forester - } { + Oregon Department
of Natural Resources shall be designated by the director + } to
serve as secretary for the committee.
SECTION 1893. ORS 477.558 is amended to read:
477.558. The advisory committee created under ORS 477.556
shall:
(1) Advise the { - State Forestry Department - } { + Oregon
Department of Natural Resources + } in collecting information
about prescribed burning operations; and
(2) Advise the { - State Forestry - } department on the
collection, analysis and distribution of information required
under ORS 477.554.
SECTION 1894. ORS 477.560 is amended to read:
477.560. (1) The Oregon Forest Smoke Management Account is
established separate and distinct from the General Fund in the
State Treasury.
(2) The following moneys shall be credited to the Oregon Forest
Smoke Management Account:
(a) Nonrefundable registration fees received by the { - State
Forestry Department - } { + Oregon Department of Natural
Resources + } for Class 1 forestland under ORS 526.324 to be
burned west of the summit of the Cascade Mountains, not including
Hood River County.
(b) Fees received by the { - State Forester - }
{ + Director of the Oregon Department of Natural Resources + }
for Class 1 forestland under ORS 526.324 treated by a
prescription burn method under ORS 477.515 (1) west of the summit
of the Cascade Mountains, not including Hood River County.
(c) Fees for federal forestland included within the regulated
area under ORS 477.013 to be treated by any prescription burn
method subject to the provisions of the State of Oregon Clean Air
Act Implementation Plan and the federal Clean Air Act received by
the { - State Forester - } { + director + }.
(3) The moneys in the Oregon Forest Smoke Management Account
are { + continuously + } appropriated { - continuously - }
for and shall be used by the { - State Forester - }
{ + director + } exclusively for the administration of the smoke
management program approved under ORS 477.013 and 477.554.
SECTION 1895. ORS 477.562 is amended to read:
477.562. (1) The { - State Forestry Department - }
{ + Oregon Department of Natural Resources + } shall collect a
nonrefundable registration fee for Class 1 forestland under ORS
526.324 to be burned west of the summit of the Cascade Mountains,
not including Hood River County.
(2) Any owner of Class 1 forestland under ORS 526.324 and any
agency managing Class 1 forestland under ORS 526.324 lying within
the regulated area as described in the plan required under ORS
477.013 shall register with the { - State Forester - }
{ + Director of the Oregon Department of Natural Resources + },
in accordance with rules adopted by the { - State Forester - }
{ + director + }, the number of acres to be burned prior to
December 31 of the same year.
(3) The { - State Forester - } { + director + } shall
establish by rule the amount of fees to be collected under this
section. The fees may not exceed:
(a) Fifty cents per acre for registration.
(b) $5 per acre for forestland classified as Class 1 under ORS
526.324 that has been treated by any prescription burn method
authorized by the issuance of a permit under ORS 477.515 (1).
(4) Federal lands included within the regulated area under the
provision of the smoke management plan approved under ORS 477.013
shall also be subject to the fees authorized under subsection (3)
of this section for forestland to be treated by any prescription
burn method subject to the provisions of the State of Oregon
Clean Air Act Implementation Plan and the federal Clean Air Act.
(5) The { - State Forester - } { + director + } may
establish a minimum fee per billing, combining the fees in
subsections (1) and (3) of this section. The combined minimum fee
may not exceed $30.
(6) In order to efficiently collect fees established by this
section, the { - State Forester - } { + director + } is
authorized to enter into contracts or agreements with a federal
land management agency, a person or a public body as defined in
ORS 174.109. Such a contract or agreement may provide for payment
methods such as estimated annual payments with periodic
adjustment to ensure the recovery of actual fees due, or
semiannual or quarterly consolidated billings.
(7) Notwithstanding ORS 291.238, moneys collected under this
section shall be deposited in the Oregon Forest Smoke Management
Account established under ORS 477.560.
SECTION 1896. ORS 477.565 is amended to read:
477.565. (1) In an operation area on forestland inside or
within one-eighth of one mile of a forest protection district:
(a) If power-driven machinery is used at any location to load
and assemble forest products, the operator shall fell all dead
trees and snags of such size and within such distance of the
equipment as may be required by rules promulgated by the
{ - State Forester - } { + Director of the Oregon Department
of Natural Resources + }.
(b) On forestland west of the summit of the Cascade Mountains,
the operator shall fell all dead trees and snags within the
operation area of such size, at such times and in such manner as
may be required by rules promulgated by the { - State
Forester - } { + director + }.
(2) Rules promulgated under this section shall prescribe such
felling as reasonably is necessary to prevent the spread of fire.
SECTION 1897. ORS 477.580 is amended to read:
477.580. (1) Following the issuance of a permit pursuant to ORS
477.625, and after slashing has been created in an operation area
inside or within one-eighth of one mile of a forest protection
district, the { - forester - } { + Director of the Oregon
Department of Natural Resources + } may make a determination if
such slashing and debris exists on the operation area in
sufficient quantity and arrangement as to constitute an
additional fire hazard that endangers life, forest resources or
property, and if such area is in need of additional work or
protection to reduce, abate or offset the additional fire hazard.
Whenever practical, the { - forester - } { + director + }
shall make the determination referred to in this subsection
during the administration and enforcement of the Oregon Forest
Practices Act.
(2) If the { - forester - } { + director + } determines
that an additional fire hazard exists on the operation area
sufficient to endanger life, forest resources or property, and
that such area is in need of additional work or protection to
reduce, abate or offset the additional fire hazard, the
{ - forester - } { + director + } shall so notify the
landowner and operator or their representatives in writing of
such determination. Pursuant to rules promulgated by the
{ - State Forester - } { + director + }, the notice to the
landowner or operator shall contain provisions for offsetting the
additional fire hazard by burning, improvements, extra protection
or other means. The notice shall also specify a reasonable time
for completion of the provisions contained therein.
(3) When the { - forester - } { + director + } finds that
the provisions set forth in subsection (2) of this section have
been complied with or that the additional hazard has been { - ,
in the opinion of the forester, - } sufficiently reduced by
other means to offset the hazard, the { - forester - }
{ + director + } shall immediately issue to the operator or
landowner a release from all obligations imposed by ORS 477.120
(2)(c).
(4) If the { - forester - } { + director + } determines
that an additional fire hazard exists, the { - forester - }
{ + director + } shall, at the request of the owner or operator,
with the approval of the owner, grant a release upon payment by
the owner or operator of such sum of money as the
{ - forester - } { + director + } finds necessary to provide
additional protection or means necessary to reduce or offset the
additional hazard created by such slashing and other debris. In
no event may this sum exceed the lesser of:
(a) $6 for each 1,000 board feet of timber harvested in an
operation;
(b) The { - forester's - } { + director's + } estimated
cost of reducing or providing other means to offset the
additional hazard; or
(c) $10 for each acre in a stand improvement operation where no
timber is harvested.
(5) Moneys received under subsection (4) of this section shall
be { - placed in the State Treasury, credited to the State
Forestry Department Account and used exclusively for the purposes
of - } { + deposited in the Oregon Natural Resources Fund.
Moneys deposited in the fund under this subsection are
continuously appropriated to the Oregon Department of Natural
Resources for purposes related to + } forest protection within
the district.
(6) Any owner of forestland may make written request to the
{ - forester - } { + director + } to assume all obligations
for the disposal or reduction of any additional fire hazard
determined to exist thereon. If the { - forester - }
{ + director + } then determines that the owner can comply with
such obligation, the { - forester - } { + director + } shall
immediately issue to all other persons involved a written release
of such obligations.
(7) Any order or determination made by the { - forester - }
{ + director + } pursuant to this section is final unless
modified or vacated in an appeal to the { - State Board of
Forestry - } { + Oregon Natural Resources Commission + } taken
within 30 days after issuance of the order.
SECTION 1898. ORS 477.610 is amended to read:
477.610. (1) Notwithstanding any other law, the { - State
Forester - } { + Director of the Oregon Department of Natural
Resources + }, in cooperation with other forest protection
associations and agencies, shall carry on a continuous program
for the standardization of equipment used for the protection of
forestland from fire, and may issue rules, with the approval of
the { - State Board of Forestry - } { + Oregon Natural
Resources Commission + }, for such standardization where it is
the finding of the { - forester and board - } { + director
and commission + } that such standardization is economically
feasible.
(2) The provisions of ORS 476.410 to 476.440 shall not apply to
equipment used for the protection of forestland from fire.
SECTION 1899. ORS 477.615 is amended to read:
477.615. (1) During a fire season inside or within one-eighth
of one mile of a forest protection district, when, in the
judgment of the { - forester - } { + Director of the Oregon
Department of Natural Resources + }, an operation is of
sufficient size or so planned and operated as to justify
additional protection from fire, the owner or operator, when so
directed by the { - forester - } { + director + } in writing,
shall provide, within such time as is specified in the writing,
additional water supply and equipment for use in fire suppression
that is in conformity with rules promulgated by the
{ - State Forester - } { + director + }.
(2) All such equipment shall be kept in constant readiness for
instant use in fighting forest fires. However, nothing in this
section prohibits the use of the equipment by the operator for
sprinkling roads or other uses within the operation area.
(3) Rules promulgated under this section shall prescribe such
water supply and equipment as reasonably are necessary to provide
immediate and effective suppression of fires on forestland and
may provide for the use of alternate methods and equipment.
SECTION 1900. ORS 477.625 is amended to read:
477.625. (1) Every person conducting an operation inside or
within one-eighth of one mile of a forest protection district
that uses fire in any form or power-driven machinery shall first
obtain from the { - forester - } { + Director of the Oregon
Department of Natural Resources + } a written permit, which shall
require that the holder of the permit:
(a) Take reasonable precautions that in the judgment of the
{ - forester - } { + director + } are necessary in the use of
fire and power-driven machinery to prevent the spread of fire on
or from an operation area.
(b) Designate a representative authorized to act on all matters
having to do with fire control, which representatives shall be
available at all times by direct means of communication with the
{ - forester - } { + director + }.
(c) If operating west of the summit of the Cascade Mountains,
close down any part or all of the operation during any period of
time when notified that, in the judgment of the
{ - forester - } { + director + }, conditions exist as
described in ORS 477.670.
(2) Routine road maintenance is excepted from the requirement
to obtain a permit to operate power-driven machinery under this
section. As used in this subsection 'routine road maintenance '
means grading, cleaning ditches, culvert cleaning, spot rocking
or mechanical brushing along the roadside to maintain visibility.
(3)(a) The { - forester - } { + director + } may waive the
requirement to obtain a written permit under this section when in
the judgment of the { - forester - } { + director + } the
operation will not constitute a fire hazard sufficient to justify
the requirement.
(b) Waiver of the requirement to obtain a written permit under
this section does not relieve the owner and operator of the
responsibility for complying with other applicable duties,
requirements or penalties of this chapter.
SECTION 1901. ORS 477.630 is amended to read:
477.630. (1) Each permit issued under ORS 477.625 shall
include:
(a) The legal description of the area upon which any operation
is to be conducted, or an alternate description of the area
permitted by the { - forester - } { + Director of the Oregon
Department of Natural Resources + };
(b) The name and address of the operator and owner; and
(c) Any other information considered by the { - forester - }
{ + director + } to be necessary for the administration of the
rules promulgated under this chapter.
(2) The information required in subsection (1) of this section
shall be provided by the operator or owner, prior to issuance of
the permit by the { - forester - } { + director + }.
SECTION 1902. ORS 477.635 is amended to read:
477.635. The { - forester - } { + Director of the Oregon
Department of Natural Resources + } may issue the permits
required in ORS 477.625 and suspend or revoke such permits
because of violation of the terms thereof or noncompliance with
this chapter. The { - forester - } { + director + } shall
refuse to issue a permit to any person for the conduct of an
operation when, in the judgment of the { - forester - }
{ + director + }, an excessive amount of forest debris in and
around the operation area results in an extreme fire hazard that
endangers life, forest resources or property.
SECTION 1903. ORS 477.640 is amended to read:
477.640. During a fire season, every person using, operating or
fueling a saw powered by an internal combustion engine inside or
within one-eighth of one mile of a forest protection district
shall comply with the rules of the { - State Forester - }
{ + Director of the Oregon Department of Natural Resources + }
relating thereto, promulgated for the prevention and suppression
of fire.
SECTION 1904. ORS 477.645 is amended to read:
477.645. (1) During a fire season every person operating an
internal combustion engine inside or within one-eighth of one
mile of a forest protection district shall equip and maintain the
engine in conformity with rules promulgated by the { - State
Forester - } { + Director of the Oregon Department of Natural
Resources + }. These rules shall prescribe such equipment as
reasonably is necessary to prevent the escape of fire from such
an engine.
(2) Escape of fire from any engine described in this section is
prima facie evidence that it has not been equipped and maintained
adequately in compliance with rules promulgated under this
section.
SECTION 1905. ORS 477.650 is amended to read:
477.650. (1) During a fire season every person operating a
stationary internal combustion engine inside or within one-eighth
of one mile of a forest protection district shall provide at each
engine on an operation area a water supply, and equipment for its
use in fire suppression, in conformity with rules promulgated by
the { - State Forester - } { + Director of the Oregon
Department of Natural Resources + }. These rules shall prescribe
such water supply and equipment as reasonably are necessary to
prevent the spread of fire and may provide for the use of
alternate methods and equipment.
(2) When a person has equipped one engine as required by
subsection (1) of this section, any additional engines operated
by the person within 150 feet of the equipped engine shall be
exempt from the requirements of subsection (1) of this section.
(3) For the purposes of this section, an internal combustion
engine shall be considered stationary if it is operated for a
period of more than two days exclusively at one location in an
operation area.
(4) The { - forester - } { + director + } in writing may
waive any requirement of this section when an operation will not
constitute a fire hazard sufficient to justify the requirement.
SECTION 1906. ORS 477.655 is amended to read:
477.655. During a fire season inside or within one-eighth of
one mile of a forest protection district:
(1) Every person conducting an operation shall provide and
maintain, at the operation area or at a location designated by
the
{ - forester, fire-fighting tools that are in conformity with
rules promulgated by the State Forester - } { + Director of the
Oregon Department of Natural Resources, fire-fighting tools that
are in conformity with rules promulgated by the director + }. The
tools shall be used only for fighting fire and for no other
purpose.
(2) Each internal combustion engine used in an operation area
shall be equipped with fire-fighting tools and equipment that are
in conformity with rules promulgated by the { - State
Forester - } { + director + }.
(3) All trucks driven over roads through forestland, excepting
county roads and state highways, shall be equipped with
fire-fighting tools and equipment that are in conformity with
rules promulgated by the { - State Forester - }
{ + director + }.
(4) For purposes of this section, the rules promulgated by the
{ - State Forester - } { + director + }:
(a) Shall prescribe such type and number of tools and equipment
for extinguishing fires as reasonably are necessary to suppress
fires, and the manner of storing such tools when not in use.
(b) May provide for the use of alternate methods, tools and
equipment.
(5) The tools and equipment prescribed by these rules shall be
kept in constant repair and readiness for instant use.
SECTION 1907. ORS 477.660 is amended to read:
477.660. During a fire season when in the judgment of the
{ - forester - } { + Director of the Oregon Department of
Natural Resources + } any operation inside or within one-eighth
of one mile of a forest protection district has a fire hazard
requiring additional protection, the operator shall provide such
other facilities or services as the { - forester - }
{ + director + } by written notice may direct.
SECTION 1908. ORS 477.665 is amended to read:
477.665. (1) During a fire season inside or within one-eighth
of one mile of a forest protection district, every operator using
power-driven machinery in an operation area shall provide fire
watch service on the operation area. The fire watch service shall
consist of not less than one competent person, who shall be
constantly on duty at times prescribed by rules promulgated by
the
{ - State Forester - } { + Director of the Oregon Department
of Natural Resources + }. These rules shall require fire watch
service at such times and at such places as the spread of fire on
or from the operation area to forestland reasonably may be
expected.
(2) The { - forester - } { + director + } may modify or
waive, in writing, any requirement of this section as to any
operation whenever the fire hazard is not sufficient to justify
the requirement.
SECTION 1909. ORS 477.670 is amended to read:
477.670. During a fire season inside or within one-eighth of
one mile of a forest protection district situated west of the
summit of the Cascade Mountains, if the forestland in such
district, or any part thereof, is susceptible in the judgment of
the { - forester - } { + Director of the Oregon Department of
Natural Resources + } to damage by fire, the { - forester - }
{ + director + } shall issue notice to that effect. Thereafter
the use of fire in any form by any person in any operation area
or the use of power-driven machinery for any operation, is
unlawful unless approved by the
{ - forester - } { + director + }. Approval shall be granted
only when in the judgment of the { - forester - }
{ + director + } the activity will not constitute a fire hazard
sufficient to justify the requirement.
SECTION 1910. ORS 477.695 is amended to read:
477.695. (1) Every person operating a railroad of any kind in
this state inside or within one-eighth of one mile of a forest
protection district shall annually or more often, if so ordered
in writing by the { - forester, in a manner and to an extent
ordered by the forester, - } { + Director of the Oregon
Department of Natural Resources, + } destroy or remove all
flammable growth and flammable material from the right of way of
the railroad. All burning done to comply with this section must
be in accordance with ORS 477.505 to 477.520 and 477.625.
(2) The { - forester - } { + director + } shall allow a
reasonable period of time for compliance with this order.
SECTION 1911. ORS 477.745 is amended to read:
477.745. (1) In addition to any other remedy provided by law,
the parent or parents of an unemancipated minor child shall be
liable for costs incurred by the { - forester - }
{ + Director of the Oregon Department of Natural Resources + }
in suppressing fires on forestland caused by such minor child.
However, a parent who is not entitled to legal custody of the
minor child at the time of the fire shall not be liable for such
damages.
(2) The legal obligation of the parent or parents of an
unemancipated minor child to pay damages under this section shall
be limited to not more than $5,000 payable to the
{ - forester - } { + director + } for one or more acts.
(3) When an action is brought under this section on parental
responsibility for acts of their children, the parents shall be
named as defendants therein and, in addition, the minor child
shall be named as a defendant. The filing of an answer by the
parents shall remove any requirement that a guardian ad litem be
required.
(4) Nothing in subsections (1) to (3) of this section applies
to:
(a) Foster parents.
(b) Parents who have filed a petition for the unemancipated
minor child under ORS 419B.809.
SECTION 1912. ORS 477.747 is amended to read:
477.747. The { - State Forestry Department, the State Parks
and Recreation Department, the State Department of Fish and
Wildlife, the Department of State Lands and any other state
agency with oversight responsibilities for state forestlands - }
{ + Oregon Department of Natural Resources + } shall promote the
effective use of state resources by adopting and implementing
policies and management plans to begin efforts to restore and
recover forestlands burned by fire so that social, economic and
environmental values are not lost due to delay. These agencies
shall coordinate, to the extent needed, to promote the efficient
use of state resources in developing their fire restoration and
recovery policies and plans. The Oregon Department of
Administrative Services may assist state agencies under this
section in developing contract and other procedures to expedite
restoration and recovery efforts. The Oregon Department of
Administrative Services shall provide appropriate contracting
assistance and exceptions as may be necessary to expedite
restoration and recovery efforts.
SECTION 1913. ORS 477.760 is amended to read:
477.760. (1) The reserve base of the Oregon Forest Land
Protection Fund is $22.5 million. On or about the last day of
February of each year the Emergency Fire Cost Committee shall
meet and determine the unencumbered balance of the fund as of the
preceding February 16.
(2) In order to maintain the reserve base of the fund at $22.5
million, the Emergency Fire Cost Committee may request and the
State Treasurer may approve transfers to the fund in accordance
with ORS 293.205 to 293.225, if the moneys in this fund fall
below the reserve base, whether or not there are sufficient
moneys in the fund to pay the obligations of the fund. Repayment
of any such transfers shall be made from moneys paid into the
fund pursuant to ORS 321.015 (2), 477.277 and 477.880 and from
such other moneys as may be credited to the fund therefor.
(3) If the committee determines that the moneys in the fund
exceed:
(a) The reserve base, and that no repayment obligations are
outstanding from transfers made pursuant to subsection (2) of
this section, then the Department of Revenue shall reduce the
taxes described in ORS 321.015 (2) by 50 percent for the
following calendar year and the surcharge for each improved lot
or parcel described in ORS 477.277 and the assessments described
in ORS 477.880 shall be reduced by 50 percent for the following
fiscal year.
(b) $30 million, and that no repayment obligations are
outstanding from transfers made pursuant to subsection (2) of
this section, then the Department of Revenue may not collect the
taxes described in ORS 321.015 (2) for the following calendar
year and the surcharge for each improved lot or parcel described
in ORS 477.277 and the assessments described in ORS 477.880 may
not be collected until the calendar year or fiscal year following
the determination of the committee that the unencumbered balance
in the fund is less than or equal to $22.5 million.
(4)(a) Notwithstanding any other provision of law, if the funds
referred to in subsection (2) of this section are inadequate to
cover repayment of transfers from the State Treasurer or from
other sources, the { - State Forester - } { + Director of the
Oregon Department of Natural Resources + } shall increase the
following taxes, assessments and charges in an amount adequate to
ensure repayment of the transfers, and any interest accrued
thereon, allowing for contingencies in valuation, assessment and
collection:
(A) The harvest tax referred to in ORS 321.015 (2).
(B) The surcharge on developed lots referred to in ORS 477.277.
(C) The minimum assessment referred to in ORS 477.295.
(D) The acreage assessments referred to in ORS 477.880 (2).
(b) The increases to taxes, assessments and charges shall be
apportioned based upon the proportionate levels of revenues
received from each source by the Oregon Forest Land Protection
Fund. Any such increases shall be computed on or before January 1
of each year, and shall be based upon revenues received during
the previous four quarters. Any such increases shall be made in
the appropriate calendar or fiscal year following that in which
the requested transfers from the State Treasurer or from other
sources are made.
SECTION 1914. ORS 477.775 is amended to read:
477.775. (1) Prior to February 1 of each year, the Emergency
Fire Cost Committee and the { - forester - } { + Director of
the Oregon Department of Natural Resources + } shall consult
regarding the purchase of emergency fire suppression costs
insurance and the level of coverage to purchase for the fire
season of that year.
(2) In determining whether the purchase of insurance is
advisable, the { - forester - } { + director + } and the
committee shall consider:
(a) The cost, coverage and deductible of insurance available
from private insurance carriers;
(b) The funding available for fire suppression from the Oregon
Forest Land Protection Fund and other sources;
(c) The current condition of forests;
(d) Long-term weather predictions;
(e) Available fire fighting resources; and
(f) Available funds for the purchase of insurance.
(3) If the committee and the { - forester - }
{ + director + } agree to purchase insurance, the
{ - forester - } { + director + } shall purchase insurance
through the Oregon Department of Administrative Services to cover
any lawful expense incurred by the { - State Forestry
Department - } { + Oregon Department of Natural Resources + },
or contractors or cooperators, that is payable by the Oregon
Forest Land Protection Fund. The insurance may be obtained
through negotiation or competitive bids, whichever is in the best
interest of the state, its contractors and cooperators.
(4) The Oregon Forest Land Protection Fund may not be charged
for payment of more than one-half of any premium for the
insurance.
SECTION 1915. ORS 477.777 is amended to read:
477.777. (1) As part of the preparation of the budget forms
submitted to the Oregon Department of Administrative Services
pursuant to ORS 291.208 for the { - State Forestry Department,
the State Forester - } { + Oregon Department of Natural
Resources, the Director of the Oregon Department of Natural
Resources + } shall prepare, in addition to any amounts budgeted
for forest protection districts pursuant to ORS 477.205 to
477.281, a budget request for a General Fund appropriation that
may be used for any or all of the following:
(a) Providing funds for the purchase of insurance under ORS
477.775.
(b) Placement of centrally managed fire suppression resources
for statewide use.
(c) Acquisition of fast-mobilizing, short-term contingency
resources to be used based on predictions of unusually severe
fire weather, widespread lightning events or serious resource
shortage due to a heavy fire season.
(d) Enhancement of forest protection district resources in
limited cases where land productivity or other economic factors
seriously limit the protection district's ability to provide
adequate funding to meet performance standards.
(2) The { - State Forester - } { + director + } shall
utilize critical discretion in the expenditure of the funds
provided to the { - State Forestry - } department pursuant to
the separate budget request required under subsection (1) of this
section.
(3) The { - State Forester - } { + director + } shall
report to the Emergency Board, each year, after the close of the
fire season, on:
(a) The nature and severity of the fire season;
(b) The moneys expended on fire suppression;
(c) The rationale for the expenditures; and
(d) The balance remaining from the biennial appropriation.
SECTION 1916. ORS 477.880 is amended to read:
477.880. (1) An assessment for the cost of fire protection and
suppression is levied upon the owners of all forestland that has
been classified under ORS 526.305 to 526.370 and that is
protected from the start or spread of fire thereon or therefrom
by:
(a) The { - forester - } { + Director of the Oregon
Department of Natural Resources + } under ORS 477.210 (4) { - ,
with the approval of the State Board of Forestry - } ;
(b) The United States of America through contract or agreement
with the { - forester or board - } { + director or the Oregon
Natural Resources Commission + };
(c) Any forest protective agency under contract or agreement
with the { - forester or board - } { + director or
commission + } pursuant to ORS 477.406; or
(d) Any forest protective agency, described in paragraph (c) of
this subsection, under a contract or agreement with the United
States of America wherein such agency agrees to protect specific
federal forestlands, and in return, the United States of America
agrees to protect specific lands of such agency.
(2) Except as otherwise provided in ORS 477.760, for each
fiscal year the assessment levied per acre of ownership of
forestland designated in subsection (1) of this section shall be:
(a) Seven and one-half cents for all forestlands east of the
summit of the Cascade Mountains and all forestlands which have
been classified Class 3, agricultural class, under ORS 526.305 to
526.370; or
(b) Five cents for all forestlands not described in paragraph
(a) of this subsection.
SECTION 1917. ORS 477.960 is amended to read:
477.960. (1) Insofar as applicable, the assessment levied under
ORS 477.880 shall be due and payable to the { - forester - }
{ + Director of the Oregon Department of Natural Resources + }
in like manner and procedure, including penalties and interest,
as set forth for the collection of the protection costs provided
in ORS 477.270. Wherever applicable, the assessment levied under
ORS 477.880 shall be combined with the budgeted cost certified to
the county under ORS 477.270 as one amount for each account
listed so that the officer in charge of the roll can extend the
amounts on the assessment roll in a separate column in a single
figure.
(2) The minimum assessment set forth in ORS 477.295 shall be
applied to the combined amount described in subsection (1) of
this section.
SECTION 1918. ORS 477.980 is amended to read:
477.980. The { - State Board of Forestry, by rule, - }
{ + Oregon Natural Resources Commission by rule + } shall
establish the enforcement policy for violations prescribed in ORS
477.993. In determining the enforcement policy, the
{ - board - } { + commission + } may consider the following
factors:
(1) Prior violation of the same or similar statutes, rules or
orders.
(2) The gravity and magnitude of the violation.
(3) Whether the violations were repeated or continuous.
(4) Whether the cause of the violation was an unavoidable
accident or a willful, malicious or negligent act.
(5) Whether the violation directly threatened human life or
caused property damage of $10,000 or more.
SECTION 1919. ORS 477.985 is amended to read:
477.985. (1) In addition to any other persons permitted to
enforce violations, the { - State Forestry Department and the
State Forester, or any employee specifically designated by the
department or by the State Forester, - } { + Director of the
Oregon Department of Natural Resources or an employee of the
Oregon Department of Natural Resources who been specifically
designated by the director + } may issue citations for violations
established under ORS 477.993 in the manner provided by ORS
chapter 153.
(2) All fines and court costs recovered from violations
established under ORS 477.993 shall be paid to the clerk of the
court involved. Such moneys shall be credited and distributed
under ORS 137.290 and 137.295 as monetary obligations payable to
the state.
SECTION 1920. ORS 478.150 is amended to read:
478.150. Prior to the formation of any rural fire protection
district or the annexation of any territory to an existing rural
fire protection district of any territory within the exterior
boundaries of a forest protection district established pursuant
to ORS chapter 477, the petitioners of the proposed district or
annexation shall confer with the { - State Forestry
Department - } { + Oregon Department of Natural Resources + }
in determining the boundaries and lands to be included within the
rural fire protection district.
SECTION 1921. ORS 478.665 is amended to read:
478.665. In addition to any other method of initiating
proceedings to withdraw territory from a district, the county
board may, after appropriate proceedings, order the withdrawal of
forestland from a district if:
(1) Written request for the withdrawal is submitted to the
county board by the district board;
(2) Inclusion of the withdrawn forestland within a forest
protection district under ORS 477.205 to 477.281 is agreed to by
the { - State Forester - } { + Director of the Oregon
Department of Natural Resources + };
(3) A public hearing for the landowners concerned is held
regarding the withdrawal by the county board; and
(4) Any lands so withdrawn and transferred to a forest
protection district for purposes of fire protection shall be
assessed for this purpose under ORS chapter 477 and, except as
provided by ORS 198.880, shall no longer be assessed for fire
protection by the rural fire protection district.
SECTION 1922. ORS 526.005 is amended to read:
526.005. As used in this chapter, unless the context otherwise
requires:
{ - (1) 'Board' means the State Board of Forestry. - }
{ - (2) - } { + (1) + } 'Certified Burn Manager' means an
individual, other than the { - forester - } { + Director of
the Oregon Department of Natural Resources + }, who is currently
certified under a program established pursuant to ORS 526.360
(3).
{ - (3) 'Department' means the State Forestry Department. - }
{ - (4) 'Forester' means the State Forester or the authorized
representative of the forester. - }
{ - (5) - } { + (2) + }(a) 'Forestland' means any woodland,
brushland, timberland, grazing land or clearing that, during any
time of the year, contains enough forest growth, slashing or
vegetation to constitute, in the judgment of the
{ - forester - } { + director + }, a fire hazard, regardless
of how the land is zoned or taxed.
(b) As used in this subsection, 'clearing' means any grassland,
improved area, lake, meadow, mechanically or manually cleared
area, road, rocky area, stream or other similar opening that is
surrounded by or contiguous to land described in paragraph (a) of
this subsection and that has been included in areas classified as
forestland under ORS 526.305 to 526.370.
{ - (6) - } { + (3) + } 'Forestry carbon offset' means a
transferable unit based on a measured amount of carbon storage
expressed as a carbon dioxide emission equivalent, or other
equivalent standard, and accruing on forestland as live or dead
matter in trees, shrubs, forest litter and soil.
{ - (7) - } { + (4) + } 'Nonindustrial private forest
landowner' means any forest landowner who does not own a forest
products manufacturing facility that employs more than six
people.
{ - (8) - } { + (5) + } 'Nonindustrial private forestland'
means any forestland owned by a nonindustrial private forest
landowner.
SECTION 1923. ORS 526.036 is amended to read:
526.036. (1) { - Before entering upon the duties of office,
the forester shall furnish - } { + For purposes related to the
administration of this chapter and ORS chapter 477, the Director
of the Oregon Department of Natural Resources shall secure,
before being appointed by the Governor under section 2 of this
2011 Act, + } a fidelity bond in favor of the State of Oregon in
the penal sum of $100,000 issued by one or more corporate
sureties authorized to do business in the State of Oregon { - ,
conditioned upon the faithful and honest handling and disposition
of the moneys in the State Forestry Department Account and any
other moneys in the hands of the forester - } . { + The director
may use moneys in the Oregon Natural Resources Fund to secure the
bond. + } The bond and sureties are subject to approval by the
Director of the Oregon Department of Administrative Services as
provided in ORS 291.011.
(2) The premium for the bond shall be { - paid from the
appropriation of the State Board of Forestry - } { + funded by
moneys appropriated to the Oregon Natural Resources
Commission + }.
(3) Except as provided in subsection (1) of this section, the
{ - board - } { + commission + } may require a fidelity bond,
with one or more corporate sureties authorized to do business in
this state, of any officer or employee of the { - State
Forestry Department. The board - } { + Oregon Department of
Natural Resources who is involved in the administration of this
chapter or ORS chapter 477. The commission + } shall fix the
amount of the bond, which otherwise is subject to subsections (1)
and (2) of this section.
SECTION 1924. ORS 526.041 is amended to read:
526.041. { - The forester, under the general supervision of
the State Board of Forestry, - } { + In administering programs
related to the protection of forests from fire and managing and
controlling the forestland of this state, the Director of the
Oregon Department of Natural Resources + } shall:
(1) In compliance with ORS chapter 183, promulgate rules
consistent with law for the enforcement of the state forest laws
relating directly to the protection of forestland and the
conservation of forest resources.
(2) Appoint and instruct fire wardens as provided in ORS
chapter 477.
(3) Direct the improvement and protection of forestland owned
by the State of Oregon.
(4) Collect data relative to forest conditions.
(5) Take action authorized by law to prevent and extinguish
forest, brush and grass fires.
(6) Enforce all laws pertaining to forestland and prosecute
violations of such laws.
(7) Cooperate with landowners, political subdivisions, private
associations and agencies and others in forest protection.
(8) Advise and encourage reforestation.
(9) Publish such information on forestry as the
{ - forester - } { + director + } determines to be in the
public interest.
(10) Enter into contracts and cooperative agreements pertaining
to experiments and research in forestry.
(11) Sell, exchange or otherwise dispose of any real property
heretofore or hereafter acquired by the { - board - }
{ + Oregon Department of Natural Resources + } for
administrative purposes and no longer needed.
{ - (12) Coordinate any activities of the State Forestry
Department related to a watershed enhancement project approved by
the Oregon Watershed Enhancement Board under ORS 541.375 with
activities of other cooperating state and federal agencies
participating in the project. - }
{ - (13) - } { + (12) + } Prescribe uniform state standards
for certification of wildland fire training courses and
educational programs.
SECTION 1924a. ORS 526.046 is amended to read:
526.046. (1) Under the direction of the { - State Board of
Forestry, the forester - } { + Oregon Department of Natural
Resources, the Director of the Oregon Department of Natural
Resources + }:
(a) Shall, upon request, and whenever the { - forester - }
{ + director + } deems that it is in the public interest, assist
and cooperate with any federal or state department or any
institution, political subdivision or person owning or
controlling forestland within this state, in the preparation of
plans for their protection, management, replacement or extension.
Unless otherwise provided by law, the parties obtaining such
assistance shall pay the necessary costs of travel, subsistence
and other field expenses incurred by the { - forester - }
{ + director + } or the assistants of the { - forester - }
{ + director + } in the preparation and execution of these
plans.
(b) May enter into contracts with the applicants under which
the { - forester - } { + director + } will supervise the
execution of the plans. However, the costs of carrying out the
plans shall be paid by the applicants.
(2) In carrying out this section the { - forester - }
{ + director + } may require the applicant to deposit in one or
more installments the moneys needed to cover the cost of
preparing and executing the plans. These deposits shall be
{ - placed in the State Treasury, credited to the State Forestry
Department Account and used exclusively for the purposes of this
section. - } { + deposited in the Oregon Natural Resources
Fund. Moneys deposited in the fund under this subsection are
continuously appropriated to the department for the purposes of
this section. + }
SECTION 1925. ORS 526.052 is amended to read:
526.052. (1) For purposes of this section, 'forest protective
association' or 'association' has the meaning for that term
provided in ORS 477.001.
(2) Subject to subsection (3) of this section, a person
employed by a forest protective association at a time when the
association was under contract or cooperative agreement with the
{ - forester or State Board of Forestry - } { + Director of
the Oregon Department of Natural Resources or the Oregon Natural
Resources Commission + } by authority of ORS chapter 477 and this
chapter, with specific reference to ORS 477.406 to 477.412, or
predecessor statutes, shall receive the following credits when
transferring directly from association employment to employment
by the { - State Forestry Department - } { + Oregon
Department of Natural Resources + }:
(a) Sick leave accrual earned during employment as an
association employee.
(b) Rate of accumulating annual leave based on years of service
as an association employee.
(c) Credit for current service under the Public Employees
Retirement System equal to periods of service as an association
employee as determined by the Public Employees Retirement Board,
if the person, before the effective date of retirement of the
person as a member of the system, applies in writing to the
retirement board for that credit or any part thereof and pays to
the retirement board in a lump sum for credit to the member
account of the member an amount determined by the retirement
board to be equal to the total amount of employee and employer
contributions with interest that would have accumulated had the
person been a member of the system as an employee of the
{ - State Forestry - } department in a position equivalent to
that held by the person for the periods of service or part
thereof as an association employee.
(3) The credits granted by subsection (2) of this section shall
be granted if the employee makes an immediate transfer from
association employment to state employment, and if the person
earned employment credits as an association employee under
standards comparable to laws and rules of the State of Oregon
governing similar credits in state employment.
(4) Unless the employee transferring to employment with the
{ - State Forestry - } department first becomes a member of
the Public Employees Retirement System before January 1, 2000, as
described in subsection (6) of this section:
(a) The employee may acquire credit under subsection (2)(c) of
this section only after the employee has been a member of the
Public Employees Retirement System for at least 60 calendar
months; and
(b) The maximum number of years of retirement credit that a
person may acquire under subsection (2)(c) of this section is
five years.
(5) If a person subject to the limitation imposed by subsection
(4)(b) of this section is also eligible for credit under ORS
238.145, and the person is subject to the limitation imposed by
ORS 238.145 (4), the total years of credit that the person may
acquire under this section and under the provisions of ORS
238.145 may not exceed five years.
(6) A person becomes a member of the Public Employees
Retirement System before January 1, 2000, for the purposes of
this section if:
(a) The person is a member of the system on January 1, 2000; or
(b) The person was a member of the system before January 1,
2000, ceased to be a member of the system under the provisions of
ORS 238.095, 238.265 or 238.545 before January 1, 2000, but
restores part or all of the forfeited creditable service from
before January 1, 2000, under the provisions of ORS 238.105 or
238.115 after January 1, 2000.
SECTION 1926. ORS 526.060 is amended to read:
526.060. { - (1) Except as provided in ORS 526.121, 530.147
and 530.280, all assessments, federal apportionments or
contributions, and other moneys received by the forester or State
Board of Forestry, shall be paid into the State Treasury and
credited to the State Forestry Department Account, which is
established separate and distinct from the General Fund. All
moneys in the State Forestry Department Account are continuously
appropriated, and shall be used by the forester, under the
supervision and direction of the board, for the purposes
authorized by law. - }
{ - (2) The forester shall keep a record of all moneys
deposited in the State Forestry Department Account. The record
shall indicate by separate cumulative accounts the source from
which the moneys are derived and the individual activity or
program against which each withdrawal is charged. All moneys in
the account received pursuant to ORS 527.610 to 527.770 and
527.992 shall be used only for carrying out the duties, functions
and powers of the State Forestry Department in administering ORS
527.610 to 527.770 and 527.992. - }
{ + (1) All moneys received pursuant to ORS 527.610 to
527.770 and 527.992 shall be deposited in the Oregon Natural
Resources Fund. Moneys deposited in the fund under this
subsection are continuously appropriated to the Oregon Department
of Natural Resources for purposes related to the administration
of ORS 527.610 to 527.770 and 527.992. + }
{ - (3) - } { + (2) + } The Urban and Community Forestry
Subaccount is established as a subaccount of the { - State
Forestry Department Account - } { + Oregon Natural Resources
Fund + }. Moneys in the Urban and Community Forestry Subaccount
are continuously appropriated to the
{ - State Forestry Department - } { + department + } to be
used for urban and community forest activities described in ORS
469.634 and 469.652.
{ - (4) - } { + (3) + } The State Forest Enhancement
Donation Subaccount is established as a subaccount { - to the
State Forestry Department Account - } { + of the Oregon Natural
Resources Fund + }. Moneys in the State Forest Enhancement
Donation Subaccount are continuously appropriated to the
{ - State Forestry - } department to be used for the purposes
described in ORS 526.065.
{ - (5) - } { + (4) + } The State Forest Nursery Subaccount
is established as a subaccount { - to the State Forestry
Department Account - } { + of the Oregon Natural Resources
Fund + }. Moneys in the State Forest Nursery Subaccount are
continuously appropriated to the { - State Forestry - }
department to be used for the purposes described in ORS 526.235.
{ - (6) - } { + (5) + } The State Forest Tree Seed Bank
Subaccount is established as a subaccount { - to the State
Forestry Department Account - } { + of the Oregon Natural
Resources Fund + }. Moneys in the State Forest Tree Seed Bank
Subaccount are continuously appropriated to the { - State
Forestry - } department to be used for the purposes described in
ORS 526.470.
{ - (7) - } { + (6) + } The State Forest Tree Seed Orchard
Subaccount is established as a subaccount { - to the State
Forestry Department Account - } { + of the Oregon Natural
Resources Fund + }. Moneys in the State Forest Tree Seed Orchard
Subaccount are continuously appropriated to the { - State
Forestry - } department to be used for the purposes described in
ORS 526.472.
{ - (8) - } { + (7) + } Notwithstanding ORS 291.238, the
moneys credited to the subaccounts established under subsections
{ - (5), (6) and (7) - } { + (4), (5) and (6) + } of this
section shall be continuously available on a revolving basis.
SECTION 1927. ORS 526.065 is amended to read:
526.065. (1) The { - State Forestry Department - }
{ + Oregon Department of Natural Resources + } may receive
gifts, grants, bequests, endowments and donations of moneys,
labor or materials from public and private sources for the
purpose of contributing to the management and enhancement of
state forests, including but not limited to activities such as
recreation, education, interpretation, research and monitoring,
cultural resources management and habitat improvement.
(2) The department may apply for, accept and utilize grants
from the federal government to accomplish the goals of a federal
forest legacy program. In implementing the federal forest legacy
program, the department shall ensure that the program complies
with all land use laws and regulations.
(3) On or before January 15 of each odd-numbered year, the
{ - State Forester - } { + Director of the Oregon Department
of Natural Resources + } shall report to the committee created by
ORS 171.555 and to any legislative committee with responsibility
for forestry issues regarding:
(a) The number and monetary amounts of grants applied for under
the federal forest legacy program;
(b) The number and monetary amounts of grants awarded under the
federal forest legacy program; and
(c) The location and disposition of areas affected by the
federal forest legacy program.
(4) The department shall deposit moneys received under this
section into the State Forest Enhancement Donation Subaccount
created under ORS 526.060. The department may expend moneys,
materials or labor received under this section only for the
purposes specified in the gift, grant, bequest, endowment or
donation. If no purpose is specified, the department may use the
moneys, materials or labor for the management and enhancement of
state forests.
SECTION 1928. ORS 526.090 is amended to read:
526.090. The { - forester, under the supervision and
direction of the State Board of Forestry, - } { + Director of
the Oregon Department of Natural Resources + } may receive moneys
from the federal government in connection with cooperative work
and programs set out in the Agricultural Act of 1956, as amended
(Public Law 84-540, 70 Stat. 188), particularly the provisions of
Title I (7 U.S.C. 1801 to 1837) and Title IV (16 U.S.C. 568e to
568g), and Acts amendatory thereof and supplemental or
complementary thereto.
SECTION 1929. ORS 526.095 is amended to read:
526.095. The State of Oregon has accepted the provisions of the
Clarke-McNary Act (43 Stat. 653), as amended, and will observe
and comply with the requirements of that Act. The { - forester,
under the supervision and direction of the State Board of
Forestry, - } { + Director of the Oregon Department of Natural
Resources + } is the agent of the State of Oregon for the
purposes of that Act, and may cooperate with the authorities of
the United States having powers and duties under that Act to do
all things necessary to secure to the State of Oregon the
benefits of that Act or Acts amendatory thereof and supplemental
or complementary thereto.
SECTION 1930. ORS 526.105 is amended to read:
526.105. All moneys received pursuant to the Acts of Congress
mentioned in ORS 526.090 and 526.095 shall be { - paid into the
State Treasury, credited to the State Forestry Department
Account, and used exclusively for the purposes of the
respective - } { + deposited in the Oregon Natural Resources
Fund. Moneys deposited in the fund under this section are
continuously appropriated to the Oregon Department of Natural
Resources for purposes related to the administration of the + }
Acts.
SECTION 1931. ORS 526.111 is amended to read:
526.111. (1) Notwithstanding ORS 291.238 or any other law, a
revolving account in the sum of $750,000 deposited with the State
Treasurer shall be at the disposal of the { - forester - }
{ + Director of the Oregon Department of Natural Resources + }
for the payment of:
(a) Lawful expenses incurred under the direction of the
{ - forester and the State Board of Forestry - } { + director
and the Oregon Natural Resources Commission + } in the prevention
or suppression of fire and the protection of forestlands; and
(b) Miscellaneous bills and extraordinary items which are
payable in cash immediately upon presentation.
(2) The { - forester - } { + director + } may draw checks
upon the State Treasurer in making disbursements from the
revolving account for the purposes stated in this section.
Reimbursement of such disbursements shall be made from funds and
accounts budgeted and allotted for expenses of the { - State
Forestry Department - } { + Oregon Department of Natural
Resources + }. The revolving account is not subject to allotment
or allocation of moneys pursuant to ORS 291.234 to 291.260.
SECTION 1932. ORS 526.121 is amended to read:
526.121. (1) Reimbursement vouchers for claims paid from the
revolving account created by ORS 526.111 shall be approved by the
{ - forester - } { + Director of the Oregon Department of
Natural Resources + }. Warrants in payment of the vouchers shall
be drawn in favor of the
{ - forester - } { + director + } and deposited with the
State Treasurer to reimburse the revolving account.
(2) The { - forester - } { + director + } shall maintain
such records as readily disclose the true status of vouchers
payable from, and checks outstanding against, the revolving
account and the balance to the credit thereof.
SECTION 1933. ORS 526.125 is amended to read:
526.125. (1) The { - State Forestry Department - }
{ + Oregon Department of Natural Resources + } may receive and
disburse gifts, grants, bequests, endowments and donations of
labor and material from public and private sources for the
purpose of developing and operating a forest interpretation and
education center in the Tillamook State Forest.
(2) The Tillamook Forest Interpretive Center Fund is created in
the State Treasury, separate and distinct from the General Fund.
All moneys received by the { - State Forestry - } department
under subsection (1) of this section shall be paid into the State
Treasury and credited to the Tillamook Forest Interpretive Center
Fund. All interest earned by the fund shall be credited to the
fund.
(3) All moneys in the Tillamook Forest Interpretive Center Fund
are continuously appropriated to the { - State Forestry - }
department and may be expended only for the purposes specified in
the gift or donation, or, if no purpose is specified, only for
the purpose of forest interpretation and education.
SECTION 1934. ORS 526.131 is amended to read:
526.131. Subject to the allotment provisions of ORS 291.238,
the { - State Forester and State Board of Forestry - }
{ + Director of the Oregon Department of Natural Resources and
the Oregon Natural Resources Commission + } hereby are authorized
to purchase or accept excess and surplus property from the United
States.
SECTION 1935. ORS 526.135 is amended to read:
526.135. The { - forester, with the approval of the State
Board of Forestry, - } { + Director of the Oregon Department of
Natural Resources, with the approval of the Oregon Natural
Resources Commission, + } may lease equipment that is under the
jurisdiction
{ - and control of the forester and board to any agency of the
United States. - } { + or control of the director or the
commission to any agency of the United States for purposes
related to this chapter or ORS chapter 477. + } However:
(1) The lease must include a reasonable rental fee and require
the lessee to maintain the equipment during the lease period; and
(2) The federal agency must be a cooperator with the
{ - forester and board - } { + director or the commission + }
in common activities and programs for which the equipment is
leased.
SECTION 1936. ORS 526.142 is amended to read:
526.142. As used in ORS 526.142 to 526.152 { - , - }
{ + : + }
{ + (1) + } 'Equipment' includes the necessary materials and
supplies for the operation of equipment in the equipment pool
authorized by ORS 526.144 { + ; and
(2) 'Equipment pool' means the aggregate of equipment
transferred or purchased pursuant to ORS 526.144 for purposes
related to acquiring, operating, storing, maintaining or
replacing equipment used in the administration of this state's
forestlands + }.
SECTION 1937. ORS 526.144 is amended to read:
526.144. (1) { - The equipment pool operated by the forester
and the State Board of Forestry, which furnishes transportation
and equipment for the various activities and programs of the
board, is for the acquisition, operation, storage, maintenance
and replacement of equipment. Notwithstanding any other law, the
forester, under the direction of the board, - } { + In
administering this state's forestlands, the Director of the
Oregon Department of Natural Resources, under the direction of
the Oregon Natural Resources Commission + } may:
(a) Determine each activity or program of the { - board - }
{ + Oregon Department of Natural Resources + } that shall
participate in the equipment pool, and in so doing, cause the
transfer of moneys from the account representing such activity or
program in an amount determined advisable for equipment pool
purposes. However, in each instance the transfer of moneys must
be based on the proportionate use of the equipment pool, or the
proposed use thereof, by the activity or program.
(b) Transfer equipment to the equipment pool, which items of
transfer are owned by the State of Oregon and under the
jurisdiction of the { - board or forester - }
{ + department + }. In such event the records shall reveal the
cash value of the transferred items as of the date of the
transfer.
(2) Forest protective associations or agencies under contract
or cooperative agreement with the { - board - }
{ + director + } pursuant to ORS 477.406 may, with the approval
of the { - board - } { + director + }, participate in the
equipment pool for the purposes of the contract or agreement.
Participation by such an association or agency shall be on the
same basis as an activity or program of the { - board - } { +
director + } that participates in the equipment pool.
SECTION 1938. ORS 526.146 is amended to read:
526.146. (1) All items transferred under ORS 526.144, together
with any equipment purchased from moneys transferred to the
equipment pool, are available for all activities or programs
participating in the equipment pool. However, upon use of such
equipment for any activity or program, a reasonable use charge
shall be made against such activity or program. The charge shall
be based upon the maintenance and replacement costs for the
equipment used, including operational expenses.
(2) At the end of each month the { - forester, under the
supervision and direction of the State Board of Forestry, - }
{ + Director of the Oregon Department of Natural Resources + }
shall render a statement on a basis of mileage or rental against
each activity or program for transportation or equipment used or
furnished for such activity or program. Administrative costs in
connection with the operation of the equipment pool shall be
included in the computation of the mileage or rental statement.
The { - forester - } { + director + } shall at all times keep
records showing the mileage and rental charges, and against which
activity or program the charges are a claim. The amount specified
in the statement shall be a charge against the moneys available
for such activity or program. All amounts so charged shall be
{ - credited to the State Forestry Department Account and,
notwithstanding ORS 291.238, are available and shall be used
exclusively - } { + deposited in the Oregon Natural Resources
Fund and, notwithstanding ORS 291.238, are continuously
appropriated to the Oregon Department of Natural Resources + }
for:
(a) The acquisition, operation, storage, maintenance, repair
and replacement of equipment { - by the forester - } { + used
in the administration of this state's forestlands by the
director + };
(b) Administrative expenses of the { - forester and the
board - } { + director and the Oregon Natural Resources
Commission + } in connection therewith; and
(c) The payment of insurance premiums for such equipment.
SECTION 1939. ORS 526.148 is amended to read:
526.148. (1) The { - forester and State Board of Forestry - }
{ + Director of the Oregon Department of Natural Resources or
the Oregon Natural Resources Commission + } may lease
communication equipment owned or acquired under ORS 526.144 to
any forest protective association or agency under contract or
agreement with the { - board - } { + director pursuant to ORS
477.406 + } for the protection of forestland against fire.
However, the communication equipment may be used only for
purposes of the forest protection system designated in ORS
477.005. Any lease so made must provide for a rental at the
current rates established for the equipment pool. All amounts so
charged shall be credited as provided in ORS 526.146.
(2) At the option of the { - board - } { + director or the
commission + }, the lease agreements made under this section may
be merged under the equipment pool administration and equities
set forth in ORS 526.152.
SECTION 1940. ORS 526.152 is amended to read:
526.152. (1) Any proceeds from the sale or other disposition of
equipment of the equipment pool shall be { - credited to the
State Forestry Department Account - } { + deposited in the
Oregon Natural Resources Fund and are continuously appropriated
to the Oregon Department of Natural Resources + } for equipment
pool purposes.
(2) Should the equipment pool be terminated { - by the State
Board of Forestry - } , each activity or program shall have an
equity in the moneys of the pool and in the cash value of the
equipment and personalty of the pool. The equity shall be in
proportion to the amount of moneys and value of the equipment and
personalty transferred to the pool under ORS 526.144. By this
subsection, each activity or program participating in the
equipment pool has a continuing and recognized interest in the
total value of the pool so long as the equipment pool exists
unless otherwise such equity is purchased.
SECTION 1941. ORS 526.156 is amended to read:
526.156. (1) A Forest Trust Land Advisory Committee is
established to be composed of the board of directors of the
Council of Forest Trust Land Counties.
(2) Members may receive reimbursement for actual and reasonable
traveling and other expenses necessarily incurred in performing
official duties. This reimbursement shall not be deemed
lucrative.
(3) The committee shall advise the { - State Board of
Forestry and the State Forester - } { + Director of the Oregon
Department of Natural Resources and the Oregon Natural Resources
Commission + } on the management of lands subject to the
provisions of ORS 530.010 to 530.170 and on other matters in
which counties may have a responsibility pertaining to
forestland. The { - board and the State Forester - }
{ + director and the commission + } shall consult with the
committee with regard to such matters.
SECTION 1942. ORS 526.162 is amended to read:
526.162. In all cases where a title in fee simple to real
property is acquired by the { - State Board of Forestry - }
{ + Oregon Natural Resources Commission + } under ORS 526.166 or
526.168, such title shall be taken in the name of the State of
Oregon.
SECTION 1943. ORS 526.164 is amended to read:
526.164. The { - State Board of Forestry - } { + Oregon
Natural Resources Commission + } may convey to any person all or
parts of the real property described in ORS 526.166 or 526.168,
in exchange for other property, real or personal, which, in the
judgment of the
{ - board - } { + commission + }, is of equal or superior
value for public use.
SECTION 1944. ORS 526.166 is amended to read:
526.166. { - In addition to any authority otherwise granted
by law, the State Board of Forestry - } { + For purposes
related to the administration of this state's forestlands, the
Oregon Natural Resources Commission + } may acquire, by purchase,
agreement or donation, real property or any interest therein,
including easements and ways, found necessary by the
{ - board - } { + commission + } for:
(1) Rights of way to lands of the state { - , which lands are
under the management or jurisdiction of the board or forester - }
{ + that are under the jurisdiction of the Oregon Department of
Natural Resources + }.
(2) Forest patrol sites, administrative sites, nursery sites,
communication sites, construction of shops, equipment sheds and
office buildings.
(3) Quarry sites, gravel pits and rights of way for pipelines,
communication lines and power lines.
(4) Any other use or purpose necessary in carrying out the
powers and duties of the { - board or forester - }
{ + commission that relate to the administration of this state's
forestlands + }.
SECTION 1945. ORS 526.168 is amended to read:
526.168. { - In addition to any authority otherwise granted
by law, the State Board of Forestry - } { + For purposes
related to the administration of this state's forestlands, the
Oregon Natural Resources Commission + } may acquire, by the
exercise of the power of eminent domain, real property or any
interest therein, including easements and ways, found necessary
by the { - board - } { + commission + } for:
(1) Rights of way to lands of the state { - , which lands are
under the management or jurisdiction of the board or forester - }
{ + that are under the management or jurisdiction of the Oregon
Department of Natural Resources + }.
(2) Forest patrol or communication sites.
(3) Rights of way for pipelines, communication lines and power
lines.
SECTION 1946. ORS 526.178 is amended to read:
526.178. The { - State Board of Forestry, or any duly
authorized representative of the board, - } { + Director of the
Oregon Department of Natural Resources, the Oregon Natural
Resources Commission or an authorized representative of the
director or commission + } may go upon private property in the
manner provided by ORS 35.220 to determine the advisability or
practicability of acquiring real property or any interest in real
property.
SECTION 1947. ORS 526.192 is amended to read:
526.192. After request of the { - State Board of Forestry - }
{ + Oregon Natural Resources Commission + } pursuant to ORS
35.235 (1), the Attorney General shall commence and prosecute, in
any court of competent jurisdiction in the name of the State of
Oregon, the necessary or appropriate suit, action or proceeding
for condemnation of the amount of or interest in the property
required for such purposes, and for the assessment of the damages
for the taking thereof.
SECTION 1948. ORS 526.194 is amended to read:
526.194. The { - State Board of Forestry - } { + Oregon
Natural Resources Commission + } may sell, lease, exchange,
permit use of or otherwise dispose of any real property, or
interest therein, acquired pursuant to ORS 526.162 to 526.194,
when, in the judgment of the { - board - }
{ + commission + }, such will best serve the interests of the
state. In the case of real property, interest in or title to the
same may be conveyed by deed or other instrument executed in the
name of the state, by and through the { - board - }
{ + commission + }. All funds or moneys derived from the sale or
lease of any such property shall be { - paid by the board to
the State Treasurer and by the State Treasurer credited to the
funds from which moneys originally were used for the acquisition
of the property involved. - } { + deposited in the Oregon
Natural Resources Fund. Moneys deposited in the fund under this
subsection are continuously appropriated to the Oregon Department
of Natural Resources for the purpose of carrying out the duties,
functions and powers of the department as prescribed by section 1
(10) and (11) of this 2011 Act. + }
SECTION 1949. ORS 526.233 is amended to read:
526.233. The Legislative Assembly intends that ORS 526.237 and
the amendments to ORS 526.235 by section 4, chapter 541, Oregon
Laws 2005, authorize the displacement of competition in the
forest tree seedling industry to a limited degree. The regulatory
program of the { - State Forester - } { + Director of the
Oregon Department of Natural Resources + } described in ORS
526.237 is intended to grant immunity from state and federal
antitrust laws to a cooperative and its members that enter into
an agreement with the { - forester or the State Board of
Forestry - } { + director or the Oregon Natural Resources
Commission + } for the members to produce nonindustrial private
forest tree seedlings for the { - forester and the board - }
{ + director or commission + }. The activities that any person
performs in compliance with ORS 526.237 may not be considered in
restraint of trade, a conspiracy or combination or any other
unlawful activity in violation of ORS 646.705 to 646.805 or
federal antitrust laws.
SECTION 1950. ORS 526.235 is amended to read:
526.235. (1) A state forest nursery may be operated by the
{ - forester and the State Board of Forestry - } { + Director
of the Oregon Department of Natural Resources or the Oregon
Natural Resources Commission + } to provide forest tree seedlings
for the reforestation of forestland. The nursery program may
provide for the growth, care and maintenance of nursery stock and
for the sale of such stock to private, state and other public
owners of forestland.
(2) The { - forester and the board - } { + director or
commission + } may use means in addition to, or instead of,
operating a state forest nursery under subsection (1) of this
section to secure forest tree seedlings and may sell those forest
tree seedlings to private, state and other public owners of
forestland. The means of securing forest tree seedlings may
include, but need not be limited to:
(a) Contracting with private nurseries to grow forest tree
seedlings;
(b) Allocating all or part of forest tree seedling production
on behalf of the { - forester and the board - } { + director
or commission + } to a cooperative of private growers under ORS
526.237; and
(c) Leasing or otherwise making state nursery property
available for operation by private growers of forest tree
seedlings.
(3) Each year the { - forester - } { + director + } shall
determine the costs of nursery operation and of securing forest
tree seedlings under subsection (2) of this section and shall
offer nursery stock or otherwise secured forest tree seedlings
for sale to forest owners at prices that will recover actual
costs.
(4) All revenues derived from the selling of nursery stock and
otherwise secured forest tree seedlings shall be { - credited
to the State Forestry Department Account and - } deposited in
the State Forest Nursery Subaccount established in ORS 526.060.
SECTION 1951. ORS 526.237 is amended to read:
526.237. (1) As used in this section:
(a) 'Cooperative' means a cooperative of forest tree seedling
growers formed under ORS chapter 62 for the purpose of allocating
among those growers agreements to grow forest tree seedlings
under this section.
(b) 'Member' means a grower who qualifies and is accepted for
membership in the cooperative.
(2) The { - State Forester and the State Board of
Forestry - } { + Director of the Oregon Department of Natural
Resources or the Oregon Natural Resources Commission + } may
secure forest tree seedlings for the reforestation of forestlands
by means that include, but need not be limited to, entering into
agreements with a cooperative to allocate among the members of
the cooperative the production of forest tree seedlings for the
{ - forester and the board - } { + director or commission + }
in amounts, types and species specified by the { - board - }
{ + director or commission + }.
(3) The { - forester - } { + director + } shall actively
supervise the conduct of the cooperative and members in carrying
out agreements described in subsection (2) of this section to
ensure that the activities of the cooperative and members are
consistent with the provision of a reasonably priced, adequate
and reliable source of high-quality forest tree seedlings. The
{ - forester - } { + director + } may inspect during
reasonable hours any facility or land used by a member to produce
forest tree seedlings for the { - forester and the board. The
forester - } { + director or commission. The director + } may
examine, test and take samples of forest tree seedlings being
produced by the member for the { - forester and the board - }
{ + director or commission + }.
(4) The { - forester - } { + director + } may assess a
charge on forest tree seedlings grown by a member under a
production allocation. Any charges collected under this
subsection shall be deposited in the { - State Forestry
Department Account - } { + Oregon Natural Resources Fund + }
and are continuously appropriated to the { - forester - }
{ + director + } for purposes of carrying out the duties of the
{ - forester - } { + director + } under this section.
SECTION 1952. ORS 526.255 is amended to read:
526.255. The { - forester - } { + Director of the Oregon
Department of Natural Resources + } shall submit a biennial
report to the Governor and to those committees of the Legislative
Assembly with responsibility for forestry matters. The report
shall contain matters that include, but are not limited to:
(1) The long range management plans based on current resource
descriptions and technical assumptions, including sustained yield
calculations for the purpose of maintaining economic stability in
each management region.
(2) Marketing, reforestation and intensive management programs
for the last completed biennium and the current biennium, and
projected programs for the ensuing biennium. The marketing report
shall include volume and value of new sales, volume and value of
timber harvested and timber sales receipts distributed to
counties and to the Common School Fund.
(3) The programmed harvest level on federal lands or federal
policy changes that would impact that level of harvest on lands
in Oregon.
SECTION 1953. ORS 526.265 is amended to read:
526.265. (1) The { - State Forester - } { + Director of the
Oregon Department of Natural Resources + } may conduct biennial
public hearings in each management region to report the matters
included in ORS 526.255 and to accept public testimony.
(2) For the purpose of this section and ORS 526.255, the
following forest management regions are established:
(a) Northwest Region, consisting of Clatsop, Columbia,
Tillamook, Washington and Yamhill Counties.
(b) Willamette Region, consisting of Multnomah, Clackamas,
Marion, Polk, Lincoln, Benton, Linn and Lane Counties.
(c) Southern Region, consisting of Douglas, Coos, Curry,
Josephine and Jackson Counties.
(d) Eastern Region, consisting of Hood River, Wasco, Gilliam,
Sherman, Morrow, Umatilla, Union, Wallowa, Jefferson, Wheeler,
Grant, Baker, Deschutes, Crook, Klamath, Lake, Harney and Malheur
Counties.
SECTION 1954. ORS 526.271 is amended to read:
526.271. The Legislative Assembly finds and declares that:
(1) The { - State Forestry Department - } { + Oregon
Department of Natural Resources + } is well-positioned, due to
experience in managing Oregon forests and its understanding of
science-based, active forest management, to facilitate state
government participation in forest management on federal lands
located within the state.
(2) { - The State Department of Fish and Wildlife has
expertise with fish and wildlife habitat and - } The Department
of Environmental Quality has expertise with water quality { - .
Both departments have - } { + and thus has + } an important
role to play in the management of federal forests located within
the state.
(3) A collaborative relationship between the { - State
Forestry Department - } { + Oregon Department of Natural
Resources + }, the federal government, other agencies of the
executive department, as defined in ORS 174.112, interested
persons and nongovernmental organizations may restore the health,
diversity and resilience of federal forests by increasing the
information shared and by providing a variety of perspectives on
site-specific and landscape-level determinations.
(4) In cooperation with the { - State Forestry Department - }
{ + Oregon Department of Natural Resources + } and the federal
government, many communities in wildfire-prone areas have
completed a community wildfire protection plan that identifies
priority areas for hazardous fuel removal from federal lands.
(5) The federal government has provided opportunities for
agencies of the executive department, as defined in ORS 174.112,
to become involved, to a greater extent, in the management of
federal lands.
SECTION 1955. ORS 526.274 is amended to read:
526.274. In furtherance of the policy established in ORS
526.271, the { - State Board of Forestry - } { + Oregon
Natural Resources Commission + }, in consultation with the
Governor, may:
(1) In conformance with federal law, including Public Law
108-7, { - direct the State Forester - } { + work with the
Director of the Oregon Department of Natural Resources + } to
facilitate the development of stewardship contracts utilizing
private contractors and, when appropriate, to seek and enter into
a stewardship contract agreement with federal agencies to carry
out forest management activities on federal lands. The
{ - State Forester - } { + director + } may, under the
stewardship contract agreements:
(a) Perform road and trail maintenance;
(b) Set prescribed fires to improve forest health, composition,
structure and condition;
(c) Manage vegetation;
(d) Perform watershed restoration and maintenance;
(e) Restore wildlife habitat;
(f) Control exotic weeds and species; and
(g) Perform other activities related to stewardship.
(2) Create a forum for interagency cooperation and
collaborative public involvement regarding federal forest
management issues that may include, at the discretion of the
{ - board - } { + commission + }, the appointment of advisory
committees, the use of existing advisory committees and
procedures for holding public hearings.
(3) { - Provide guidelines for the State Forestry Department
and State Forester to follow that contain directions - }
{ + Adopt guidelines + } regarding the management of federal
lands and that specify the goals and objectives of the
{ - board - } { + commission + } regarding the management of
federal lands.
(4) Participate, to the extent allowed by federal law, in the
development of federal forest policies and the forest management
planning processes of federal agencies.
(5) { - Provide guidelines for the department to follow
in - } { + Adopt guidelines for + } implementing this section.
(6) Coordinate with Oregon State University, { - the State
Department of Fish and Wildlife, the Oregon Forest Resources
Institute, - } the Department of Environmental Quality, the
Oregon Business Development Department, the State Department of
Energy and other agencies of the executive department, as defined
in ORS 174.112, to assist the { - State Forestry Department - }
{ + Oregon Department of Natural Resources + } in carrying out
the provisions of this section.
SECTION 1956. ORS 526.280 is amended to read:
526.280. In furtherance of the policy established in ORS
526.277, the { - State Forester - } { + Director of the
Oregon Department of Natural Resources + } shall:
(1) Establish a policy of active and inclusive communication
with the federal government, public bodies as defined in ORS
174.109, residents of Oregon and interested parties regarding the
utilization of woody biomass produced through forest health
restoration. The { - State Forester - } { + director + }
shall actively utilize the statutory provisions of the National
Forest Management Act of 1976, the Forest and Rangeland Renewable
Resources Planning Act of 1974, the National Environmental Policy
Act of 1969, the Federal Land Policy and Management Act of 1976
and the Healthy Forests Restoration Act of 2003 that allow the
state to participate in federal policy development in a manner
that expresses the policy established in ORS 526.277.
(2) Promote public involvement in the identification of the
areas of interface between urban lands and forestlands that pose
the highest potential to threaten lives and private property.
(3) Solicit public comment on the location of biomass-based
energy projects and conversion facilities.
(4) Promote public understanding, through education and
outreach, of forest conditions, forest management options, the
potential benefits and potential consequences of woody biomass
utilization, the quality and quantity of woody biomass on federal
lands and the potential for woody biomass utilization to assist
in reducing wildfire risk and in enhancing forest health,
diversity and resilience. The { - State Forestry Department - }
{ + Oregon Department of Natural Resources + } may coordinate
with the State Department of Energy, the Oregon Business
Development Department, Oregon State University, { - the State
Department of Fish and Wildlife, - } the Department of
Environmental Quality and other entities in any education
{ - and outreach - } { + or outreach program + } performed
pursuant to this subsection.
(5) { - Allow the State Forestry Department to - } Conduct
inventories of the types of woody biomass available and to serve
as an information resource for persons seeking to utilize woody
biomass for energy development. Notwithstanding ORS 192.501,
reports on any inventories of biomass conducted by the
{ - department - } { + Oregon Department of Natural
Resources + } shall be made available for public inspection.
(6) Promote public understanding that woody biomass utilization
may be an effective tool for restoration of forest health and for
economic development in rural communities.
(7) Develop and apply, with advice from the forestry program at
Oregon State University, { - the State Department of Fish and
Wildlife, - } the Department of Environmental Quality and other
sources, the best available scientific knowledge and technologies
pertaining to forest and wildlife habitat restoration and woody
biomass utilization when developing rules under ORS 527.630.
(8) Seek opportunities to provide a source of woody biomass
from federal, tribal, state and private forests.
(9) Prepare a report every three years utilizing, to the
greatest extent practicable, data collected from state and
federal sources that specify the effect of woody biomass
collection and conversion on the plant and wildlife resources and
on the air and water quality of this state. The report shall
identify any changes that the { - State Forester - }
{ + director + } determines are necessary to encourage woody
biomass collection and conversion and to avoid negative effects
on the environment from woody biomass collection and conversion.
The { - State Forester - } { + director + } shall submit the
report to the Governor and to an appropriate legislative interim
committee with jurisdiction over forestry issues.
SECTION 1957. ORS 526.310 is amended to read:
526.310. (1) Pursuant to a request by the { - State
Forester - } { + Director of the Oregon Department of Natural
Resources + }:
(a) The governing body of a county may establish a forestland
classification committee of six persons, of whom one shall be
appointed by the { - State Forester - } { + Director of the
Oregon Department of Natural Resources + }, one by the Director
of the Oregon State University Extension Service, one by the
State Fire Marshal and three by the governing body. Of the
members appointed by the governing body, one must be an owner of
forestland, and, if the land to be investigated and studied by
the committee includes or is expected to include grazing land,
one must be an owner of grazing land; or
(b) The governing bodies of two or more counties may, by
written agreement, establish a joint forestland classification
committee. One member of a joint committee shall be appointed by
the { - State Forester - } { + Director or the Oregon
Department of Natural Resources + }, one by the Director of the
Oregon State University Extension Service and one by the State
Fire Marshal. The governing body of each participating county
shall appoint two members. Of the members appointed by a
governing body to a joint committee, one must be an owner of
forestland.
(2) Each appointing authority shall file with the { - State
Forester - } { + Director of the Oregon Department of Natural
Resources + } the name of its appointee or appointees, and the
persons so named shall constitute the committee. Unless otherwise
provided for by the appointing authority, members of the
committee shall serve a term of four years and may be reappointed
to any number of terms. Each member of the committee at all
times is subject to replacement by the appointing authority,
effective upon the filing with the { - State Forester - }
{ + director + } by that authority of written notice of the name
of the new appointee.
(3) The committee shall elect from among its members a chair
and a secretary and may elect other officers as it finds
advisable. It shall adopt rules governing its organization and
proceedings and the performance of its duties, and shall keep
written minutes of all its meetings.
(4)(a) The governing body of a county may provide for the
committee and its members such accommodations and supplies and
such county funds not otherwise appropriated as the governing
body finds necessary for the proper performance of the
committee's functions.
(b) The { - forester - } { + Director of the Oregon
Department of Natural Resources + } may provide for the committee
and its members such accommodations and supplies and such forest
protection district funds as the { - forester - }
{ + director + } finds necessary for the proper performance of
the committee's functions.
(5) The members of the committee shall receive no compensation
for their services but a governing body or a forest protection
district may reimburse them for their actual and necessary travel
and other expenses incurred in the performance of their duties.
SECTION 1958. ORS 526.328 is amended to read:
526.328. (1) The committee shall hold a public hearing within
the boundaries of its county or within the boundaries of each of
its counties at the time and place stated in the notice published
under ORS 526.324 (2), or at such other time and place as the
hearing may then be adjourned to, to receive from any interested
persons objections, remonstrances or suggestions relating to the
preliminary classifications. Following the hearing the committee
may make such changes to the preliminary classifications as it
finds to be proper, and thereafter shall adopt final
classifications.
(2) All action by the committee in adopting final
classifications shall be by formal written order that must
include a statement of findings of fact on the basis of which the
order is made and must include a list of tax lots affected by the
classifications or reclassifications. The committee shall prepare
one or more maps showing the final classifications, but the maps
may not be included as part of the formal written order. The
original of the order shall be filed with the county clerk of its
county or with the county clerk of each of its counties. The
order need not meet the requirements of ORS 205.232, 205.234 and
205.236 to be filed and recorded. A copy of the order certified
by the secretary of the committee shall be sent to the
{ - State Forester - } { + Director of the Oregon Department
of Natural Resources + }.
SECTION 1959. ORS 526.332 is amended to read:
526.332. (1) Any owner of land classified under ORS 526.328 or
526.340 who is aggrieved by the classification may, within 30
days after the date of the order making the classification,
appeal to the circuit court for the county in which the property
is located. If the forestland classification committee has been
established for more than one county and the property is located
in more than one of those counties, the owner of the land may
appeal to the circuit court for any of those counties. Notice of
an appeal shall be promptly served on the secretary of the
committee or, if the classification was made under ORS 526.340,
on the { - State Forester - } { + Director of the Oregon
Department of Natural Resources + }.
(2) The appeal shall be tried by the circuit court as an action
not triable by right to a jury.
SECTION 1960. ORS 526.335 is amended to read:
526.335. The { - State Board of Forestry - } { + Oregon
Natural Resources Commission + } may adopt rules as necessary to
implement ORS 526.305 to 526.340.
SECTION 1961. ORS 526.340 is amended to read:
526.340. (1) The { - State Forester - } { + Director of the
Oregon Department of Natural Resources + } may identify and
classify forestland in a county, consistent with ORS 526.324 and
526.328, if:
(a) The governing body of a county has failed to establish a
forestland classification committee within two years after the
{ - State Forester - } { + director + } made a request under
ORS 526.310 (1);
(b) A forestland classification committee has failed to adopt
and file a final classification pursuant to ORS 526.328 within
the five-year period after the date the forestland classification
committee was first established; or
(c) A forestland classification committee has failed to act in
a manner consistent with ORS 526.310, 526.320, 526.324 and
526.328.
(2) Classifications by the { - State Forester - }
{ + director + } have the same force and effect as though made
by a forestland classification committee. However,
classifications made by the
{ - State Forester - } { + director + } cease to be effective
if replaced by classifications made pursuant to ORS 526.320,
526.324 and 526.328.
SECTION 1962. ORS 526.350 is amended to read:
526.350. (1) All forest laws relating to forestland classified
pursuant to ORS 526.328 or 526.340, and all rules promulgated
under such laws, shall be so administered as best to promote the
primary use for which that land is classified. Any contract by
the { - State Board of Forestry or the State Forester - } { +
Director of the Oregon Department of Natural Resources or the
Oregon Natural Resources Commission + } with any forest
protective association or agency for the care of any such
forestland shall provide that the care shall be in accord with
the provisions of this section relating to that land.
(2) It shall be the policy of the { - board and the
forester - } { + director and the commission + } as to all
forestland classified in:
(a) Class 1, to give primary consideration to timber production
and reforestation, in preference to grazing or agricultural uses,
not excluding, however, recreation needs or scenic values.
(b) Class 2, to give equal consideration and value to timber
production and the development or maintenance of grazing, either
as a temporary use for the interim between logging and
reforestation or as a permanent or semipermanent joint use.
(c) Class 3, to give primary consideration to the development
of grazing or agriculture, in preference to timber production.
(3) The { - forester - } { + director + }, on forestland
classified pursuant to ORS 526.328 or 526.340, shall administer
the forest laws of this state in accordance with the policy
stated in this section as it applies to the land involved.
SECTION 1963. ORS 526.360 is amended to read:
526.360. (1) The { - State Board of Forestry and the
forester - } { + Director of the Oregon Department of Natural
Resources or the Oregon Natural Resources Commission + } may
assist to the extent possible in developing, for forestry,
grazing or agricultural uses, all forestland classified pursuant
to ORS 526.328 or 526.340 for such uses, including the burning of
brush or other flammable material for the purpose of:
(a) Removing a fire hazard to any property;
(b) Preparing seed beds;
(c) Removing obstructions to or interference with the proper
seeding or agricultural or grazing development or use of that
land;
(d) Promoting the establishment of new forest crops on cutover,
denuded or underproductive lands;
(e) Implementing pest prevention and suppression activities, as
provided in ORS 527.310 to 527.370; or
(f) Promoting improvements to forest health, including
improvements to fish and wildlife habitat.
(2) Upon request of the owner or the agent of the owner of any
forestland classified pursuant to ORS 526.328 or 526.340, the
{ - forester - } { + director + } may perform or supervise
burning operations thereon for any of the purposes stated in
subsection (1) of this section. The owner or the agent of the
owner shall supply such personnel and equipment and shall perform
such fire control actions and activities as the
{ - forester - } { + director + } may require while there is
danger of the fire spreading. The { - forester - } { +
director + } may refuse to perform or supervise burning or to
issue any burning permit when, in the judgment of the
{ - forester - } { + director + }, conditions so warrant.
(3) To accomplish the purposes set forth in subsection (1) of
this section, the { - State Board of Forestry - }
{ + commission + } may establish by rule a Certified Burn
Manager program. The rules shall include:
(a) Certification standards, requirements and procedures;
(b) Standards, requirements and procedures to revoke
certification;
(c) Actions and activities that a Certified Burn Manager must
perform;
(d) Actions and activities that a Certified Burn Manager may
not allow or perform;
(e) Limitations on the use of a Certified Burn Manager; and
(f) Any other standard, requirement or procedure that the
{ - board - } { + commission + } considers necessary for the
safe and effective administration of the program.
(4) When any burning for any of the purposes stated in
subsection (1) of this section on forestland classified pursuant
to ORS 526.328 or 526.340 is started under the supervision of and
supervised by the { - forester - } { + director + } or a
Certified Burn Manager, no person shall be liable for property
damage resulting from that burning unless the damage is caused by
the negligence of the person.
SECTION 1964. ORS 526.370 is amended to read:
526.370. (1) The { - forester - } { + Director of the
Oregon Department of Natural Resources + } may, as a condition
precedent to supervising of any burning as provided in ORS
526.360, require the owner or the agent of the owner in control
of the land involved to agree in writing to seed properly the
land over which the burning operation is to be conducted, with
such seed or seed mixtures as may be suitable for that area.
(2) In the event of failure by the owner or agent of the owner
to seed the property in accordance with such agreement, the
governing body of that county may cause the seeding to be done
and the cost thereof may be recovered by the governing body from
the owner or the agent of the owner by legal action. The cost
shall constitute a lien upon the land seeded. The governing body
shall cause a written statement and notice of such lien,
describing the land and stating the amount of the cost, to be
certified under oath and filed in the office of the county clerk
within 90 days following the completion of reseeding. The lien
may be foreclosed, within six months after such filing, by suit,
in the manner provided by law for foreclosure of liens for labor
and material.
SECTION 1965. ORS 526.425 is amended to read:
526.425. Recognizing that nonindustrial private forests make a
vital contribution to Oregon by providing jobs, products, tax
base and other social and economic benefits, it is hereby
declared to be the public policy of the State of Oregon to
encourage management of nonindustrial private forestlands for
tree production. Therefore, { - under the direction of the
State Board of Forestry and - } to the extent funds are
available, the { - State Forester - } { + Director of the
Oregon Department of Natural Resources + } shall:
(1) Provide for coordinated technical and financial assistance
to the nonindustrial private forest landowner;
(2) Provide management planning for nonindustrial private
forestlands;
(3) Advise and encourage nonindustrial private forest
landowners to carry out young growth management activities, such
as converting underproductive forestlands, reforestation,
release, precommercial thinning and salvaging insect or disease
damaged trees;
(4) Administer federal programs, such as the Agricultural
Conservation Program or Forestry Incentives Program, that are
designed to help encourage management of nonindustrial private
forestlands;
(5) Advise and encourage nonindustrial private forest
landowners to form cooperatives or aggregates for the purpose of
more efficiently carrying out their young growth management
activities;
(6) Periodically advise and recommend changes to the
Legislative Assembly on laws conflicting with the intent of this
statute; and
(7) In compliance with ORS chapter 183, promulgate rules
consistent with law for providing management planning for
nonindustrial private forestlands.
SECTION 1966. ORS 526.455 is amended to read:
526.455. As used in ORS 315.104, 318.031 and 526.450 to
526.475, unless the context requires otherwise:
(1) 'Approved forest management practice' means and includes
site preparation, tree planting, precommercial thinning, release,
fertilization, animal damage control, insect and disease
management or such other young growth management practices that
increase wood growth as { - the State Forester shall approve or
determine proper generally with regard to any particular
applicant - } { + approved or determined to be proper with
regard to a particular applicant by the Director of the Oregon
Department of Natural Resources + }.
{ - (2) 'Board' means State Board of Forestry. - }
{ - (3) - } { + (2) + } 'Commercial forestland' means land
for which a primary use is the growing and harvesting of forest
tree species and other forest resource values.
{ - (4) - } { + (3) + } 'Eligible owner' means any private
individual, group, Indian tribe or other native group,
association, corporation or other nonpublic legal entity owning
10 to 500 acres of Oregon commercial forestland.
{ - (5) - } { + (4) + } 'Forest management plan' means an
operation plan to reach landowner objectives and assures public
benefits as they relate to producing timber and other values. It
shall include a cover map, basic forest stand description data,
treatment opportunities, landowner objectives and a schedule for
implementing the forest management plan.
{ - (6) - } { + (5) + } 'Forest management practices' means
and includes site preparation, tree planting, precommercial
thinning, release, fertilization, animal damage control, insect
and disease management and other young growth management
practices that increase wood growth.
{ - (7) - } { + (6) + } 'Industrial private forestlands'
means lands capable of producing crops of industrial wood,
greater than 10 acres and owned by other than an eligible owner.
{ - (8) - } { + (7) + } 'Industrial wood' means forest
products used to sustain a sawmill, plywood mill, pulp mill or
other forest industry related manufacturing facility.
{ - (9) - } { + (8) + } 'Landowner' means any private
individual, group, Indian tribe or other native group,
association, corporation or other legal entity, owning both the
forestland and any timber thereon.
{ - (10) - } { + (9) + } 'Nonindustrial private
forestlands' means lands capable of producing crops of industrial
wood and owned by an eligible owner.
{ - (11) 'State Forester' means the individual appointed
pursuant to ORS 526.031, or the authorized representative of the
State Forester. - }
{ - (12) - } { + (10) + } 'Timber' means wood growth,
mature or immature, growing or dead, standing or down of species
acceptable for regeneration under the Oregon Forest Practices
Act.
{ - (13) - } { + (11) + } 'Underproductive forestlands'
means commercial forestlands not meeting the minimum stocking
standards of the Oregon Forest Practices Act.
SECTION 1967. ORS 526.455, as amended by section 6, chapter
883, Oregon Laws 2007, is amended to read:
526.455. As used in ORS 318.031 and 526.450 to 526.475, unless
the context requires otherwise:
(1) 'Approved forest management practice' means and includes
site preparation, tree planting, precommercial thinning, release,
fertilization, animal damage control, insect and disease
management or such other young growth management practices that
increase wood growth as { - the State Forester shall approve or
determine proper generally with regard to any particular
applicant - } { + approved or determined to be proper with
regard to a particular applicant by the Director of the Oregon
Department of Natural Resources + }.
{ - (2) 'Board' means State Board of Forestry. - }
{ - (3) - } { + (2) + } 'Commercial forestland' means land
for which a primary use is the growing and harvesting of forest
tree species and other forest resource values.
{ - (4) - } { + (3) + } 'Eligible owner' means any private
individual, group, Indian tribe or other native group,
association, corporation or other nonpublic legal entity owning
10 to 500 acres of Oregon commercial forestland.
{ - (5) - } { + (4) + } 'Forest management plan' means an
operation plan to reach landowner objectives and assures public
benefits as they relate to producing timber and other values. It
shall include a cover map, basic forest stand description data,
treatment opportunities, landowner objectives and a schedule for
implementing the forest management plan.
{ - (6) - } { + (5) + } 'Forest management practices' means
and includes site preparation, tree planting, precommercial
thinning, release, fertilization, animal damage control, insect
and disease management and other young growth management
practices that increase wood growth.
{ - (7) - } { + (6) + } 'Industrial private forestlands'
means lands capable of producing crops of industrial wood,
greater than 10 acres and owned by other than an eligible owner.
{ - (8) - } { + (7) + } 'Industrial wood' means forest
products used to sustain a sawmill, plywood mill, pulp mill or
other forest industry related manufacturing facility.
{ - (9) - } { + (8) + } 'Landowner' means any private
individual, group, Indian tribe or other native group,
association, corporation or other legal entity, owning both the
forestland and any timber thereon.
{ - (10) - } { + (9) + } 'Nonindustrial private
forestlands' means lands capable of producing crops of industrial
wood and owned by an eligible owner.
{ - (11) 'State Forester' means the individual appointed
pursuant to ORS 526.031, or the authorized representative of the
State Forester. - }
{ - (12) - } { + (10) + } 'Timber' means wood growth,
mature or immature, growing or dead, standing or down of species
acceptable for regeneration under the Oregon Forest Practices
Act.
{ - (13) - } { + (11) + } 'Underproductive forestlands'
means commercial forestlands not meeting the minimum stocking
standards of the Oregon Forest Practices Act.
SECTION 1968. ORS 526.470 is amended to read:
526.470. (1) A state forest tree seed bank may be operated by
the { - State Forester and the State Board of Forestry - }
{ + Director of the Oregon Department of Natural Resources or
the Oregon Natural Resources Commission + } to provide forest
tree seed for the raising of forest tree seedlings suitable for
reforestation. Such tree seed bank is to provide for the research
and development, production, purchase, collection, storage, care
and maintenance of forest tree seed and for the sale of such tree
seed to private, state and other public owners of forest
nurseries or forestland.
(2) Each year the { - State Forester - } { + director + }
shall determine the costs of tree seed bank operation and shall
offer tree seed for sale to forest or nursery owners at prices
that will recover actual costs.
(3) All revenues derived from the operation of the tree seed
bank shall be { - credited to the State Forestry Department
Account and - } deposited in the State Forest Tree Seed Bank
Subaccount established in ORS 526.060.
(4) In order to develop and produce high quality forest tree
seed, the moneys deposited in the State Forest Tree Seed Bank
Subaccount may be used for research and development activities,
including establishing and maintaining seed production areas,
seed orchards or select forest trees from which seed, cuttings or
pollen may be collected. The activities described in this
subsection may be conducted independently by the { - State
Forester - } { + Director of the Oregon Department of Natural
Resources + } or in collaboration, partnership or cooperation
with private entities and public bodies as defined in ORS
174.109.
SECTION 1969. ORS 526.472 is amended to read:
526.472. (1) A state forest tree seed orchard may be operated
by the { - State Forester and the State Board of Forestry - }
{ + Director of the Oregon Department of Natural Resources or
the Oregon Natural Resources Commission + } to produce high
quality forest tree seed suitable for reforestation. The purposes
of the state forest tree seed orchard are to:
(a) Grow, care for and maintain seed orchard stock and produce
seed, pollen, cuttings and other propagules for reforestation
uses by private entities and public bodies as defined in ORS
174.109;
(b) Promote the conservation of genetic resources; and
(c) Support research and development activities for the purpose
of producing high quality, well adapted seeds.
(2) The { - State Forester - } { + director + } may enter
into cooperative cost sharing and management agreements with
private entities and public bodies as defined in ORS 174.109 to
carry out the purposes set forth in subsection (1) of this
section.
(3) Each year the { - State Forester - } { + director + }
shall determine the costs of operating the state forest tree seed
orchard and shall recover actual costs.
(4) All revenues derived from the operation of the state forest
tree seed orchard shall be { - credited to the State Forestry
Department Account and - } deposited in the State Forest Tree
Seed Orchard Subaccount established in ORS 526.060.
SECTION 1970. ORS 526.475 is amended to read:
526.475. (1) Any owner affected by a determination of the
{ - State Forester - } { + Director of the Oregon Department
of Natural Resources + } made under ORS 315.104, 318.031 and
526.450 to 526.475 may appeal to the { - State Board of
Forestry - } { + Oregon Natural Resources Commission + } under
such rules as it may adopt. An appeal to set aside any decision
of the { - board - } { + commission + } with respect to ORS
315.104 or 318.031 may be taken within 60 days of the decision to
the Oregon Tax Court in the manner provided for tax cases under
ORS chapter 305.
(2) Any owner affected by a determination of the Department of
Revenue made under ORS 315.104 or 318.031 may appeal directly to
the tax court under ORS 305.404 to 305.560.
SECTION 1971. ORS 526.475, as amended by section 8, chapter
883, Oregon Laws 2007, is amended to read:
526.475. (1) Any owner affected by a determination of the
{ - State Forester - } { + Director of the Oregon Department
of Natural Resources + } made under ORS 318.031 and 526.450 to
526.475 may appeal to the { - State Board of Forestry - }
{ + Oregon Natural Resources Commission + } under such rules as
it may adopt. An appeal to set aside any decision of the
{ - board - } { + commission + } with respect to ORS 318.031
may be taken within 60 days of the decision to the Oregon Tax
Court in the manner provided for tax cases under ORS chapter 305.
(2) Any owner affected by a determination of the Department of
Revenue made under ORS 318.031 may appeal directly to the tax
court under ORS 305.404 to 305.560.
SECTION 1972. ORS 526.490 is amended to read:
526.490. (1) It is the policy of the State of Oregon to
encourage the afforestation of idle land for the purpose of
establishing commercial forests if such afforestation is
consistent with landowner objectives. The purpose of this section
is to provide an incentive for afforestation by providing
assurance that the State of Oregon will not prohibit the
harvesting of trees planted on such lands within the first crop
rotation.
(2) As used in this section:
(a) 'Free to grow' means a stand of well-distributed trees that
has a high probability of remaining or becoming vigorous, healthy
and dominant over undesired competing vegetation.
(b) 'Parcel' has the meaning given that term in ORS 92.010.
(3) Notwithstanding ORS 527.676, 527.710 or 527.755 or any
rules promulgated thereunder, and except as provided in
subsection (4) of this section, a person who, after September 9,
1995, plants or causes to be planted a stand of timber that is
intended to become a merchantable stand of timber as defined in
ORS 321.005 on a parcel owned by the person, or a portion of such
parcel not less than five contiguous acres, shall not be
prohibited from harvesting the planted timber provided that:
(a) Prior to the time of planting, the parcel or portion
thereof has not been subject to any forest practice as defined in
ORS 527.620 since July 1, 1972; and
(b) Prior to the time of planting, the stocking of forest tree
species on the subject parcel or portion thereof is less than 25
square feet of basal area per acre.
(4) The provisions of subsection (3) of this section shall not
apply to any land or timber located within 20 feet of any large
or medium stream, or any small stream that is a fish-bearing or
domestic use stream, as defined by the { - State Board of
Forestry - } { + Oregon Natural Resources Commission + }.
(5)(a) If, within two to five years of planting under
subsection (3) of this section, the person notifies the
{ - State Forester, the State Forester - } { + Director of the
Oregon Department of Natural Resources, the director + } shall
inspect the timber and shall issue a certificate to the owner
indicating that a free to grow stand of timber has been
established under subsection (3) of this section and identifying
the location of the timber. Upon request of the owner and payment
of any applicable fee, the county clerk in the county wherein the
parcel is located shall record the certificate as specified under
ORS 205.130.
(b) A person who notifies the { - State Forester - }
{ + director + } and requests certification shall provide an
accurate plat of the parcel or portion planted under subsection
(3) of this section to the { - State Forester - }
{ + director + } as well as photographs that accurately depict
the condition of the land prior to planting.
(c) The { - State Forester - } { + director + } may, by
rule, establish a fee or schedule of fees adequate to cover such
necessary expenses incurred by the { - State Forester - }
{ + director + } in conducting inspection and certification
activities. Fees may be charged to the person requesting
certification.
(6)(a) Except as provided in subsection (3) of this section,
all forest practices conducted on the planted parcel or portion
thereof shall be subject to the provisions of ORS 527.610 to
527.770, 527.990 (1) and 527.992.
(b) No parcel or portion of such parcel shall be subject to the
provisions of subsections (3) and (5) of this section more than
once.
SECTION 1973. ORS 526.510 is amended to read:
526.510. (1) The { - State Forestry Department - }
{ + Oregon Department of Natural Resources + } shall provide
technical assistance to cities, counties, other governmental
units, nonprofit and civic organizations and other groups
interested in planting and caring for trees in communities.
Technical assistance may include, but is not limited to, the
following areas:
(a) Establishing and maintaining local urban and community
forestry programs;
(b) Developing local tree management ordinances;
(c) Developing public information programs to promote awareness
of the values and benefits of the urban forest as a resource of
the urban community;
(d) Implementing appropriate tree management and care
practices;
(e) Performing street tree inventories; and
(f) Planning and coordinating local tree planting projects.
(2) The department shall make the fullest use of cooperative
agreements, projects and resource sharing with local grassroots
organizations, community action groups, businesses, local and
state agencies, federal agencies, public and private schools,
colleges and universities in designing, developing and
implementing local programs, plans and activities.
SECTION 1974. ORS 526.515 is amended to read:
526.515. (1) The { - State Forestry Department - }
{ + Oregon Department of Natural Resources + } may receive and
disburse such gifts, grants, bequests, federal moneys and
endowments and donations of labor, material, seedlings, trees and
equipment from public and private sources for the purpose of
conducting an urban and community forestry program. In addition,
the department is authorized to charge fees for services and for
attendance at workshops and conferences and to sell various
publications and other materials that the department prepares.
(2) All revenues received under subsection (1) of this section
and any interest earned on all cash balances except federal
moneys shall be { - credited to the State Forestry Department
Account and may be expended only - } { + deposited in the
Oregon Natural Resources Fund. Moneys deposited in the fund under
this subsection are continuously appropriated to the
department + } for urban and community forestry purposes.
SECTION 1975. ORS 526.695 is amended to read:
526.695. As used in ORS 526.695 to 526.775, unless the context
otherwise requires:
(1) 'Contract' means the contract signed by the forestland
owner and the { - State Forester - } { + Director of the
Oregon Department of Natural Resources + }, acting on behalf of
the Forest Resource Trust pursuant to ORS 526.705.
(2) 'Ecosystem services' means environmental benefits arising
from the conservation and management of forestland, including,
but not limited to, fish and wildlife habitat, clean water and
air, pollination, mitigation of environmental hazards, control of
pests and diseases, carbon sequestration, avoidance of carbon
dioxide emissions and maintenance of soil productivity.
(3) 'Forestland owner' means the individual, corporation,
limited liability company, partnership, association, joint stock
company, trustee, business trust or unincorporated organization
holding fee simple ownership of land capable of producing forest
products.
(4) 'Forest products' includes, but is not limited to, trees,
logs, poles, lumber, chips or pulp that flow from investment of
the Forest Resource Trust.
(5) 'Forest Resource Trust programs' means the voluntary cost
share program established by ORS 526.703, the voluntary loan
program established by ORS 526.705 and other programs
administered by the { - State Board of Forestry - }
{ + Oregon Natural Resources Commission + } to further the
purposes of the Forest Resource Trust pursuant to ORS 526.695 to
526.775.
(6) 'Qualified private or local government forestland owner'
means a private or local government forestland owner that
qualifies for a specific Forest Resource Trust program, as
described in rules adopted by the { - board - }
{ + commission + }.
SECTION 1976. ORS 526.700 is amended to read:
526.700. (1) The Forest Resource Trust is established in the
{ - State Forestry Department - } { + Oregon Department of
Natural Resources + }. The Forest Resource Trust shall provide
funds for financial, technical and related assistance to
qualified private and local government forestland owners for
stand establishment and improved management of forestlands for
timber production as well as wildlife, water quality and other
environmental purposes.
(2) The members of the { - State Board of Forestry - }
{ + Oregon Natural Resources Commission + } shall have overall
responsibility for management of the Forest Resource Trust. The
{ - board - } { + commission + } is authorized to establish
policies and programs in addition to those created by ORS 526.695
to 526.775 to further the purposes of the trust.
(3) The { - board - } { + commission + } shall appoint an
advisory committee consisting of no more than 15 members
representing the public, nonindustrial private forestland owners,
the forest products industry, forest consultants and contractors,
the financial community, environmental and conservation
organizations and other related interests including affected
state agencies. The advisory committee shall assist the
{ - board - } { + commission + } in setting policy for the
best use and investment of funds available to the trust and
otherwise assist { - board - } { + commission + } members in
the performance of their duties as trustees.
(4) In accordance with any applicable provisions of ORS chapter
183, the { - board - } { + commission + } shall adopt rules
to carry out the duties, functions and powers of the Forest
Resource Trust and to guide implementation of the Forest Resource
Trust programs.
(5) The { - State Forester - } { + Director of the Oregon
Department of Natural Resources + } is responsible for
implementing { - board - } { + commission + } policies and
programs for the Forest Resource Trust.
SECTION 1977. ORS 526.703 is amended to read:
526.703. (1) The { - State Board of Forestry - } { + Oregon
Natural Resources Commission + } shall establish a voluntary cost
share program to ensure that the purposes of the Forest Resource
Trust are achieved. The purpose of the program is to provide
financial and other incentives for stand establishment and
improved management of nonindustrial private forestlands.
(2) In advancing moneys and providing other assistance for
stand establishment and improved forest management, the
{ - State Forester - } { + Director of the Oregon Department
of Natural Resources + } shall:
(a) Give priority, to the extent possible, to lands zoned for
forest use under county comprehensive plans and to other lands
with moderate to high probability of success for long-term stand
establishment and improved forest management activities; and
(b) Assist landowners in securing payments for ecosystem
services.
SECTION 1978. ORS 526.705 is amended to read:
526.705. (1) To carry out the duties, functions and powers of
the Forest Resource Trust, there is created a voluntary loan
program to finance establishment of stands of trees and the
improved management of qualified private and local government
forestlands.
(2) In advancing moneys and providing other assistance for
stand establishment, the { - State Board of Forestry - }
{ + Oregon Natural Resources Commission + } shall:
(a) Give priority to lands zoned for forest uses under county
comprehensive plans and to other lands with moderate to high
probability of success for long-term stand establishment and
improved forest management activities; and
(b) Assist landowners in securing payments for ecosystem
services.
(3) The { - State Board of Forestry - } { + commission + }
may, by rule, establish financial agreements for the repayment of
moneys advanced consistent with subsection (2) of this section
and including but not limited to the following, singly or in
combination:
(a) A revenue-sharing proposal that guarantees the landowner a
percentage of the receipts upon harvest after payment of harvest
and severance taxes;
(b) Financial agreements; and
(c) Repayment in full with interest if a landowner fails to get
the stand free to grow as that term is defined in the Oregon
Forest Practices Act, unless said failure is through no fault of
the landowner.
(4) The terms of repayment shall be based on considerations
that represent the best use and investment of funds including:
(a) Rates of return, as established by the { - State Board of
Forestry - } { + commission + }, that provide a reasonable
payback to the Forest Resource Trust of project costs;
(b) Measurable anticipated public benefits such as job
creation, tax revenue, increased timber supply and environmental
improvement; and
(c) The extent to which landowner contributions of money, labor
or other resources reduce the risk to the Forest Resource Trust.
(5) Participating landowners shall not be required to comply
with forest practices beyond those required by state and federal
law with the exception that planting standards for stand
establishment may be more than the required minimum.
(6) The { - State Forester - } { + Director of the Oregon
Department of Natural Resources + } is authorized, on behalf of
the Forest Resource Trust, to enter into contracts with eligible
landowners to carry out the provisions of the voluntary loan
program. The contracts may include, but are not limited to:
(a) Partial to full financing to the landowner, as specified in
rules of the { - State Board of Forestry - }
{ + commission + }, from such moneys as may be available in the
Forest Resource Trust Fund.
(b) Any obligations of the landowner for repayment of moneys
advanced including, but not limited to:
(A) Terms for sharing the revenue gained from the sales of
timber and forest products, including salvage, from the lands
enrolled under the voluntary loan program;
(B) Acknowledgment that the rights and obligations of the
landowner and the Forest Resource Trust and all of the terms of
the contract are covenants that run with the land upon sale,
lease or transfer of the land benefiting from the voluntary loan
program until all future obligations of the contract are met;
(C) Financial terms allowing the landowner to terminate the
contract;
(D) Agreement that there is no obligation to repay the moneys
advanced prior to sale of timber and forest products from the
land;
(E) Terms to protect the contract from modification unless both
parties consent to modification;
(F) Allowance for different prescriptions for stand management;
and
(G) Repayment in full with interest if the landowner fails to
meet any terms of the contract.
(c) Acknowledgment by the landowner that the { - State
Forester - } { + director + } may require a statutory lien on
the forest products.
(7) In addition to the contracts provided for in subsection (6)
of this section, the { - State Forester - } { + director + },
on behalf of the Forest Resource Trust, may require landowners to
execute security agreements in favor of the trust to secure any
repayment or other obligations of the landowner. Any security
interest required shall have priority from the date of recording
or filing.
(8)(a) The { - State Forester - } { + director + } shall
record a contract described in subsection (6) of this section
with the recording officer of the county or counties in which the
forestland is located.
(b) Upon recording, the rights and obligations of the landowner
and the Forest Resource Trust under the contract shall become
covenants that run with the land and shall be binding upon
successors and assigns.
(c) The interest of the Forest Resource Trust created by
recording the contract constitutes a purchaser's interest in real
property for purposes of ORS 93.640.
(d) A memorandum of contract must include, but is not limited
to:
(A) The date of execution of the contract;
(B) The name of each landowner of the forestland identified in
the contract;
(C) A legal description of the forestland subject to the
contract that conforms with ORS 93.600; and
(D) If the contract is secured by a lien as provided in ORS
526.695 and 526.740 to 526.775, a statement from each landowner
acknowledging the lien.
(9) As used in this section, 'eligible landowner' means a
qualified private or local government forestland owner who:
(a) Owns land that qualifies as forestland, as defined by the
{ - State Board of Forestry - } { + commission + }.
(b) Has not received an exemption from reforestation
requirements pursuant to rules adopted by the { - board - }
{ + commission + } under ORS 527.760.
SECTION 1979. ORS 526.710 is amended to read:
526.710. To assist the { - State Board of Forestry - }
{ + Oregon Natural Resources Commission + } in carrying out the
duties of the Forest Resource Trust, the { - State Forestry
Department - } { + Oregon Department of Natural Resources + }
shall:
(1) Identify potentially suitable lands, and educate the owners
of those lands on Forest Resource Trust programs.
(2) Provide technical and other management assistance to
participating landowners.
(3) Monitor compliance with Forest Resource Trust programs by
participating landowners.
(4) Encourage involvement of the landowner.
(5) Encourage the use of private contractors, consultants,
forestry extension programs, nongovernmental organizations and
landowner cooperatives.
(6) Develop project plans in cooperation with landowners that
establish clear benchmarks for compliance with terms of the plan.
(7) Release from financial obligation for any portion of the
qualified private and local government forestlands included under
Forest Resource Trust programs and irretrievably lost to insects,
disease, fire, storm, flood or other natural destruction through
no fault of the landowner.
(8) Secure provisions for access to the land by the { - State
Forester - } { + Director of the Oregon Department of Natural
Resources + }.
(9) Give consideration to { + fish and wildlife + }
conservation plans or strategies { - adopted by the State
Department of Fish and Wildlife when setting priorities for
Forest Resource Trust programs - } .
SECTION 1980. ORS 526.720 is amended to read:
526.720. The Forest Resource Trust Fund is created in the State
Treasury, separate and distinct from the General Fund. The Forest
Resource Trust Fund shall consist of all moneys received from
whatever source to carry out the duties, functions and powers of
the Forest Resource Trust. All earnings on moneys in the fund
shall be retained in the fund. All moneys in the fund are { +
continuously + } appropriated { - continuously - } to the
{ - State Forestry Department - } { + Oregon Department of
Natural Resources + } to carry out the duties, functions and
powers of the Forest Resource Trust, including { - State
Forestry Department - } administrative expenses.
SECTION 1981. ORS 526.725 is amended to read:
526.725. (1) The { - State Board of Forestry or the State
Forester - } { + Director of the Oregon Department of Natural
Resources or the Oregon Natural Resources Commission + } may
enter into agreements with private, governmental or other
organizations and may accept contributions, gifts or grants from
any source to carry out the duties, functions and powers of the
Forest Resource Trust. All moneys received by the { - board or
the State Forester - } { + director or the commission + }
pursuant to this section shall be deposited in the Forest
Resource Trust Fund.
(2) The { - board - } { + director or commission + } may
acquire, on behalf of the Forest Resource Trust, through
exchange, lease or purchase, land only to the extent necessary to
carry out the duties, functions and powers of the trust.
(3) Agreements with private, governmental or other
organizations under subsection (1) of this section may specify
the terms under which funds are invested and benefits accrue to
the contributing party to the extent the agreement is consistent
with the provisions of ORS 526.695 to 526.775.
(4) The { - State Forester - } { + director + } may, on
behalf of the Forest Resource Trust, market, register, transfer
or sell forestry carbon offsets attributable to the lands
enrolled in the stand establishment program under ORS 526.705.
Prices for the transfer or sale of forestry carbon offsets may be
negotiated but must be at or greater than fair market value.
(5) Nothing in ORS 526.695 to 526.775 is intended to create an
enforceable trust on any agency or officer of the State of
Oregon.
SECTION 1982. ORS 526.745 is amended to read:
526.745. (1) The { - State Forester - } { + Director of the
Oregon Department of Natural Resources + } may file a notice of
lien under ORS 526.740 anytime after the contract is executed.
(2) The { - State Forester - } { + director + } shall file
the notice of lien with the recording officer of the county or
counties where the forestland is located. The notice shall be in
writing verified by the { - State Forester - }
{ + director + } and shall contain:
(a) The name of each owner of the forestland identified in the
contract;
(b) A legal description of the forestland identified in the
contract in conformance with ORS 93.600;
(c) A description of the forest products to be covered by the
lien;
(d) A statement that the lien includes a lien on accounts
receivable from the sale of any forest products covered by the
lien and that the lien on forest products and accounts receivable
shall have priority as of the date of filing of the notice of
lien under this section; and
(e) A statement of the amount of funds to be paid under the
contract.
(3) Within 10 days after the { - State Forester - }
{ + director + } files the notice of lien under this section,
the { - State Forester - } { + director + } shall send a copy
of the notice to each of the following persons whose interest in
the forestland referred to in subsection (2)(a) of this section
is of record as of the date the { - State Forester - }
{ + director + } files the notice of lien with the county
recording officer:
(a) Each seller on a land sale contract covering all or any
part of the forestland referred to in subsection (2)(a) of this
section;
(b) Each mortgagee upon a mortgage covering all or part of the
forestland referred to in subsection (2)(a) of this section; and
(c) Each beneficiary of a trust deed covering all or part of
the forestland referred to in subsection (2)(a) of this section.
SECTION 1983. ORS 526.765 is amended to read:
526.765. (1) When the { - State Forester - } { + Director
of the Oregon Department of Natural Resources + } receives full
payment of funds described in the notice of lien filed under ORS
526.745, or if the lien is released, the { - State Forester - }
{ + director + } shall file with the recording officer of the
county in which the claim is recorded a certificate declaring
that full payment has been received, or that the lien has been
released, and that the claim of lien is discharged. The
certificate shall include the name of the forestland owner, the
date of filing of the notice of lien under ORS 526.745 and a
legal description of the land affected in conformance with ORS
93.600.
(2) Upon receiving the certificate, the recording officer shall
enter it in full length in the book kept to record such liens.
SECTION 1984. ORS 526.770 is amended to read:
526.770. (1) No harvest or removal of forest products on
forestland covered by a contract between the forest landowner and
the Forest Resource Trust shall occur without the landowner or
the timber owner first notifying the { - State Forester - }
{ + Director of the Oregon Department of Natural Resources + }
in writing, on forms prepared by the { - State Forester - }
{ + director + }, of intent to harvest or remove forest
products. Notice shall be made in the same manner as notice
provided under ORS 527.670 (6).
(2) The notification shall specify where and when the harvest
or removal of forest products will take place, the nature of the
harvest or removal of forest products and where and to whom the
forest products will be sold or delivered and shall include maps
or other information as required by the { - State Forester - }
{ + director + }. Upon receipt of notification pursuant to
subsection (1) of this section, the { - State Forester - }
{ + director + } shall notify the landowner, and any person to
whom the forest products will be sold or delivered, of the
repayment obligation specified in any contract between the forest
landowner and the { - State Forester - } { + director + }.
The landowner shall make payment to the { - State Forester - }
{ + director + }. Such payment shall be deposited in the Forest
Resource Trust Fund. If payment is not made within 60 days of
harvest or removal of forest products, the lien shall be
delinquent and may be foreclosed in the manner described in ORS
526.755.
SECTION 1985. ORS 526.775 is amended to read:
526.775. Notwithstanding ORS 526.695 and 526.740 to 526.775, if
the forest landowner and the { - State Forester - }
{ + Director of the Oregon Department of Natural Resources + }
entered into a contract as provided in ORS 526.705 and the
contract is terminated or breached, and there are no forest
products or accounts receivable subject to the lien created under
ORS 526.740, any judgment entered against the landowner for
breach or termination of the contract may be executed on any
property of the landowner.
SECTION 1986. ORS 526.780 is amended to read:
526.780. (1) The { - State Forester - } { + Director of the
Oregon Department of Natural Resources + } may enter into
agreements with nonfederal forest landowners as a means to
market, register, transfer or sell forestry carbon offsets on
behalf of the landowners to provide a stewardship incentive for
nonfederal forestlands.
(2) The { - State Forester - } { + director + } may enter
into an agreement described in this section if all of the
following criteria are met:
(a) The agreement must ensure continuous management of the
nonfederal forestlands at a standard that, in the judgment of the
{ - State Forester - } { + director + }, would not occur in
the absence of the agreement.
(b) Any forestry carbon offsets managed by the agreement must
be attributable to the subject nonfederal forestland as
determined by the forestry carbon offset accounting system
established in ORS 526.783.
(c) Prices for the transfer or sale of forestry carbon offsets
may be negotiated on behalf of the nonfederal forest landowner
and must be at or greater than fair market value.
(d) The agreement must provide for the following distribution
of proceeds from the transfer or sale of forest carbon offsets
attributable to the subject nonfederal forestland:
(A) Not less than 50 percent to the nonfederal forest
landowner;
(B) Not more than 25 percent to the { - State Forester - }
{ + Oregon Department of Natural Resources + } to fund programs
providing coordinated technical, financial or management planning
assistance to nonindustrial private forest landowners; and
(C) Not more than 25 percent to the { - State Forester - }
{ + department + } to fund administration of the forestry
carbon offset program.
(3) All revenues received and any interest earned on moneys
distributed to the { - State Forester - } { + department + }
under subsection (2)(d)(B) and (C) of this section shall be
{ - credited to the State Forestry Department Account and may be
expended only - } { + deposited in the Oregon Natural Resources
Fund. Moneys deposited in the fund under this subsection are
continuously appropriated to the department + } for the purposes
stated in subsection (2)(d)(B) and (C) of this section.
(4) A person or governmental agency may create a forestry
carbon offset by performing, financing or otherwise causing one
or more of the following activities:
(a) Afforestation or reforestation of underproducing lands that
are not subject to required reforestation under the Oregon Forest
Practices Act;
(b) Forest management activities not required under law
existing at the point of creation of the forestry carbon offset,
including but not limited to the following practices:
(A) Stand density control treatments in overstocked,
underproducing stands of timber;
(B) Silvicultural practices that increase forest stand biomass,
including but not limited to structure based management, variable
retention, uneven age management, longer rotation ages and no
harvest reserves;
(C) Expanded riparian buffers and other leave areas; and
(D) Deferred harvest rotations past 50 years or the age of
economic maturity, whichever is longer; and
(c) Other activities as defined by rule by the { - State
Board of Forestry - } { + Oregon Natural Resources
Commission + }.
SECTION 1987. ORS 526.783 is amended to read:
526.783. As a means of consistently reporting forestry carbon
offsets created through programs established under ORS 526.725,
526.780 to 526.789, 530.050 or 530.500, the { - State
Forester - } { + Director of the Oregon Department of Natural
Resources + } shall develop a forestry carbon offset accounting
system for the registration, transfer or sale of forestry carbon
offsets. The forestry carbon offset accounting system shall:
(1) Use accepted principles and standards relating to creating,
measuring, monitoring, marketing, verifying, registering,
transferring and selling carbon offsets used as mitigation for
carbon dioxide emissions; and
(2) Be consistent with any rules adopted by the { - State
Board of Forestry - } { + Oregon Natural Resources
Commission + } under ORS 526.786.
SECTION 1988. ORS 526.786 is amended to read:
526.786. (1) The { - State Board of Forestry - } { + Oregon
Natural Resources Commission + } may develop administrative rules
that define principles and standards relating to the creation,
measurement, accounting, marketing, verifying, registering,
transferring and selling of forestry carbon offsets from
nonfederal forestlands.
(2) Rules adopted by the { - board - } { + commission + }
under this section shall set standards to ensure that in order to
be marketed, registered, transferred or sold, a forestry carbon
offset must be created as a result of forest management
activities that:
(a) Have the effect of increasing carbon storage on forestlands
as measured by a forestry carbon offset accounting system;
(b) Would not otherwise occur but for the carbon storage
objective; and
(c) Provide environmental, social and economic benefits for
Oregon and its { - citizens - } { + residents + }, including
but not limited to, protection or enhancement of long term timber
supplies, native fish and wildlife habitat and water quality.
(3) Rules adopted by the { - board - } { + commission + }
under this section shall establish principles to ensure that the
forestry carbon offset accounting system shall:
(a) Account for relevant sources of carbon dioxide emission
debits and credits for carbon storage or sequestration;
(b) Account for the duration and permanence of the carbon
dioxide storage or emission reductions;
(c) Include provisions for establishing the appropriate
baseline for projects, practices, rotation ages, harvest
schedules and ownership from which measured carbon dioxide
emission debits, and credits for carbon storage or sequestration
are made;
(d) Account for other relevant and measurable greenhouse gas
consequences, specifically credits and debits expressed as a
carbon dioxide emissions equivalent, when establishing baselines
or otherwise as appropriate;
(e) Account for the specific forest management practices used
on-site and include provisions for monitoring carbon dioxide
emission debits and credits for carbon storage or sequestration,
from the implementation of specific practices;
(f) Account for continuing carbon dioxide emission debits, and
credits for carbon storage or sequestration, based on the end
product use of harvested biomass;
(g) Account for environmental, social and economic benefits of
forestry carbon offsets and ensure that practices with
unsustainable, long term consequences are not used to create
forestry carbon offsets;
(h) Allow for public access to information in monitoring
reports; and
(i) Encourage third-party verification of forestry carbon
offsets.
(4) Rules adopted by the { - board - } { + commission + }
under this section may address qualifications for persons and
agencies that provide third-party verification and registration
of forestry carbon offsets.
(5) Rules adopted by the { - board - } { + commission + }
under this section shall be developed with the assistance of an
advisory committee appointed by the { - board - }
{ + commission + }. The advisory committee shall consist of at
least nine persons and shall contain:
(a) Persons from businesses, governmental agencies and
nongovernmental organizations with knowledge and experience in
the accounting of greenhouse gas emissions, sequestration and
storage;
(b) At least one person from a nongovernmental forestry
conservation organization;
(c) At least one nonindustrial private forest landowner or a
representative of an organization that represents nonindustrial
private forest landowners;
(d) One representative of the State Department of Energy;
(e) { - One representative of the State Department of Fish
and Wildlife, or a designee of the State Department of Fish and
Wildlife - } { + One representative of the Oregon Department of
Natural Resources who is well informed on the fish and wildlife
laws of this state + };
(f) One representative of the Department of Environmental
Quality, or a designee of the Department of Environmental
Quality;
(g) At least one representative from a qualified organization,
as defined in ORS 469.503; and
(h) At least one representative from the { - State Forestry
Department - } { + Oregon Department of Natural Resources + }
who shall serve as the secretary to the advisory committee.
SECTION 1989. ORS 526.789 is amended to read:
526.789. Nothing in ORS 526.005, 526.725, 526.780 to 526.789,
530.050 or 530.500 shall prohibit any person or governmental
agency from marketing, selling or transferring forestry carbon
offsets independently from the { - State Forester - } program
established under ORS 526.725, 526.780 to 526.789, 530.050 or
530.500. Rules adopted by the { - State Board of Forestry - }
{ + Oregon Natural Resources Commission + } pursuant to ORS
526.786 may not prohibit any person from marketing, selling or
transferring forestry carbon offsets using principles and
standards different than those adopted by the { - board - }
{ + commission + }.
SECTION 1990. ORS 526.900 is amended to read:
526.900. (1) { - The State Forestry Department and - } The
State Department of Agriculture { + and the Oregon Department of
Natural Resources + } shall, in consultation with relevant state
agencies and other public or private organizations, review state
statutes, rules, policies and programs that affect landowner
decisions to implement conservation strategies.
(2) The review conducted under subsection (1) of this section
shall include:
(a) Establishing a statewide strategy for the implementation
and coordination of incentives, regulatory disincentives,
expedited permit processes and related taxes.
(b) The development of a stewardship agreement program for
rural lands that establishes a baseline management standard for
landowners and a voluntary higher standard that provides natural
resource benefits and regulatory certainty for landowners.
SECTION 1991. ORS 526.905 is amended to read:
526.905. (1) Pursuant to its authority to improve the efficient
and effective use of state resources, the Oregon Department of
Administrative Services shall coordinate with the
{ - State Department of Fish and Wildlife, the State Parks and
Recreation Department, the State Forestry Department, the
Department of State Lands and any other state agency that has
oversight responsibilities for state forestlands - } { + Oregon
Department of Natural Resources + } to adopt forest management
plans or policies that:
(a) Establish forest health programs and management strategies
designed to reduce the risk of catastrophic loss of forest
resources from disease and insect infestation.
(b) Establish goals and strategies for managing forest fuel
accumulation in order to reduce the risk of catastrophic fires in
areas historically subject to frequent, periodic fires.
(2) { - To the extent that a state agency with oversight
responsibilities for state forestlands has, as of January 1,
2004, policies, approved forest management plans or other
strategies designed to address forest health and forest fuels
management, those policies, plans and strategies - }
{ + Existing plans and strategies designed to address forest
health and forest fuels management + } may be incorporated into
the plans and policies developed by the Oregon Department of
Administrative Services.
(3) The Oregon Department of Administrative Services may
develop forest fuel reduction and forest health restoration
projects that may be implemented by { - state agencies - }
{ + the Oregon Department of Natural Resources + }. Such
projects may include procedures for:
(a) Identifying forests that are at high risk of loss due to
fuel accumulation, disease or insect infestation.
(b) Cooperating with local governments to identify locations
where the urban-forest interface poses the greatest risk of
contributing to damage or loss during a fire.
(c) Establishing priority areas for the projects due to
natural, economic or scenic values.
SECTION 1992. ORS 526.992 is amended to read:
526.992. (1) A person who, with willful disregard for the
prohibitions contained in ORS 526.801 to 526.831 against
exporting public timber, exported or caused to be exported
unprocessed timber originating from public lands in violation of
this chapter is guilty of a Class C felony and may be assessed a
civil penalty not to exceed $500,000 for each violation or three
times the gross value of the unprocessed timber involved in the
violation, whichever amount is greater.
(2) If the agency concerned finds, on the record and after an
opportunity for a hearing, that a person has violated any
provision of ORS 526.801 to 526.831 or any rule issued pursuant
thereto relating to lands which the agency administers
(notwithstanding that such violation may not have caused the
export of unprocessed public timber in violation of this
chapter), such agency may:
(a) Assess against such person a civil penalty not more than
$75,000 for each violation if it is determined that the violation
was casual or involuntary.
(b) Assess against such person a civil penalty not more than
$500,000 or three times the gross value of the unprocessed timber
involved in the violation, whichever amount is greater, if it is
determined that the person committed such violation willfully.
Any person who willfully commits such a violation is guilty of a
Class C felony.
(3) Any civil penalty imposed under this section shall become
due and payable when the person incurring the penalty receives a
notice in writing of the imposition of the penalty. The notice
may be personally served on the person incurring the penalty or
may be sent by registered or certified mail.
(4) The person incurring the penalty shall have 20 days from
the date of receiving the notice to make written application for
a hearing.
(5) Any person who makes application as provided for in
subsection (4) of this section shall be entitled to a hearing.
The hearing shall be conducted as a contested case hearing
pursuant to the applicable provisions of ORS 183.413 to 183.470.
(6) Judicial review of an order made after a hearing under this
section shall be as provided in ORS 183.480 to 183.497 for
judicial review of contested cases.
(7) When an order assessing a civil penalty under this section
becomes final by operation of law or on appeal, and the amount of
penalty is not paid within 10 days after the order becomes final,
the order 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 penalty and the amount of the penalty in the
County Clerk Lien Record.
(8) All moneys recovered pursuant to this section shall be
{ - paid into the State Forestry Department Account and may be
used only to pay the expenses of administration, investigation
and enforcement of ORS 526.801 to 526.831 by the State Forester
or any law enforcement agency. - } { + deposited in the Oregon
Natural Resources Fund and are continuously appropriated to the
Oregon Department of Natural Resources for purposes related to
the administration, investigation and enforcement of ORS 526.801
to 526.831. + }
SECTION 1993. ORS 527.260 is amended to read:
527.260. (1) No person shall willfully and unlawfully:
(a) Bore or cut any forest tree belonging to another for the
purpose of extracting pitch;
(b) Cut, injure or deface any such tree for the purpose of
taking any part of it; or
(c) Injure or destroy any such tree.
(2) The { - State Forester - } { + Director of the Oregon
Department of Natural Resources + }, with the consent of the
owner of the land, shall issue permits for the extraction of
pitch from forest trees. The terms of the permits shall clearly
describe the area to which the extraction shall be confined and
state the precautions necessary, in the judgment of the
{ - State Forester - } { + director + }, to be taken by the
permittee, so that the extraction will not result in an increased
fire hazard to life and adjoining property.
(3) No person shall:
(a) Bore or cut any forest tree for the purpose of extracting
pitch without having first obtained a permit to do so; or
(b) Willfully or negligently fail to comply with the terms of
the permit.
SECTION 1994. ORS 527.310 is amended to read:
527.310. As used in and for the purposes of ORS 527.310 to
527.370:
(1) 'Control' means reduction of resource losses or pest
occurrences to an acceptable level by direct and immediate
application of effective prevention, suppression or eradication
strategies, or any combination thereof.
(2) 'Eradication' means the implementation of strategies
through host or pest destruction or removal, or by the use of
pesticides, to contain or completely eliminate exotic pests in a
specific area, or both.
(3) 'Exotic' means any pest that has been accidentally or
deliberately introduced into an area where it does not naturally
occur.
(4) 'Forestland' means any nonfederal land { - which - }
{ + that + } has enough timber or forest growths, standing or
down, to constitute, in the judgment of the { - State Board of
Forestry - } { + Oregon Natural Resources Commission + },
forest pests of a nature to be harmful, detrimental and injurious
to the management objectives for the site.
(5) 'Integrated pest management' means a coordinated
decision-making process that utilizes the most appropriate of all
reasonably available means, tactics or strategies blended
together to minimize the impact of forest pests in an
environmentally and economically sound manner to meet site
specific management objectives.
(6) 'Native' means any pest that is indigenous or naturally
occurring in a particular area.
(7) 'Owner' means any person owning nonfederal forestlands or
timber as shown on the latest records of the tax collector of the
county in which the forestlands or timber is situated. Where
timber is owned entirely separate and apart from the land whereon
it grows or is situated, 'owner' means any person owning such
timber as shown on the latest records of the tax collector of the
county in which the timber is situated.
(8) 'Pest' means any forest insect or disease which causes or
may cause damage that prevents or interferes with management
objectives in a specific area.
(9) 'Pesticide' has the meaning given that term in ORS 634.006.
(10) 'Prevention' means the implementation of strategies
designed to minimize the impact of a pest before an outbreak
occurs, including but not limited to, release or enhancement of
natural enemies and silvicultural activities to increase tree
vigor or otherwise reduce tree susceptibility to pest damage. '
Prevention' requires the incorporation of integrated pest
management into overall forest resource management in order to
create ecological conditions unfavorable for the reproduction or
survival of pest organisms.
(11) 'Strategies' may include, but are not limited to, physical
and biological methods and application of pesticides.
(12) 'Suppression' means the implementation of intervention
strategies designed to reduce native pest populations to
acceptable levels necessary to meet forest resource management
objectives in a specified area.
SECTION 1995. ORS 527.321 is amended to read:
527.321. The { - State Forester - } { + Director of the
Oregon Department of Natural Resources + } shall implement the
integrated pest management process as provided in ORS 527.315 on
{ - department-managed - } lands { + managed by the Oregon
Department of Natural Resources + } and encourage the process on
other nonfederal lands by setting examples on department lands
and through training workshops, demonstration areas and on-site
technical advice.
SECTION 1996. ORS 527.335 is amended to read:
527.335. (1) The { - State Forester - } { + Director of the
Oregon Department of Natural Resources + } shall conduct surveys
and evaluations on nonfederal forestlands to determine the
presence, extent, trend and impact of native and exotic pests, as
well as overall forest health monitoring. In so doing, the
{ - forester or representatives of the forester - }
{ + director or authorized representative of the director + }
may go upon privately owned lands with permission of the
respective owners thereof, and should any owner withhold such
permission and the { - forester - } { + director + } believes
an emergency exists, the { - forester - } { + director + }
may petition
{ - that - } { + the + } circuit court of this state having
jurisdiction over the lands involved for a warrant authorizing
the { - forester or representatives of the forester - }
{ + director or the authorized representative of the
director + } to go upon such lands. Upon petition being made the
court shall forthwith summarily determine whether or not such
emergency exists, and if determining such emergency exists,
immediately issue a warrant authorizing the
{ - forester or representatives of the forester - }
{ + director or authorized representative of the director + } to
go upon such lands for the purposes of this section.
(2) The { - State Forester - } { + director + } may
cooperate with the United States or agencies thereof, other
agencies of the state, county or municipal governments, agencies
of other states or other public or private organizations or
individuals and may accept such funds, equipment, supplies or
services from cooperators and others as it may deem appropriate
for the purposes of subsections (1) and (4) of this section.
(3) The { - State Forester - } { + director + } is
authorized to enter into contracts for selected services or
accept moneys from private and public sources for the purposes
stated in subsections (1) and (4) of this section; provided,
however, that such moneys shall be
{ - placed in the State Forestry Department Account and shall
be continuously appropriated for such purposes - }
{ + deposited in the Oregon Natural Resources Fund. Moneys
deposited in the fund under this subsection are continuously
appropriated to the Oregon Department of Natural Resources for
the purposes stated in subsections (1) and (4) of this
section + }.
(4) The { - State Forester - } { + director + } shall also
provide on-site technical advice regarding insect and disease
management to nonfederal land owners who request such services.
SECTION 1997. ORS 527.346 is amended to read:
527.346. (1) Whenever the { - State Forester determines,
using criteria approved by the State Board of Forestry, - }
{ + Director of the Oregon Department of Natural Resources
determines, using criteria approved by the Oregon Natural
Resources Commission, + } that owners are unable to take action
against a pest that is threatening Oregon's economic, social and
environmental well-being, the { - State Forester - }
{ + director + } shall, using funds appropriated by the
Legislative Assembly, declare a control district and implement
the appropriate strategy.
(2) The { - State Forester - } { + director + } shall,
within 15 days after receiving state funds, notify in writing all
owners of forestlands within the control district of the declared
control project. The notice shall be served by return receipt
mail addressed to the last-known address of the owner. In
addition, there shall be published an article describing the
nature of the control district, including a legal description of
the area and vicinity map, at least once a week for two
consecutive weeks in a newspaper having a general circulation in
the area in which the control district is situated. Other methods
of notification may be used in the future as new technology
becomes available.
SECTION 1998. ORS 527.360 is amended to read:
527.360. Upon completion of any work authorized and performed
under the provisions of ORS 527.346, the { - State Forester - }
{ + Director of the Oregon Department of Natural Resources + }
shall prepare a certified statement of the expenses necessarily
incurred in performing the work. The state shall assist in the
payment of control costs from funds available for that purpose.
The balance of the expenses, after deducting the sum of such
amounts as may be contributed by the state, the federal
government or any other agencies or persons to defray control
costs, shall constitute a charge against the forestlands or
timber involved and shall be collected in the same manner as
forest patrol assessments under the provisions of ORS chapter
477.
SECTION 1999. ORS 527.370 is amended to read:
527.370. All moneys collected under ORS 527.335 and 527.346,
together with such moneys as have been and may be appropriated by
the legislature for the purposes of ORS 527.310 to 527.370, and
with such moneys as may be contributed by the federal government
or any agencies or persons, shall be { - placed into the State
Forestry Department Account. - } { + deposited in the Oregon
Natural Resources Fund. Moneys deposited in the fund under this
section are continuously appropriated to the Oregon Department of
Natural Resources for the purpose of carrying out the duties,
functions and powers of the department as prescribed by section 1
(10) and (11) of this 2011 Act. + }
SECTION 2000. ORS 527.620 is amended to read:
527.620. As used in ORS 527.610 to 527.770, 527.990 and
527.992:
{ - (1) 'Board' means the State Board of Forestry. - }
{ - (2) - } { + (1) + } 'Cumulative effects' means the
impact on the environment which results from the incremental
impact of the forest practice when added to other past, present
and reasonably foreseeable future forest practices regardless of
what governmental agency or person undertakes such other actions.
{ - (3) - } { + (2) + } 'DBH' means the diameter at breast
height which is measured as the width of a standing tree at four
and one-half feet above the ground, on the uphill side.
{ - (4) - } { + (3) + } 'Edge of the roadway' means:
(a) For interstate highways, the fence.
(b) For all other state highways, the outermost edge of
pavement, or if unpaved, the edge of the shoulder.
{ - (5) - } { + (4) + } 'Forest practice' means any
operation conducted on or pertaining to forestland, including but
not limited to:
(a) Reforestation of forestland;
(b) Road construction and maintenance;
(c) Harvesting of forest tree species;
(d) Application of chemicals; and
(e) Disposal of slash.
{ - (6) - } { + (5) + } 'Forest tree species' means any
tree species capable of producing logs, fiber or other wood
materials suitable for the production of lumber, sheeting, pulp,
firewood or other commercial forest products except trees grown
to be Christmas trees as defined in ORS 571.505 on land used
solely for the production of Christmas trees.
{ - (7) - } { + (6) + } 'Forestland' means land that is
used for the growing and harvesting of forest tree species,
regardless of how the land is zoned or taxed or how any state or
local statutes, ordinances, rules or regulations are applied.
{ - (8) - } { + (7) + } 'Harvest type 1' means an operation
that requires reforestation but does not require wildlife leave
trees. A harvest type 1 is an operation that leaves a combined
stocking level of free to grow seedlings, saplings, poles and
larger trees that is less than the stocking level established by
rule of the { - board - } { + Oregon Natural Resources
Commission + } that represents adequate utilization of the
productivity of the site.
{ - (9) - } { + (8) + } 'Harvest type 2' means an operation
that requires wildlife leave trees but does not require
reforestation. A harvest type 2 does not require reforestation
because it has an adequate combined stocking of free to grow
seedlings, saplings, poles and larger trees, but leaves:
(a) On Cubic Foot Site Class I, II or III, fewer than 50
11-inch DBH trees or less than an equivalent basal area in larger
trees, per acre;
(b) On Cubic Foot Site Class IV or V, fewer than 30 11-inch DBH
trees or less than an equivalent basal area in larger trees, per
acre; or
(c) On Cubic Foot Site Class VI, fewer than 15 11-inch DBH
trees or less than an equivalent basal area in larger trees, per
acre.
{ - (10) - } { + (9) + } 'Harvest type 3' means an
operation that requires reforestation and requires wildlife leave
trees. This represents a level of stocking below which the size
of operations is limited under ORS 527.740 and 527.750.
{ - (11) - } { + (10) + } 'Landowner' means any individual,
combination of individuals, partnership, corporation or
association of whatever nature that holds an ownership interest
in forestland, including the state and any political subdivision
thereof.
{ - (12) - } { + (11) + } 'Operation' means any commercial
activity relating to the establishment, management or harvest of
forest tree species except as provided by the following:
(a) The establishment, management or harvest of Christmas
trees, as defined in ORS 571.505, on land used solely for the
production of Christmas trees.
(b) The establishment, management or harvest of hardwood
timber, including but not limited to hybrid cottonwood, that is:
(A) Grown on land that has been prepared by intensive
cultivation methods and that is cleared of competing vegetation
for at least three years after tree planting;
(B) Of a species marketable as fiber for inclusion in the
furnish for manufacturing paper products;
(C) Harvested on a rotation cycle that is 12 or fewer years
after planting; and
(D) Subject to intensive agricultural practices such as
fertilization, cultivation, irrigation, insect control and
disease control.
(c) The establishment, management or harvest of trees actively
farmed or cultured for the production of agricultural tree crops,
including nuts, fruits, seeds and nursery stock.
(d) The establishment, management or harvest of ornamental,
street or park trees within an urbanized area, as that term is
defined in ORS 221.010.
(e) The management or harvest of juniper species conducted in a
unit of less than 120 contiguous acres within a single ownership.
(f) The establishment or management of trees intended to
mitigate the effects of agricultural practices on the environment
or fish and wildlife resources, such as trees that are
established or managed for windbreaks, riparian filters or shade
strips immediately adjacent to actively farmed lands.
(g) The development of an approved land use change after timber
harvest activities have been completed and land use conversion
activities have commenced.
{ - (13) - } { + (12) + } 'Operator' means any person,
including a landowner or timber owner, who conducts an operation.
{ - (14) - } { + (13) + } 'Single ownership' means
ownership by an individual, partnership, corporation, limited
liability company, trust, holding company or other business
entity, including the state or any political subdivision thereof.
Single ownership includes ownership held under different names or
titles where the same individual or individuals, or their heirs
or assigns, are shareholders (other than those of public
corporations whose stock is traded on the open market), partners,
business trustees or officers, or otherwise have an interest in
or are associated with each property.
{ - (15) 'State Forester' means the State Forester or the
duly authorized representative of the State Forester. - }
{ - (16) - } { + (14) + } 'Suitable hardwood seedlings'
means any hardwood seedling that will eventually yield logs or
fiber, or both, sufficient in size and quality for the production
of lumber, plywood, pulp or other forest products.
{ - (17) - } { + (15) + } 'Timber owner' means any
individual, combination of individuals, partnership, corporation
or association of whatever nature, other than a landowner, that
holds an ownership interest in any forest tree species on
forestland.
{ - (18) - } { + (16) + } 'Visually sensitive corridor'
means forestland extending outward 150 feet, measured on the
slope, from the outermost edge of the roadway of a scenic highway
referred to in ORS 527.755, along both sides for the full length
of the highway.
{ - (19) - } { + (17) + } 'Wildlife leave trees' means
trees or snags required to be retained as described in ORS
527.676 (1).
{ - (20) - } { + (18) + } 'Written plan' means a document
prepared by an operator, timber owner or landowner that describes
how the operation is planned to be conducted.
SECTION 2001. ORS 527.630 is amended to read:
527.630. (1) Forests make a vital contribution to Oregon by
providing jobs, products, tax base and other social and economic
benefits, by helping to maintain forest tree species, soil, air
and water resources and by providing a habitat for wildlife and
aquatic life. Therefore, it is declared to be the public policy
of the State of Oregon to encourage economically efficient forest
practices that ensure the continuous growing and harvesting of
forest tree species and the maintenance of forestland for such
purposes as the leading use on privately owned land, consistent
with sound management of soil, air, water, fish and wildlife
resources and scenic resources within visually sensitive
corridors as provided in ORS 527.755 and to ensure the continuous
benefits of those resources for future generations of Oregonians.
(2) It is recognized that operations on forestland are already
subject to other laws and to regulations of other agencies which
deal primarily with consequences of such operations rather than
the manner in which operations are conducted. It is further
recognized that it is essential to avoid uncertainty and
confusion in enforcement and implementation of such laws and
regulations and in planning and carrying out operations on
forestlands.
(3) To encourage forest practices implementing the policy of
ORS 527.610 to 527.770 and 527.990 and 527.992, it is declared to
be in the public interest to vest in the { - State Board of
Forestry - } { + Oregon Natural Resources Commission + }
exclusive authority to develop and enforce statewide and regional
rules pursuant to ORS 527.710 and to coordinate with other state
agencies and local governments which are concerned with the
forest environment.
(4) The { - board - } { + commission + } may adopt and
enforce rules addressing scenic considerations only in accordance
with ORS 527.755.
(5) The { - board - } { + commission + } shall adopt and
enforce forest practice rules to reduce the risk of serious
bodily injury or death from a rapidly moving landslide only in
accordance with ORS 527.710 (10). As used in this subsection,
'rapidly moving landslide' has the meaning given in ORS 195.250.
(6) The State of Oregon should provide a stable regulatory
environment to encourage investment in private forestlands.
SECTION 2002. ORS 527.640 is amended to read:
527.640. The { - State Board of Forestry - } { + Oregon
Natural Resources Commission + } shall establish a number of
forest regions, but not less than three, necessary to achieve the
purposes described in ORS 527.630.
SECTION 2003. ORS 527.650 is amended to read:
527.650. (1) The { - State Board of Forestry - } { + Oregon
Natural Resources Commission + } shall establish a forest
practice committee for each forest region established pursuant to
ORS 527.640. Each such committee shall consist of nine members, a
majority of whom must reside in the region. Members of each
committee shall be qualified by education or experience in
natural resource management and not less than two-thirds of the
members of each committee shall be private landowners, private
timber owners or authorized representatives of such landowners or
timber owners who regularly engage in operations.
(2) Members of forest practice committees shall be appointed by
the { - board - } { + commission + } for three-year terms. If
there is a vacancy for any cause, the { - board - }
{ + commission + } shall make an appointment to become
immediately effective for the unexpired term. Each such committee
shall select a chairperson from among its members. A staff member
of the { - State Forestry Department shall be designated by the
State Forester - } { + Oregon Department of Natural Resources
shall be designated by the Director of the Oregon Department of
Natural Resources + } to serve as the secretary, without voting
power, for each such committee.
SECTION 2004. ORS 527.660 is amended to read:
527.660. Each forest practice committee shall review proposed
forest practice rules in order to assist the { - State Board of
Forestry - } { + Oregon Natural Resources Commission + } in
developing rules appropriate to the forest conditions within its
region. Committee recommendations are advisory only and the
committees need not be consulted prior to the adoption of any
forest practice rule.
SECTION 2005. ORS 527.670 is amended to read:
527.670. (1) The { - State Board of Forestry - } { + Oregon
Natural Resources Commission + } shall designate the types of
operations for which notice shall be required under this section.
(2) The { - board - } { + commission + } shall determine by
rule what types of operations require a written plan.
(3) The { - board's - } { + commission's + } determination
under subsection (2) of this section shall require a written plan
for operations:
(a) Within one hundred feet of a stream determined by the
{ - State Forester - } { + Director of the Oregon Department
of Natural Resources + } to be used by fish or for domestic use,
unless the
{ - board - } { + commission + }, by rule, provides that a
written plan is not required because the proposed operation will
be conducted according to a general vegetation retention
prescription described in administrative rule, or unless the
operation will be conducted pursuant to a stewardship agreement
entered into under ORS 541.423; or
(b) Within three hundred feet of a resource site inventoried
pursuant to ORS 527.710 (3)(a) unless the operation will be
conducted pursuant to a stewardship agreement entered into under
ORS 541.423 and is consistent with the purposes and policies of
any relevant Safe Harbor Agreements or Candidate Conservation
Agreements entered into between the State of Oregon and agencies
of the United States Government, pursuant to the federal
Endangered Species Act of 1973 (P.L. 93-205, 16 U.S.C. 1531 et
seq.) and federal regulations.
(4) The distances set forth in subsection (3)(a) and (b) of
this section are solely for the purpose of defining an area
within which a hearing may be requested under ORS 527.700 and not
the area to be protected by the { - board's - }
{ + commission's + } rules adopted pursuant to ORS 527.710
(3)(c).
(5) For the purpose of determining the distances set forth in
subsection (3)(a) and (b) of this section 'site' means the
specific resource site and not any additional buffer area.
(6) An operator, timber owner or landowner, before commencing
an operation, shall notify the { - State Forester - }
{ + director + }. The notification shall be on forms provided by
the { - State Forester - } { + director + } and shall include
the name and address of the operator, timber owner and landowner,
the legal description of the operating area, and any other
information considered by the { - State Forester - }
{ + director + } to be necessary for the administration of the
rules promulgated by the { - board - } { + commission + }
pursuant to ORS 527.710. Promptly upon receipt of such notice,
the { - State Forester - } { + director + } shall send a copy
of the notice to whichever of the operator, timber owner or
landowner did not submit the notification. The { - State
Forester - } { + director + } shall send a copy of notices
involving chemical applications to persons within 10 miles of the
chemical application who hold downstream surface water rights
pursuant to ORS chapter 537, if such a person has requested that
notification in writing. The { - board - } { + commission + }
shall adopt rules specifying the information to be contained in
the notice. All information filed with the { - State
Forester - } { + director + } pertaining to chemical
applications shall be public record.
(7) An operator, timber owner or landowner, whichever filed the
original notification, shall notify the { - State Forester - }
{ + director + } of any subsequent change in the information
contained in the notification.
(8) Within three working days of receipt of a notice or a
written plan filed under subsection (6) or (7) of this section,
the { - State Forester - } { + director + } shall send a copy
of the notice or written plan to any person who requested of the
{ - State Forester - } { + director + } in writing that the
person be sent copies of notice and written plan and who has paid
any applicable fee established by the { - State Forester - }
{ + director + } for such service. The { - State Forester - }
{ + director + } may establish a fee for sending copies of
notices and written plans under this subsection not to exceed the
actual and reasonable costs. In addition, the { - State
Forester - } { + director + } shall send a copy of the
notification to the Department of Revenue and the county assessor
for the county in which the operation is located, at times and in
a manner determined through written cooperative agreement by the
parties involved.
(9) Persons may submit written comments pertaining to the
operation to the { - State Forester - } { + director + }
within 14 calendar days of the date the notice or written plan
was filed with the { - State Forester - } { + director + }
under subsection (2), (6) or (7) of this section. Notwithstanding
the provisions of this subsection, the
{ - State Forester - } { + director + } may waive any waiting
period for operations not requiring a written plan under
subsection (3) of this section, except those operations involving
aerial application of chemicals.
(10) If an operator, timber owner or landowner is required to
submit a written plan of operations to the { - State
Forester - } { + director + } under subsection (3) of this
section:
(a) The { - State Forester - } { + director + } shall
review a written plan and may provide comments to the person who
submitted the written plan;
(b) The { - State Forester - } { + director + } may not
provide any comments concerning the written plan earlier than 14
calendar days following the date that the written plan was filed
with the { - State Forester - } { + director + } nor later
than 21 calendar days following the date that the written plan
was filed; and
(c) Provided that notice has been provided as required by
subsection (6) of this section, the operation may commence on the
date that the { - State Forester - } { + director + }
provides comments or, if no comments are provided within the time
period established in paragraph (b) of this subsection, at any
time after 21 calendar days following the date that the written
plan was filed.
(11)(a) Comments provided by the { - State Forester, or by
the board - } { + director, or by the commission + } under ORS
527.700 (6), to the person who submitted the written plan are for
the sole purpose of providing advice to the operator, timber
owner or landowner regarding whether the operation described in
the written plan is likely to comply with ORS 527.610 to 527.770
and rules adopted thereunder. Comments provided by the
{ - State Forester or the board - } { + director or the
commission + } do not constitute an approval of the written plan
or operation.
(b) If the { - State Forester or the board - } { + director
or the commission + } does not comment on a written plan, the
failure to comment does not mean that an operation carried out in
conformance with the written plan complies with ORS 527.610 to
527.770 or rules adopted thereunder nor does the failure to
comment constitute a rejection of the written plan or operation.
(c) In the event that the { - State Forester or board - }
{ + director or commission + } determines that an enforcement
action may be appropriate concerning the compliance of a
particular operation with ORS 527.610 to 527.770 or rules adopted
thereunder, the
{ - State Forester or board - } { + director or
commission + } shall consider, but { - are - } { + is + } not
bound by, comments that the { - State Forester - }
{ + director + } provided under this section or comments that
the { - board - } { + commission + } provided under ORS
527.700.
(12) When the operation is required to have a written plan
under subsection (3) of this section and comments have been
timely filed under subsection (9) of this section pertaining to
the operation requiring a written plan, the { - State
Forester - } { + director + } shall:
(a) Send a copy of the { - State Forester's - }
{ + director's + } review and comments, if any, to persons who
submitted timely written comments under subsection (9) of this
section pertaining to the operation; and
(b) Send to the operator, timber owner and landowner a copy of
all timely comments submitted under subsection (9) of this
section.
SECTION 2006. ORS 527.674 is amended to read:
527.674. The { - State Board of Forestry - } { + Oregon
Natural Resources Commission + } may not adopt or enforce a rule
under ORS 527.610 to 527.770 that requires that the { - board
or the State Forester - } { + commission or the Director of the
Oregon Department of Natural Resources + } approve written plans
as a required precedent to conducting a forest practice or
operation.
SECTION 2007. ORS 527.676 is amended to read:
527.676. (1) In order to contribute to the overall maintenance
of wildlife, nutrient cycling, moisture retention and other
resource benefits of retained wood, when a harvest type 2 unit
exceeding 25 acres or harvest type 3 unit exceeding 25 acres
occurs the operator shall leave on average, per acre harvested,
at least:
(a) Two snags or two green trees at least 30 feet in height and
11 inches DBH or larger, at least 50 percent of which are
conifers; and
(b) Two downed logs or downed trees, at least 50 percent of
which are conifers, that each comprise at least 10 cubic feet
gross volume and are no less than six feet long. One downed
conifer or suitable hardwood log of at least 20 cubic feet gross
volume and no less than six feet long may count as two logs.
(2) In meeting the requirements of this section, the operator
has the sole discretion to determine the location and
distribution of wildlife leave trees, including the ability to
leave snags, trees and logs in one or more clusters rather than
distributed throughout the unit and, if specifically permitted by
the { - State Board of Forestry - } { + Oregon Natural
Resources Commission + } by rule, to meet the wildlife leave tree
requirements by counting snags, trees or logs otherwise required
to be left in riparian management areas or resource sites listed
in ORS 527.710, subject to:
(a) Safety and fire hazard regulations;
(b) Rules or other requirements relating to wildlife leave
trees established by the { - State Board of Forestry or the
State Forester - } { + Director of the Oregon Department of
Natural Resources or the commission + }; and
(c) All other requirements pertaining to forest operations.
(3) In meeting the requirements of this section, the
{ - State Forester - } { + director + }:
(a) Shall consult with the operator concerning the selection of
wildlife leave trees when the { - State Forester - }
{ + director + } believes that retaining certain trees or groups
of trees would provide increased benefits to wildlife.
(b) May approve alternate plans submitted by the operator to
meet the provisions of this section, including but not limited to
waiving:
(A) The requirement that at least 50 percent of wildlife leave
trees be conifers, upon a showing that a site is being
intensively managed for hardwood production; and
(B) In whole or in part, the requirements of this section for
one operation if an alternate plan provides for an equal or
greater number of wildlife leave trees in another harvest type 2
or harvest type 3 operation, that the { - State Forester - }
{ + director + } determines would achieve better overall
benefits for wildlife.
(c) May require, for operations adjacent to a fish-bearing or
domestic use stream, in addition to trees otherwise required to
be left in riparian management areas, up to 25 percent of the
green trees required to be retained under this section to be left
in or adjacent to the riparian management area of the stream.
(d) May require by rule, for operations adjacent to a small,
nonfish-bearing stream subject to rapidly moving landslides as
defined in ORS 195.250, that available green trees and snags be
left in or adjacent to the stream. The operator must leave
available green trees and snags under this paragraph within an
area that is 50 feet on each side of the stream and no more than
500 feet upstream from a riparian management area of a
fish-bearing stream.
(4) When a harvest type 2 or harvest type 3 unit occurs
adjacent to a prior harvest type 2 or harvest type 3 unit,
resulting in a combined total contiguous acreage of harvest type
2 or harvest type 3 under single ownership exceeding 25 acres,
the wildlife leave tree and downed log requirements of subsection
(1) of this section apply to the combined total contiguous
acreage.
SECTION 2008. ORS 527.680 is amended to read:
527.680. (1) Whenever the { - State Forester - }
{ + Director of the Oregon Department of Natural Resources + }
determines that an operator has committed a violation under ORS
527.990 (1), the { - State Forester - } { + director + } may
issue and serve a citation upon the operator or authorized
representative. The { - State Forester - } { + director + }
shall cause a copy of the citation to be mailed or delivered to
the timber owner and landowner. Whenever the { - State
Forester - } { + director + } determines that the landowner has
failed to comply with the reforestation rules under ORS 527.710,
the { - State Forester - } { + director + } may issue and
serve a citation upon the landowner or authorized representative.
Each citation issued under this section shall specify the nature
of the violation charged and any damage or unsatisfactory
condition that has occurred as the result of such violation.
(2) Whenever a citation is served pursuant to subsection (1) of
this section, the { - State Forester - } { + director + }:
(a) Shall issue and serve upon the landowner or operator or
authorized representative an order directing that the landowner
or operator cease further violation. If the order is served upon
an operator, the { - State Forester - } { + director + }
shall cause a copy of such order to be mailed or delivered to the
timber owner and landowner; and
(b) May issue and serve an order upon the landowner or operator
and shall cause a copy of such order to be mailed or delivered to
the timber owner and landowner, directing the landowner or
operator, where practical and economically feasible, to make
reasonable efforts to repair the damage or correct the
unsatisfactory condition specified in the citation within a
period specified by the { - State Forester - }
{ + director + }.
(3) In the event the order issued under subsection (2)(a) of
this section has not been complied with, and the violation
specified in such order is resulting in continuing damage, the
{ - State Forester - } { + director, + } by temporary order,
may direct the landowner or operator to cease any further
activity in that portion of the operation that is resulting in
such damage. Such temporary order shall be in effect until the
date of the expiration of the period as prescribed in subsection
(4) of this section or until the date that the violation ceases,
whichever date occurs first.
(4) A temporary order issued under subsection (3) of this
section shall be served upon the landowner or operator or
authorized representative, and the { - State Forester - }
{ + director + } shall cause a copy of such temporary order to
be mailed or delivered to the operator, timber owner and
landowner. If requested by the operator, timber owner or
landowner, the { - State Board of Forestry - } { + Oregon
Natural Resources Commission + }, following the appeal procedures
of ORS 527.700, must hold a hearing on the temporary order within
five working days after the receipt by the { - board - }
{ + commission + } of the request. A temporary order issued and
served pursuant to subsection (3) of this section shall remain in
effect not more than five working days after such hearing unless
the order is sooner affirmed, modified or revoked by the
{ - board - } { + commission + }.
(5) If a landowner or operator fails to comply with a final
order issued under subsection (2)(b) of this section within the
time specified in the order, or if the landowner or operator
fails to comply with a final order imposing civil penalties for
violation of any provision of the Oregon Forest Practices Act,
the
{ - State Forester - } { + director + } may issue an order
that prohibits the affected landowner or operator from conducting
any new operations on any forestland in this state until the
landowner or operator has complied with the order to correct an
unsatisfactory condition, make repair or pay the civil penalty,
as the case may be, to the satisfaction of the { - State
Forester - } { + director + }.
SECTION 2009. ORS 527.683 is amended to read:
527.683. (1) No civil penalty prescribed in ORS 527.992 shall
be imposed until the person incurring the penalty has received
notice in writing from the { - State Forester - }
{ + director + } specifying the violation. Such notice is in
addition to the notice required in ORS 183.745.
(2) The citation issued pursuant to ORS 527.680 (1) and the
order issued pursuant to ORS 527.680 (2)(b) shall each constitute
the notice required by subsection (1) of this section.
SECTION 2010. ORS 527.685 is amended to read:
527.685. (1) The { - State Board of Forestry - } { + Oregon
Natural Resources Commission + } shall by rule establish the
amount of civil penalty that may be imposed for a particular
violation. Except as provided in subsection (5) of this section,
no civil penalty shall exceed $5,000 per violation.
(2) In imposing a penalty authorized by this section, the
{ - State Forester - } { + Director of the Oregon Department
of Natural Resources + } may consider the following factors:
(a) The past history of the person incurring a penalty in
taking all feasible steps or procedures necessary or appropriate
to correct any violation.
(b) Any prior violations of statutes, rules, orders and permits
pertaining to the Oregon Forest Practices Act.
(c) The gravity and magnitude of the violation.
(d) Whether the violation was repeated or continuous.
(e) Whether the cause of the violation was an unavoidable
accident, negligence or an intentional act.
(f) The size and type of ownership of the operation.
(g) Any relevant rule of the { - board - }
{ + commission + }.
(h) The violator's cooperativeness and efforts to correct the
violation.
(3) The penalty imposed under this section may be remitted or
mitigated upon such terms and conditions as the { - board - }
{ + commission + } determines to be proper and consistent with
the public benefit. Upon the request of the person incurring the
penalty, the { - board - } { + commission + } shall consider
evidence of the economic and financial condition of the person in
determining whether a penalty shall be remitted or mitigated.
(4) The { - board - } { + commission + }, by rule, may
delegate to the
{ - State Forester upon such conditions as deemed
necessary, - } { + director + } all or part of the authority of
the { - board - } { + commission + } provided in subsection
(3) of this section to assess, remit or mitigate civil penalties.
(5) For a violation of ORS 527.745, or rules for reforestation
adopted pursuant to ORS 527.745, the { - State Forester - }
{ + director + } may impose a civil penalty in an amount equal
to the estimated cost of reforesting lands pursuant to ORS
527.690.
SECTION 2011. ORS 527.687 is amended to read:
527.687. (1) Subject to the notice provisions of ORS 527.683,
any civil penalty under ORS 527.992 shall be imposed in the
manner provided in ORS 183.745.
(2) In no case shall a hearing requested under ORS 183.745 be
held less than 45 days from the date of service of the notice of
penalty to allow the party to prepare testimony. The hearing
shall be held not more than 180 days following issuance of the
notice unless all parties agree on an extension.
(3) Hearings under this section shall be conducted by an
administrative law judge assigned from the Office of
Administrative Hearings established under ORS 183.605.
(4) Except as provided in subsection (5) of this section, all
civil penalties recovered under ORS 527.610 to 527.770, 527.990
and 527.992 shall be paid to the General Fund.
(5) Civil penalties recovered under ORS 527.685 (5) shall be
deposited in the { - State Forestry Department Account under
ORS 526.060 and used, consistently with ORS 527.690, by the State
Forester to reforest the - } { + Oregon Natural Resources Fund.
Moneys deposited in the fund under this subsection are
continuously appropriated to the Oregon Department of Natural
Resources for purposes related to the reforestation of + }land
that is the subject of a violation of ORS 527.745 or rules for
reforestation adopted pursuant to ORS 527.745. Civil penalties
described in this subsection that exceed the costs of
reforestation shall be paid to the General Fund.
SECTION 2012. ORS 527.690 is amended to read:
527.690. (1) In the event an order issued pursuant to ORS
527.680 (2)(b) directs the repair of damage or correction of an
unsatisfactory condition, including compliance with reforestation
requirements, and if the operator or landowner does not comply
with the order within the period specified in such order and the
order has not been appealed to the { - State Board of Forestry
within 30 days, the State Forester based upon a determination by
the forester of what action will best carry out the purposes of
ORS 527.630 - } { + Oregon Natural Resources Commission within
30 days, the Director of the Oregon Department of Natural
Resources in consideration of what action will best carry out the
purposes of ORS 527.630 + } shall:
(a) Maintain an action in the Circuit Court for Marion County
or the circuit court for the county in which the violation
occurred for an order requiring the landowner or operator to
comply with the terms of the { - forester's - }
{ + director's + } order or to restrain violations thereof; or
(b) Estimate the cost to repair the damage or the
unsatisfactory condition as directed by the order and shall
notify the operator, timber owner and landowner in writing of the
amount of the estimate. Upon agreement of the operator, timber
owner or the landowner to pay the cost, the { - State
Forester - } { + director + } may proceed to repair the damage
or the unsatisfactory condition. In the event approval of the
expenditure is not obtained within 30 days after notification to
the operator, timber owner and landowner under this section, the
{ - State Forester shall present to the board - } { + director
shall present to the commission + } the alleged violation, the
estimate of the expenditure to repair the damage or
unsatisfactory condition and the justification for the
expenditure.
(2) The { - board - } { + commission + } shall review the
matter presented to it pursuant to subsection (1) of this section
and shall determine whether to authorize the { - State
Forester - } { + director + } to proceed to repair the damage
or correct the unsatisfactory condition and the amount authorized
for expenditure. The { - board - } { + commission + } shall
afford the operator, timber owner or landowner the opportunity to
appear before the { - board - } { + commission + } for the
purpose of presenting facts pertaining to the alleged violation
and the proposed expenditure.
(3) If the { - board - } { + commission + } authorizes the
{ - State Forester - } { + director + } to repair the damage or
correct the unsatisfactory condition, the { - State
Forester - } { + director + } shall proceed, either with forces
of the { - State Forester - } { + director + } or by
contract, to repair the damage or correct the unsatisfactory
condition. The
{ - State Forester - } { + director + } shall keep a complete
account of direct expenditures incurred, and upon completion of
the work, shall prepare an itemized statement thereof and shall
deliver a copy to the operator, timber owner and landowner. In no
event shall the expenditures exceed the amount authorized by
subsection (2) of this section. An itemized statement of the
direct expenditures incurred { - by the State Forester,
certified by the State Forester, - } { + and certified by the
director + } shall be accepted as prima facie evidence of such
expenditures in any proceeding authorized by this section. If the
{ - State Forester's - } { + director's + } action to repair
the damage or correct the unsatisfactory condition arose from an
operation for which a bond, cash deposit or other security was
required under ORS 527.760, the { - State Forester - }
{ + director + } shall retain any applicable portion of a cash
deposit and the surety on the bond or holder of the other
security deposit shall pay the amount of the bond or other
security deposit to the { - State Forester - }
{ + director + } upon demand. If the amount specified in the
demand is not paid within 30 days following the demand, the
Attorney General, upon request by the { - State Forester - }
{ + director + }, shall institute proceedings to recover the
amount specified in the demand.
(4) The expenditures in cases covered by this section,
including cases where the amount collected on a bond, deposit or
other security was not sufficient to cover authorized
expenditures, shall constitute a general lien upon the real and
personal property of the operator, timber owner and landowner
within the county in which the damage occurred. A written notice
of the lien, containing a statement of the demand, the
description of the property upon which the expenditures were made
and the name of the parties against whom the lien attaches, shall
be certified under oath by the { - State Forester - }
{ + director + } and filed in the office of the county clerk of
the county or counties in which the expenditures were made within
six months after the date of delivery of the itemized statement
referred to in subsection (3) of this section, and may be
foreclosed in the manner provided in ORS chapter 88.
(5) All moneys recovered under this section shall be { - paid
into the State Forestry Department Account. - } { + deposited
in the Oregon Natural Resources Fund. Moneys deposited in the
fund under this subsection are continuously appropriated to the
Oregon Department of Natural Resources for the purpose of
carrying out the duties, functions and powers of the department
as prescribed by section 1 (10) and (11) of this 2011 Act. + }
SECTION 2013. ORS 527.700 is amended to read:
527.700. (1) Any operator, timber owner or landowner affected
by any finding or order of the { - State Forester - }
{ + Director of the Oregon Department of Natural Resources + }
issued under ORS 527.610 to 527.770 and 527.992 may request a
hearing within 30 days after issuance of the order. The hearing
shall be commenced within 14 days after receipt of the request
for hearing and a final order shall be issued within 28 days of
the request for the hearing unless all parties agree to an
extension of the time limit.
(2) The { - State Board of Forestry - } { + Oregon Natural
Resources Commission + } may delegate to the administrative law
judge the authority to issue final orders on matters under this
section. Hearings provided under this section shall be conducted
as contested case hearings under ORS 183.413 to 183.470. The
{ - board - } { + commission + } may establish such rules as
it deems appropriate to carry out the provisions of this section.
Appeals from final hearing orders under this section shall be
provided in ORS 183.482, except that the comments of the
{ - board or the State Forester - } { + commission or the
director + } concerning a written plan are not reviewable orders
under ORS 183.480.
(3) Any person adversely affected or aggrieved by an operation
described in subsection (4) of this section may file a written
request to the { - board - } { + commission + } for a hearing
if the person submitted written comments pertaining to the
operation within the time limits established under ORS 527.670
(9).
(4) A request for hearing may be filed under subsection (3) of
this section only if a written plan was required pursuant to ORS
527.670 (3).
(5) A request for hearing filed under subsection (3) of this
section shall be filed within 14 calendar days of the date the
{ - State Forester - } { + director + } completed review of
the written plan and issued any comments. Copies of the complete
request shall be served, within the 14-day period, on the
operator, timber owner and landowner. The request shall include:
(a) A copy of the written plan on which the person is
requesting a hearing;
(b) A copy of the comments pertaining to the operation that
were filed by the person requesting the hearing;
(c) A statement that shows the person is adversely affected or
aggrieved by the operation and has an interest which is addressed
by the Oregon Forest Practices Act or rules adopted thereunder;
and
(d) A statement of facts that establishes that the operation is
of the type described in ORS 527.670 (3).
(6) If the { - board - } { + commission + } finds that the
person making the request meets the requirement of subsection
(5)(c) of this section, the { - board - } { + commission + }
shall set the matter for hearing within 21 calendar days after
receipt of the request for hearing. The operator, timber owner
and landowner shall be allowable parties to the hearing. The
person requesting the hearing may raise, in the hearing, only
those issues that the person raised in written comments filed
under ORS 527.670 (9) relating to conformity with the rules of
the { - board. The board - } { + commission. The
commission + } shall issue its own comments, which may affirm,
modify or rescind comments of the { - State Forester - }
{ + director + }, if any, on the written plan within 45 days
after the request for hearing was filed, unless all parties agree
to an extension of the time limit. The comments of the
{ - board or of the State Forester - } { + director or the
commission + } concerning a written plan are not reviewable
orders under ORS 183.480.
(7) The { - board - } { + commission + } may award
reasonable attorney fees and expenses to each of the prevailing
parties against any other party who the { - board - }
{ + commission + } finds presented a position without probable
cause to believe the position was well-founded, or made a request
primarily for a purpose other than to secure appropriate action
by the { - board - } { + commission + }.
(8)(a) Upon the written request of a person requesting a
hearing under subsection (3) of this section, a stay of the
operation subject to the hearing may be granted upon a showing
that:
(A) Commencement or continuation of the operation will
constitute a violation of the rules of the { - board - }
{ + commission + };
(B) The person requesting the stay will suffer irreparable
injury if the stay is not granted; and
(C) The requirements of subsections (3), (4) and (5) of this
section are met.
(b) If the { - board - } { + commission + } grants the
stay, it shall require the person requesting the stay to give an
undertaking which may be in the amount of the damages potentially
resulting from the stay, but in any event shall not be less than
$15,000. The { - board - } { + commission + } may impose
other reasonable requirements pertaining to the grant of the
stay. The { - board - } { + commission + } shall limit the
effect of the stay to the specific geographic area or elements of
the operation for which the person requesting the stay has
demonstrated a violation of the rules and irreparable injury
under paragraph (a) of this subsection.
(c) If the { - board - } { + commission + } determines in
its comments that the written plan pertaining to the operation
for which the stay was granted is likely to result in compliance
with ORS 527.610 to 527.770 or the rules of the { - board, the
board - } { + commission, the commission + } may award
reasonable attorney fees and actual damages in favor of each of
the prevailing parties, to the extent incurred by each, against
the person requesting the stay.
(9) If the { - board - } { + commission + } rescinds or
modifies the comments on the written plan as submitted by the
{ - State Forester - } { + director + } pertaining to any
operation, the { - board - } { + commission + } may award
reasonable attorney fees and costs against the state in favor of
each of the prevailing parties.
(10) As used in this section, 'person' means any individual,
partnership, corporation, association, governmental subdivision
or public or private organization of any character.
SECTION 2014. ORS 527.710 is amended to read:
527.710. (1) In carrying out the purposes of ORS 527.610 to
527.770, 527.990 (1) and 527.992, the { - State Board of
Forestry - } { + Oregon Natural Resources Commission + } shall
adopt, in accordance with applicable provisions of ORS chapter
183, rules to be administered by the { - State Forester - }
{ + Director of the Oregon Department of Natural Resources + }
establishing standards for forest practices in each region or
subregion.
(2) The rules shall ensure the continuous growing and
harvesting of forest tree species. Consistent with ORS 527.630,
the rules shall provide for the overall maintenance of the
following resources:
(a) Air quality;
(b) Water resources, including but not limited to sources of
domestic drinking water;
(c) Soil productivity; and
(d) Fish and wildlife.
(3)(a) In addition to its rulemaking responsibilities under
subsection (2) of this section, the { - board - }
{ + commission + } shall collect and analyze the best available
information and establish inventories of the following resource
sites needing protection:
(A) Threatened and endangered fish and wildlife species
identified on lists that are adopted, by rule, by the { - State
Fish and Wildlife - } commission or are federally listed under
the Endangered Species Act of 1973 as amended;
(B) Sensitive bird nesting, roosting and watering sites;
(C) Biological sites that are ecologically and scientifically
significant; and
(D) Significant wetlands.
(b) The { - board - } { + commission + } shall determine
whether forest practices would conflict with resource sites in
the inventories required by paragraph (a) of this subsection. If
the { - board - } { + commission + } determines that one or
more forest practices would conflict with resource sites in the
inventory, the { - board - } { + commission + } shall
consider the consequences of the conflicting uses and determine
appropriate levels of protection.
(c) Based upon the analysis required by paragraph (b) of this
subsection, and consistent with the policies of ORS 527.630, the
{ - board - } { + commission + } shall adopt rules
appropriate to protect resource sites in the inventories required
by paragraph (a) of this subsection.
(4) Before adopting rules under subsection (1) of this section,
the { - board - } { + commission + } shall consult with other
agencies of this state or any of its political subdivisions that
have functions with respect to the purposes specified in ORS
527.630 or programs affected by forest operations. Agencies and
programs subject to consultation under this subsection include,
but are not limited to:
(a) Air and water pollution programs administered by the
Department of Environmental Quality under ORS chapters 468A and
468B and ORS 477.013 and 477.515 to 477.532;
{ - (b) Mining operation programs administered by the
Department of Geology and Mineral Industries under ORS 516.010 to
516.130 and ORS chapter 517; - }
{ - (c) Game fish and wildlife, commercial fishing,
licensing, wildlife and bird refuge and fish habitat improvement
tax incentive programs administered by the State Department of
Fish and Wildlife under ORS 272.060, 315.134 and ORS chapters
496, 498, 501, 506 and 509; - }
{ - (d) Park land, Willamette River Greenway, scenic waterway
and recreation trail programs administered by the State Parks and
Recreation Department under ORS 358.480 to 358.545, 390.310 to
390.368, 390.805 to 390.925, 390.950 to 390.989 and 390.121; - }
{ - (e) - } { + (b) + } The programs administered by the
Columbia River Gorge Commission under Public Law 99-663 and ORS
196.110 and 196.150;
{ - (f) Removal and fill, conservation and conservation tax
incentive programs administered by the State Land Board and the
Department of State Lands under ORS 196.800 to 196.900 and
273.553 to 273.591; - }
{ - (g) - } { + (c) + } Federal Safe Drinking Water Act
programs administered by the Oregon Health Authority under ORS
448.273 to 448.990;
{ - (h) - } { + (d) + } Conservation and conservation tax
incentive programs administered by the Natural Heritage Advisory
Council under ORS 273.553 to 273.591;
{ - (i) - } { + (e) + } Open space land tax incentive
programs administered by cities and counties under ORS 308A.300
to 308A.330; { + and + }
{ - (j) Water resources programs administered by the Water
Resources Department under ORS 536.220 to 536.540; and - }
{ - (k) - } { + (f) + } Pesticide control programs
administered by the State Department of Agriculture under ORS
chapter 634.
(5) In carrying out the provisions of subsection (4) of this
section, the { - board - } { + commission + } shall consider
and accommodate the rules and programs of other agencies to the
extent deemed by the
{ - board - } { + commission + } to be appropriate and
consistent with the purposes of ORS 527.630.
(6) The { - board - } { + commission + } shall adopt rules
to meet the purposes of another agency's regulatory program where
it is the intent of the { - board - } { + commission + } to
administer the other agency's program on forestland and where the
other agency concurs by rule. An operation performed in
compliance with the { - board's - } { + commission's + }
rules shall be deemed to comply with the other agency's program.
(7)(a) The { - board - } { + commission + } may enter into
cooperative agreements or contracts necessary in carrying out the
purposes specified in ORS 527.630.
(b) The { - State Forestry Department - } { + Oregon
Department of Natural Resources + } shall enter into agreements
with appropriate state agencies for joint monitoring of the
effectiveness of forest practice rules in protecting forest
resources and water quality.
(8) If, based upon the study completed pursuant to section 15
(2)(f), chapter 919, Oregon Laws 1991, the { - board - }
{ + commission + } determines that additional rules are
necessary to protect forest resources pursuant to ORS 527.630,
the { - board - } { + commission + } shall adopt forest
practice rules that reduce to the degree practicable the adverse
impacts of cumulative effects of forest practices on air and
water quality, soil productivity, fish and wildlife resources and
watersheds. Such rules shall include a process for determining
areas where adverse impacts from cumulative effects have occurred
or are likely to occur, and may require that a written plan be
submitted for harvests in such areas.
(9)(a) The { - State Forester, in cooperation with the State
Department of Fish and Wildlife, - } { + director + } shall
identify streams for which restoration of habitat would be
environmentally beneficial. The { - State Forester - }
{ + director + } shall select as a priority those streams where
restoration efforts will provide the greatest benefits to fish
and wildlife, and to streambank and streambed stability.
(b) For those streams identified in paragraph (a) of this
subsection, the { - State Forester - } { + director + } shall
encourage landowners to enter into cooperative agreements with
appropriate state agencies for conduct of restoration activities.
(c) The { - board - } { + commission + }, in consultation
with appropriate state agencies, shall study and identify methods
for restoring or enhancing fish and wildlife populations through
restoration and rehabilitation of sites beneficial to fish and
wildlife.
(d) The { - board - } { + commission + } shall adopt rules
to implement the findings of this subsection.
(10) In addition to its responsibilities under subsections (1)
to (3) of this section, the { - board - } { + commission + }
shall adopt rules to reduce the risk of serious bodily injury or
death caused by a rapidly moving landslide directly related to
forest practices. The rules shall consider the exposure of the
public to these safety risks and shall include appropriate
practices designed to reduce the occurrence, timing or effects of
rapidly moving landslides. As used in this subsection, 'rapidly
moving landslide' has the meaning given that term in ORS 195.250.
SECTION 2015. ORS 527.714 is amended to read:
527.714. (1) The rulemaking authority of the { - State Board
of Forestry - } { + Oregon Natural Resources Commission + }
under ORS 527.610 to 527.770 consists generally of the following
three types of rules:
(a) Rules adopted to implement administration, procedures or
enforcement of ORS 527.610 to 527.770 that support but do not
directly regulate standards of forest practices.
(b) Rules adopted to provide definitions or procedures for
forest practices where the standards are set in statute.
(c) Rules adopted to implement the provisions of ORS 527.710
(2), (3), (6), (8), (9) and (10) that grant broad discretion to
the { - board - } { + commission + } and that set standards
for forest practices not specifically addressed in statute.
(2) When considering the adoption of a rule, and prior to the
notice required pursuant to ORS 183.335, the { - board - }
{ + commission + } shall determine which type of rule described
in subsection (1) of this section is being considered.
(3) If the { - board - } { + commission + } determines that
a proposed rule is of the type described in subsection (1)(a) or
(b) of this section, or if the proposed rule is designed only to
clarify the meaning of rules already adopted or to make minor
adjustments to rules already adopted that are of the type
described in subsection (1)(c) of this section, rulemaking may
proceed in accordance with ORS 183.325 to 183.410 and is not
subject to the provisions of this section.
(4) If the { - board - } { + commission + } determines that
a proposed rule is of the type described in subsection (1)(c) of
this section, and the proposed rule would change the standards
for forest practices, the { - board - } { + commission + }
shall describe in its rule the purpose of the rule and the level
of protection that is desired.
(5) If the { - board - } { + commission + } determines that
a proposed rule is of the type described in subsection (1)(c) of
this section, including a proposed amendment to an existing rule
not qualifying under subsection (3) of this section, and the
proposed rule would provide new or increased standards for forest
practices, the
{ - board - } { + commission + } may adopt such a rule only
after determining that the following facts exist and standards
are met:
(a) If forest practices continue to be conducted under existing
regulations, there is monitoring or research evidence that
documents that degradation of resources maintained under ORS
527.710 (2) or (3) is likely, or in the case of rules proposed
under ORS 527.710 (10), that there is a substantial risk of
serious bodily injury or death;
(b) If the resource to be protected is a wildlife species, the
scientific or biological status of a species or resource site to
be protected by the proposed rule has been documented using best
available information;
(c) The proposed rule reflects available scientific
information, the results of relevant monitoring and, as
appropriate, adequate field evaluation at representative
locations in Oregon;
(d) The objectives of the proposed rule are clearly defined,
and the restrictions placed on forest practices as a result of
adoption of the proposed rule:
(A) Are to prevent harm or provide benefits to the resource or
resource site for which protection is sought, or in the case of
rules proposed under ORS 527.710 (10), to reduce risk of serious
bodily injury or death; and
(B) Are directly related to the objective of the proposed rule
and substantially advance its purpose;
(e) The availability, effectiveness and feasibility of
alternatives to the proposed rule, including nonregulatory
alternatives, were considered, and the alternative chosen is the
least burdensome to landowners and timber owners, in the
aggregate, while still achieving the desired level of protection;
and
(f) The benefits to the resource, or in the case of rules
proposed under ORS 527.710 (10), the benefits in reduction of
risk of serious bodily injury or death, that would be achieved by
adopting the rule are in proportion to the degree that existing
practices of the landowners and timber owners, in the aggregate,
are contributing to the overall resource concern that the
proposed rule is intended to address.
(6) Nothing in subsection (5) of this section:
(a) Requires the { - board - } { + commission + } to call
witnesses;
(b) Requires the { - board - } { + commission + } to allow
cross-examination of witnesses;
(c) Restricts ex parte communications with the { - board - }
{ + commission + } or requires the { - board - }
{ + commission + } to place statements of such communications on
the record;
(d) Requires verbatim transcripts of records of proceedings; or
(e) Requires depositions, discovery or subpoenas.
(7) If the { - board - } { + commission + } determines that
a proposed rule is of the type described in subsection (1)(c) of
this section, and the proposed rule would require new or
increased standards for forest practices, as part of or in
addition to the economic and fiscal impact statement required by
ORS 183.335 (2)(b)(E), the
{ - board - } { + commission + } shall, prior to the close of
the public comment period, prepare and make available to the
public a comprehensive analysis of the economic impact of the
proposed rule. The analysis shall include, but is not limited to:
(a) An estimate of the potential change in timber harvest as a
result of the rule;
(b) An estimate of the overall statewide economic impact,
including a change in output, employment and income;
(c) An estimate of the total economic impact on the forest
products industry and common school and county forest trust land
revenues, both regionally and statewide; and
(d) Information derived from consultation with potentially
affected landowners and timber owners and an assessment of the
economic impact of the proposed rule under a wide variety of
circumstances, including varying ownership sizes and the
geographic location and terrain of a diverse subset of
potentially affected forestland parcels.
(8) The provisions of this section do not apply to temporary
rules adopted by the { - board - } { + commission + }.
SECTION 2016. ORS 527.715 is amended to read:
527.715. The { - State Board of Forestry - } { + Oregon
Natural Resources Commission + } shall establish, by rule, the
standards and procedures to implement the provisions of ORS
197.180, 197.270, 197.825, 215.050, 477.090, 477.440, 477.455,
477.460, { - 526.009, 526.016, - } 526.156, 527.620, 527.630,
527.660, 527.670, 527.683 to 527.724, 527.736 to 527.760 and
527.992.
SECTION 2017. ORS 527.721 is amended to read:
527.721. By rule or by cooperative agreement entered into
following an opportunity for public comment before the
{ - State Board of Forestry, the board - } { + Oregon Natural
Resources Commission, the commission + } shall provide for
coordination with appropriate state and local agencies regarding
procedures to be followed for review and comment on individual
forest operations.
SECTION 2018. ORS 527.722 is amended to read:
527.722. (1) Notwithstanding any provisions of ORS chapters
195, 196, 197, 215 and 227, and except as provided in subsections
(2), (3) and (4) of this section, no unit of local government
shall adopt any rules, regulations or ordinances or take any
other actions that prohibit, limit, regulate, subject to approval
or in any other way affect forest practices on forestlands
located outside of an acknowledged urban growth boundary.
(2) Nothing in subsection (1) of this section prohibits local
governments from adopting and applying a comprehensive plan or
land use regulation to forestland to allow, prohibit or regulate:
(a) Forest practices on lands located within an acknowledged
urban growth boundary;
(b) Forest practices on lands located outside of an
acknowledged urban growth boundary, and within the city limits as
they exist on July 1, 1991, of a city with a population of
100,000 or more, for which an acknowledged exception to an
agriculture or forestland goal has been taken;
(c) The establishment or alteration of structures other than
temporary on-site structures which are auxiliary to and used
during the term of a particular forest operation;
(d) The siting or alteration of dwellings;
(e) Physical alterations of the land, including but not limited
to those made for purposes of exploration, mining, commercial
gravel extraction and processing, landfills, dams, reservoirs,
road construction or recreational facilities, when such uses are
not auxiliary to forest practices; or
(f) Partitions and subdivisions of the land.
(3) Nothing in subsection (2) of this section shall prohibit a
local government from enforcing the provisions of ORS 455.310 to
455.715 and the rules adopted thereunder.
(4) Counties may prohibit, but in no other manner regulate,
forest practices on forestlands:
(a) Located outside an acknowledged urban growth boundary; and
(b) For which an acknowledged exception to an agricultural or
forest land goal has been taken.
(5) To ensure that all forest operations in this state are
regulated to achieve protection of soil, air, water, fish and
wildlife resources, in addition to all other forestlands, the
Oregon Forest Practices Act applies to forest operations inside
any urban growth boundary except in areas where a local
government has adopted land use regulations for forest practices.
For purposes of this subsection, 'land use regulations for forest
practices' means local government regulations that are adopted
for the specific purpose of directing how forest operations and
practices may be conducted. These local regulations shall:
(a) Protect soil, air, water, fish and wildlife resources;
(b) Be acknowledged as in compliance with land use planning
goals;
(c) Be developed through a public process;
(d) Be developed for the specific purpose of regulating forest
practices; and
(e) Be developed in coordination with the { - State Forestry
Department and with notice to the Department of Land Conservation
and Development - } { + Oregon Department of Natural
Resources + }.
(6) To coordinate with local governments in the protection of
soil, air, water, fish and wildlife resources, the { - State
Forester - } { + Director of the Oregon Department of Natural
Resources + } shall provide local governments with a copy of the
notice or written plan for a forest operation within any urban
growth boundary. Local governments may review and comment on an
individual forest operation and inform the landowner or operator
of all other regulations that apply but that do not pertain to
activities regulated under the Oregon Forest Practices Act.
(7) The existence or adoption by local governments of a
comprehensive plan policy or land use regulation regulating
forest practices consistent with subsections (1) to (5) of this
section shall relieve the { - State Forester - }
{ + director + } of responsibility to administer the Oregon
Forest Practices Act within the affected area.
{ - (8) The Director of the Department of Land Conservation
and Development shall provide the State Forester copies of
notices submitted pursuant to ORS 197.615, whenever such notices
concern the adoption, amendment or repeal of a comprehensive land
use regulation allowing, prohibiting or regulating forest
practices. - }
SECTION 2019. ORS 527.736 is amended to read:
527.736. (1) The standards established in ORS 527.740 to
527.750 shall be administered by the { - State Forester as
standards applying to all operations in the state, including
those on forestland owned by the state or any political
subdivision thereof. Pursuant to ORS 527.710 the State Board of
Forestry - } { + Director of the Oregon Department of Natural
Resources. The Oregon Natural Resources Commission + } shall
adopt, repeal or amend forest practice rules as necessary to be
consistent with and to implement the standards established in ORS
527.740 to 527.750. Except as provided in ORS 527.714, nothing in
ORS 468B.100 to 468B.110, 477.562, 527.620, 527.670, 527.690,
527.710, 527.715, 527.722, 527.724 and 527.736 to 527.770 shall
affect the powers and duties of the { - board to adopt, or the
State Forester to administer, all other regulations pertaining to
forest practices - } { + commission or director to adopt or
administer all other regulations pertaining to natural resources
+ }under applicable state law.
(2) Nothing in ORS 527.740 to 527.750 is intended to apply to
cutting of trees that is for growth enhancement treatments, as
defined by the { - State Forester - } { + director + }, such
as thinning or precommercial thinning.
(3) The { - State Board of Forestry - } { + commission + }
may modify or waive the limitations and requirements of ORS
527.676, 527.740, 527.750 and 527.755 for the purposes of a bona
fide research project conducted by:
(a) A federal agency;
(b) Agencies of the executive department, as defined in ORS
174.112;
(c) An educational institution; or
(d) A private landowner.
(4) The { - State Board of Forestry - } { + commission + }
may agree as a term of a stewardship agreement entered into under
ORS 541.423 to modify or waive the limitations and requirements
of ORS 527.676, 527.740, 527.750 and 527.755.
(5) The { - State Board of Forestry - } { + commission + }
may modify or waive the limitations and requirements of ORS
527.676, 527.740, 527.750 and 527.755 for the purpose of an
operation for the planting, growing, managing or harvesting of
hardwood timber, including but not limited to hybrid cottonwood,
if:
(a) The timber is grown on land that has been prepared by
intensive cultivation methods and is cleared of competing
vegetation for at least three years after planting;
(b) The timber is harvested on a rotation cycle of more than 12
years and less than 20 years after planting; and
(c) The timber is subject to intensive agricultural practices,
including but not limited to fertilization, cultivation,
irrigation, insect control and disease control.
SECTION 2020. ORS 527.740 is amended to read:
527.740. (1) No harvest type 3 unit within a single ownership
shall exceed 120 acres in size, except as provided in ORS
527.750.
(2) No harvest type 3 unit shall be allowed within 300 feet of
the perimeter of a prior harvest type 3 unit within a single
ownership if the combined acreage of the harvest type 3 areas
subject to regulation under the Oregon Forest Practices Act would
exceed 120 acres in size, unless the prior harvest type 3 unit
has been reforested as required by all applicable regulations
and:
(a) At least the minimum tree stocking required by rule is
established per acre; and either
(b) The resultant stand of trees has attained an average height
of at least four feet; or
(c) At least 48 months have elapsed since the stand was created
and it is 'free to grow' as defined by the { - State Board of
Forestry - } { + Oregon Natural Resources Commission + }.
(3) Any acreage attributable to riparian areas or to resource
sites listed in ORS 527.710 (3) that is located within a harvest
unit shall not be counted in calculating the size of a harvest
type 3 unit.
(4) The provisions of this section shall not apply when the
land is being converted to managed conifers or managed hardwoods
from brush or hardwood stands that contain less than 80 square
feet of basal area per acre of trees 11 inches DBH or greater or
when the harvest type 3 results from disasters such as fire,
insect infestation, disease, windstorm or other occurrence that
the { - State Forester - } { + Director of the Oregon
Department of Natural Resources + } determines was beyond the
landowner's control and has substantially impaired productivity
or safety on the unit or jeopardizes nearby forestland. The prior
approval of the { - State Forester - } { + director + } shall
be required for such conversion or harvest type 3 operations that
exceed 120 acres in size.
(5) The provisions of this section do not apply to any
operation where the operator demonstrates to the { - State
Forester - } { + director + } that:
(a) The trees are subject to a cutting right created by written
contract prior to October 1, 1990, which provides that the trees
must be paid for regardless of whether the trees are cut, or
subject to a cutting right created by reservation in a deed prior
to October 1, 1990; and
(b) If the provisions of this section were applied, the cutting
right would expire before all the trees subject to the cutting
right could reasonably be harvested.
SECTION 2021. ORS 527.745 is amended to read:
527.745. (1) The { - State Board of Forestry - } { + Oregon
Natural Resources Commission + } shall adopt standards for the
reforestation of harvest type 1 and harvest type 3. Unless the
{ - board - } { + commission + } makes the findings for
alternate standards under subsection (2) of this section, the
standards for the reforestation of harvest type 1 and harvest
type 3 shall include the following:
(a) Reforestation, including site preparation, shall commence
within 12 months after the completion of harvest and shall be
completed by the end of the second planting season after the
completion of harvest. By the end of the fifth growing season
after planting or seeding, at least 200 healthy conifer or
suitable hardwood seedlings { + , + } or { + a + } lesser number
as permitted by the { - board - } { + commission + } by rule,
shall be established per acre, well-distributed over the area,
{ - which - } { + that + } are 'free to grow ' as defined by
the { - board - } { + commission + }.
(b) Landowners may submit plans for alternate practices that do
not conform to the standards established under paragraph (a) of
this subsection or the alternate standards adopted under
subsection (2) of this section, including but not limited to
variances in the time in which reforestation is to be commenced
or completed or plans to reforest sites by natural reforestation.
Such alternate plans may be approved if the { - State
Forester - } { + Director of the Oregon Department of Natural
Resources + } determines that the plan will achieve equivalent or
better regeneration results for the particular conditions of the
site, or the plan carries out an authorized research project
conducted by a public agency or educational institution.
(2) The { - board - } { + commission + }, by rule, may
establish alternate standards for the reforestation of harvest
type 1 and harvest type 3, in lieu of the standards established
in subsection (1) of this section, but in no case can the
{ - board - } { + commission + } require the establishment of
more than 200 healthy conifer or suitable hardwood seedlings per
acre. Such alternate standards may be adopted upon finding that
the alternate standards will better
{ - assure - } { + ensure + } the continuous growing and
harvesting of forest tree species and the maintenance of
forestland for such purposes, consistent with sound management of
soil, air, water, fish and wildlife resources based on one or
more of the following findings:
(a) Alternate standards are warranted based on scientific data
concerning biologically effective regeneration;
(b) Different standards are warranted for particular geographic
areas of the state due to variations in climate, elevation,
geology or other physical factors; or
(c) Different standards are warranted for different tree
species, including hardwoods, and for different growing site
conditions.
(3) Pursuant to ORS 527.710, the { - board - }
{ + commission + } may adopt definitions, procedures and further
regulations to implement the standards established under
subsection (1) of this section, without making the findings
required in subsection (2) of this section, if those procedures
or regulations are consistent with the standards established in
subsection (1) of this section.
(4) The { - board - } { + commission + } shall encourage
planting of disease and insect resistant species in sites
infested with root pathogens or where planting of susceptible
species would significantly facilitate the spread of a disease or
insect pest and there are immune or more tolerant commercial
species available which are adapted to the site.
(5) Notwithstanding subsections (1), (2) and (3) of this
section, in order to remove potential disincentives to the
conversion of underproducing stands, as defined by the
{ - board - } { + commission + }, or the salvage of stands
that have been severely damaged by wildfire, insects, disease or
other factors beyond the landowner's control, the { - State
Forester - } { + director + } may suspend the reforestation
requirements for specific harvest type 1 or harvest type 3 units
in order to take advantage of the Forest Resource Trust
provisions, or other cost-share programs administered by the
{ - State Forester or where the State Forester - }
{ + director or where the director + } is the primary technical
adviser. Such suspension may occur only on an individual case
basis, in writing, based on a determination by the { - State
Forester - } { + director + } that the cost of harvest
preparation, harvest, severance and applicable income taxes,
logging, site preparation, reforestation and any other measures
necessary to establish a free to grow forest stand will likely
exceed the gross revenues of the harvest. The { - board - }
{ + commission + } shall adopt rules implementing this
subsection establishing the criteria for and duration of the
suspension of the reforestation requirements.
SECTION 2022. ORS 527.750 is amended to read:
527.750. (1) Notwithstanding the requirements of ORS 527.740, a
harvest type 3 unit within a single ownership that exceeds 120
acres but does not exceed 240 acres may be approved by the
{ - State Forester - } { + Director of the Oregon Department
of Natural Resources + } if all the requirements of this section
and any additional requirements established by the { - State
Board of Forestry - } { + Oregon Natural Resources
Commission + } are met. Proposed harvest type 3 units that are
within 300 feet of the perimeter of a prior harvest type 3 unit,
and that would result in a total combined harvest type 3 area
under a single ownership exceeding 120 acres but not exceeding
240 acres, may be approved by the { - State Forester - } { +
director + } if the additional requirements are met for the
combined area. No harvest type 3 unit within a single ownership
shall exceed 240 contiguous acres. No harvest type 3 unit shall
be allowed within 300 feet of the perimeter of a prior harvest
type 3 unit within a single ownership if the combined acreage of
the areas subject to regulation under the Oregon Forest Practices
Act would exceed 240 acres, unless:
(a) The prior harvest type 3 unit has been reforested by all
applicable regulations;
(b) At least the minimum tree stocking required by rule is
established per acre; and
(c)(A) The resultant stand of trees has attained an average
height of at least four feet; or
(B) At least 48 months have elapsed since the stand was created
and it is 'free to grow' as defined by the { - board - } { +
commission + }.
(2) The requirements of this section are in addition to all
other requirements of the Oregon Forest Practices Act and the
rules adopted thereunder. The requirements of this section shall
be applied in lieu of such other requirements only to the extent
the requirements of this section are more stringent. Nothing in
this section shall apply to operations conducted under ORS
527.740 (4) or (5).
(3) The { - board - } { + commission + } shall require that
a plan for an alternate practice be submitted prior to approval
of a harvest type 3 operation under this section. The
{ - board - } { + commission + } may establish by rule any
additional standards applying to operations under this section.
(4) The { - State Forester - } { + director + } shall
approve the harvest type 3 operation if the proposed operation
would provide better overall results in meeting the requirements
and objectives of the Oregon Forest Practices Act.
(5) The { - board - } { + commission + } shall specify by
rule the information to be submitted for approval of harvest type
3 operations under this section, including evidence of past
satisfactory compliance with the Oregon Forest Practices Act.
SECTION 2023. ORS 527.755 is amended to read:
527.755. (1) The following highways are hereby designated as
scenic highways for purposes of the Oregon Forest Practices Act:
(a) Interstate Highways 5, 84, 205, 405; and
(b) State Highways 6, 7, 20, 18/22, 26, 27, 30, 31, 34, 35, 36,
38, 42, 58, 62, 66, 82, 97, 101, 126, 138, 140, 199, 230, 234 and
395.
(2) The purpose of designating scenic highways is to provide a
limited mechanism that maintains roadside trees for the enjoyment
of the motoring public while traveling through forestland,
consistent with ORS 527.630, safety and other practical
considerations.
(3) The { - State Board of Forestry - } { + Oregon Natural
Resources Commission + }, in consultation with the Department of
Transportation, shall establish procedures and regulations as
necessary to implement the requirements of subsections (4), (5)
and (6) of this section, consistent with subsection (2) of this
section, including provisions for alternate plans. Alternate
plans that modify or waive the requirements of subsection (4),
(5) or (6) of this section may be approved when, in the judgment
of the { - State Forester - } { + Director of the Oregon
Department of Natural Resources + }, circumstances exist such as:
(a) Modification or waiver is necessary to maintain motorist
safety, protect improvements such as dwellings and bridges, or
protect forest health;
(b) Modification or waiver will provide additional scenic
benefits to the motoring public, such as exposure of distant
scenic vistas;
(c) Trees that are otherwise required to be retained will not
be visible to motorists;
(d) The operation involves a change of land use that is
inconsistent with maintaining a visually sensitive corridor; or
(e) The retention of timber in a visually sensitive corridor
will result in severe economic hardship for the owner because all
or nearly all of the owner's property is within the visually
sensitive corridor.
(4)(a) For harvest operations within a visually sensitive
corridor, at least 50 healthy trees of at least 11 inches DBH, or
that measure at least 40 square feet in basal area, shall be
temporarily left on each acre.
(b) Overstory trees initially required to be left under
paragraph (a) of this subsection may be removed when the
reproduction understory reaches an average height of at least 10
feet and has at least the minimum number of stems per acre of
free to grow seedlings or saplings required by the
{ - board - } { + commission + } for reforestation, by rule.
(c) Alternatively, when the adjacent stand, extending from 150
feet from the outermost edge of the roadway to 300 feet from the
outermost edge of the roadway, has attained an average height of
at least 10 feet and has at least the minimum number of stems per
acre of free to grow seedlings or saplings required by the
{ - board - } { + commission + } for reforestation, by rule,
or at least 40 square feet of basal area per acre, no trees are
required to be left in the visually sensitive corridor, or trees
initially required to be left under paragraph (a) of this
subsection may be removed. When harvests within the visually
sensitive corridor are carried out under this paragraph, the
adjacent stand, extending from 150 feet from the outermost edge
of the roadway to 300 feet from the outermost edge of the
roadway, shall not be reduced below the minimum number of stems
per acre of free to grow seedlings or saplings at least 10 feet
tall required by the { - board - } { + commission + } for
reforestation, by rule, or below 40 square feet of basal area per
acre until the adjacent visually sensitive corridor has been
reforested as required under subsection (6) of this section and
the stand has attained an average height of at least 10 feet and
has at least the minimum number of stems per acre.
(5) Harvest areas within a visually sensitive corridor shall be
cleared of major harvest debris within 30 days of the completion
of the harvest, or within 60 days of the cessation of active
harvesting activity on the site, regardless of whether the
harvest operation is complete.
(6) Notwithstanding the time limits established in ORS 527.745
(1)(a), when harvesting within a visually sensitive corridor
results in a harvest type 1 or harvest type 3, reforestation
shall be completed by the end of the first planting season after
the completion of the harvest. All other provisions of ORS
527.745 shall also apply to harvest type 1 or harvest type 3
within visually sensitive corridors.
(7) Landowners and operators shall not be liable for injury or
damage caused by trees left within the visually sensitive
corridor for purposes of fulfilling the requirements of this
section, when carried out in compliance with the provisions of
the Oregon Forest Practices Act.
(8) The following are exempt from this section:
(a) Harvest on single ownerships less than five acres in size;
(b) Harvest within an urban growth boundary, as defined in ORS
195.060; and
(c) Harvest within zones designated for rural residential
development pursuant to an exception adopted to the statewide
land use planning goals under ORS 197.732.
SECTION 2024. ORS 527.760 is amended to read:
527.760. (1) The { - State Board of Forestry - } { + Oregon
Natural Resources Commission + } shall review its rules governing
changes in land use and adopt or amend rules as necessary to
assure that only bona fide, established and continuously
maintained changes from forest uses are provided an exemption
from reforestation requirements. The { - board - }
{ + commission + } shall set specific time periods for the
completion of land use conversions. Among other factors, the
{ - board - } { + commission + } shall condition exemptions
from reforestation requirements upon:
(a) Demonstrating the intended change in land use is authorized
under local land use and zoning ordinances, including obtaining
and maintaining all necessary land use or construction permits
and approvals for the intended change in land use;
(b) Demonstrating progress toward the change in land use within
the time required for planting of trees, and substantial
completion and continuous maintenance of the change in land use
in a time certain;
(c) Allowing an exemption for only the smallest land area
necessary to carry out the change in land use, and requiring that
additional land area within the harvest unit remains subject to
all applicable reforestation requirements; and
(d) Allowing an exemption only to the extent that the proposed
land use is not compatible with the maintenance of forest cover.
(2) The { - board - } { + commission + } may require that,
prior to commencing an operation where a change in land use is
proposed, a bond, cash deposit, irrevocable letter of credit or
other security be filed with the { - State Forester in an
amount determined by the State Forester - } { + Director of the
Oregon Department of Natural Resources in an amount determined by
the director + } sufficient to cover the cost of site preparation
and reforestation for the area subject to an exemption from
reforestation due to a change in land use, and shall require that
provisions be made for the administration and collection on such
bond or security deposit in the event that the change in land use
is not established or continuously maintained within a time
certain.
(3) Nothing in this section is intended to exempt any change in
land use from, nor affect the applicability and administration
of, any planning, zoning or permitting requirements provided
under state or local laws or regulations.
SECTION 2025. ORS 527.765 is amended to read:
527.765. (1) The { - State Board of Forestry - } { + Oregon
Natural Resources Commission + } shall establish best management
practices and other rules applying to forest practices as
necessary to insure that to the maximum extent practicable
nonpoint source discharges of pollutants resulting from forest
operations on forestlands do not impair the achievement and
maintenance of water quality standards established by the
Environmental Quality Commission for the waters of the state.
Such best management practices shall consist of forest practices
rules adopted to prevent or reduce pollution of waters of the
state. Factors to be considered by the
{ - board - } { + Oregon Natural Resources Commission + } in
establishing best management practices shall include, where
applicable, but not be limited to:
(a) Beneficial uses of waters potentially impacted;
(b) The effects of past forest practices on beneficial uses of
water;
(c) Appropriate practices employed by other forest managers;
(d) Technical, economic and institutional feasibility; and
(e) Natural variations in geomorphology and hydrology.
(2) The { - board - } { + Oregon Natural Resources
Commission + } shall consult with the Environmental Quality
Commission in adoption and review of best management practices
and other rules to address nonpoint source discharges of
pollutants resulting from forest operations on forestlands.
(3)(a) Notwithstanding ORS 183.310 (8), upon written petition
for rulemaking under ORS 183.390 of any interested person or
agency, the { - board - } { + Oregon Natural Resources
Commission + } shall review the best management practices adopted
pursuant to this section. In addition to all other requirements
of law, the petition must allege with reasonable specificity that
nonpoint source discharges of pollutants resulting from forest
operations being conducted in accordance with the best management
practices are a significant contributor to violations of such
standards.
(b) Except as provided in paragraph (c) of this subsection, if
the { - board - } { + Oregon Natural Resources Commission + }
determines that forest operations being conducted in accordance
with the best management practices are neither significantly
responsible for particular water quality standards not being met
nor are a significant contributor to violations of such
standards, the
{ - board - } { + commission + } shall issue an order
dismissing the petition.
(c) If the petition for review of best management practices is
made by the Environmental Quality Commission, the { - board - }
{ + Oregon Natural Resources Commission + } shall not terminate
the review without the concurrence of the { + Environmental
Quality + } Commission, unless the { - board - } { + Oregon
Natural Resources Commission + } commences rulemaking in
accordance with paragraph (e) of this subsection.
(d) If a petition for review is dismissed, upon conclusion of
the review, the { - board - } { + Oregon Natural Resources
Commission + } shall issue an order that includes findings
regarding specific allegations in the petition and shall state
the { - board's - } { + commission's + } reasons for any
conclusions to the contrary.
(e) If, pursuant to review, the { - board - } { + Oregon
Natural Resources Commission + } determines that best management
practices should be reviewed, the { - board - }
{ + commission + } shall commence rulemaking proceedings for
that purpose. Rules specifying the revised best management
practices must be adopted not later than two years from the
filing date of the petition for review unless the { - board,
with concurrence of the Environmental Quality Commission, - }
{ + commission + } finds that special circumstances require
additional time.
(f) Notwithstanding the time limitation established in
paragraph (e) of this subsection, at the request of the
Environmental Quality Commission, the { - board - }
{ + Oregon Natural Resources Commission + } shall take action as
quickly as practicable to prevent significant damage to
beneficial uses identified by the
{ - commission while the board - } { + Environmental Quality
Commission while the Oregon Natural Resources Commission + } is
revising its best management practices and rules as provided for
in this section.
SECTION 2026. ORS 527.770 is amended to read:
527.770. A forest operator conducting, or in good faith
proposing to conduct, operations in accordance with best
management practices currently in effect shall not be considered
in violation of any water quality standards. When the { - State
Board of Forestry - } { + Oregon Natural Resources
Commission + } adopts new best management practices and other
rules applying to forest operations, such rules shall apply to
all current or proposed forest operations upon their effective
dates. However, nothing in this section prevents enforcement of
water quality standards against a forest operator conducting
operations after the time provided in ORS 527.765 (3)(e) for
adoption of revised best management practices if the
{ - board - } { + commission + } either has not adopted
revised management practices or has not made a finding that such
revised best management practices are not required.
SECTION 2027. ORS 527.992 is amended to read:
527.992. (1) In addition to any other penalty provided by law,
any person who fails to comply with any of the following may
incur a civil penalty in the amount adopted under ORS 527.685:
(a) The requirements of ORS 527.670, 527.676, 527.740, 527.750
or 527.755.
(b) The terms or conditions of any order of the { - State
Forester - } { + Director of the Oregon Department of Natural
Resources + } issued in accordance with ORS 527.680.
(c) Any rule or standard of the { - State Board of
Forestry - } { + Oregon Natural Resources Commission + }
adopted or issued pursuant to ORS 527.710.
(d) Any term or condition of a written waiver { - , - } or
prior approval granted by the { - State Forester - }
{ + director + } pursuant to the rules adopted under ORS
527.710.
(2) Imposition or payment of a civil penalty under this section
shall not be a bar to actions alleging trespass under ORS
105.810, nor to actions under ORS 161.635 or 161.655 seeking to
recover an amount based on the gain resulting from individual or
corporate criminal violations.
SECTION 2028. ORS 530.005 is amended to read:
530.005. As used in ORS 530.010 to 530.170 and 530.210 to
530.280:
(1) 'Bond-related costs' means:
(a) The costs and expenses of issuing, administering and
maintaining bonds, including but not limited to paying principal
and interest, and premiums if any, on general obligation or
revenue bonds, redeeming general obligation or revenue bonds,
paying amounts due in connection with credit enhancements or any
instruments authorized by ORS 286A.580 (6) and paying the
administrative costs and expenses of the State Treasurer and the
{ - State Forestry Department - } { + Oregon Department of
Natural Resources + }, including costs of consultants or advisors
retained by the treasurer or the department for the bonds;
(b) The costs of funding any bond reserves;
(c) Capitalized interest for bonds;
(d) Rebates or penalties due to the United States in connection
with the bonds; and
(e) Any other costs or expenses that the State Treasurer or the
{ - State Forestry - } department determines are necessary or
desirable in connection with issuing, administering or
maintaining the bonds.
(2) 'Reforestation' means to increase tree stocking to a level
that meets or exceeds the stocking standards relating to
productivity specified by the { - State Board of Forestry - }
{ + Oregon Natural Resources Commission + } by rule.
SECTION 2029. ORS 530.010 is amended to read:
530.010. (1) { - The State Board of Forestry, referred to in
this chapter as the board, - } In the name of the State of
Oregon, { + the Oregon Natural Resources Commission + } may
acquire, by purchase, donation, devise or exchange from any
public, quasi-public or private owner, lands which by reason of
their location, topographical, geological or physical
characteristics are chiefly valuable for the production of forest
crops, watershed protection and development, erosion control,
grazing, recreation or forest administrative purposes.
(2) The { - board - } { + commission + } shall not acquire
any land without prior approval, duly made and entered, of the
county court or board of county commissioners of the county in
which the lands are situated.
(3) Lands acquired under the provisions of this section shall
be designated as state forests.
SECTION 2030. ORS 530.020 is amended to read:
530.020. Title to all lands acquired by the { - State Board
of Forestry - } { + Oregon Natural Resources Commission + }
under ORS 530.010 shall be free and clear of all encumbrances
except easements of rights of way and reservations or exceptions
of gas, oil, coal, mineral and timber rights, unless the
{ - board - } { + commission + } determines other encumbrances
will not unduly limit the management of the lands consistent with
ORS 530.010 to 530.170. All titles shall be approved by the
Attorney General before conveyance is accepted. However, the
Attorney General may approve title to lands proposed to be
acquired from counties under the provisions of ORS 530.030 or
proposed to be acquired by donation or devise when, in the
opinion of the Attorney General, existing defects of title are of
formal nature and may be cured by suit to quiet title. In case of
acquisition of lands with defective title, the Attorney General
may institute suit to quiet title to such lands, and all costs in
connection therewith shall be a proper charge against the funds
of the { - board - } { + commission + }. All deeds,
abstracts, title insurance policies, and other evidences of title
to lands acquired under ORS 530.010 to 530.040 shall be deposited
with the Secretary of State. All deeds shall promptly be
recorded in the county in which the lands are situated.
SECTION 2031. ORS 530.025 is amended to read:
530.025. For acquisitions made by the { - State Board of
Forestry - } { + Oregon Natural Resources Commission + } on or
after July 28, 2009:
(1) The { - board - } { + commission + } may hold and
manage lands alone or in cooperation with other entities,
including but not limited to community forest authorities under
ORS 530.600 to 530.628.
(2) The { - board - } { + commission + } may acquire lands
or partial interest in lands, including but not limited to
conservation easements.
(3) Subject to any covenants under ORS 530.130 or 530.147, the
{ - board - } { + commission + } may sell lands or partial
interest in lands, including but not limited to conservation
easements, to other parties if the { - board - }
{ + commission + } determines that the other parties are better
situated to manage the lands for the long term.
SECTION 2032. ORS 530.030 is amended to read:
530.030. (1) The county court or board of county commissioners
of any county may convey to the state for state forests any lands
heretofore or hereafter acquired by such county through
foreclosure of tax liens, or otherwise, that are within the
classification of lands authorized to be acquired under ORS
530.010, if the { - State Board of Forestry - } { + Oregon
Natural Resources Commission + } deems such lands necessary or
desirable for acquisition, in consideration of the payment to
such county of the percentage of revenue derived from such lands
as provided in ORS 530.110. In connection with any such
conveyance, the { - State Board of Forestry - }
{ + commission + } shall have authority to make equitable
adjustments with any county of accrued delinquent fire patrol
liens on lands heretofore or hereafter acquired by such county by
foreclosure of tax liens.
(2) As to such lands acquired by the { - State Board of
Forestry - } { + commission + } with title to the timber
remaining in the county for a designated period of time, the
{ - State Forester - } { + Director of the Oregon Department
of Natural Resources + } may enter into contracts with the county
to supervise the removal and sale of such timber, and under such
contracts the gross proceeds of the sale thereof shall be
disposed of as follows:
(a) Ten percent of such gross proceeds shall be { - paid into
the State Treasury and credited to the State Forestry Department
Account and shall be used exclusively - } { + deposited in the
Oregon Natural Resources Fund. Moneys deposited in the fund under
this paragraph are continuously appropriated to the Oregon
Department of Natural Resources + } for the purposes and under
the limitations set out in ORS 530.110 (1)(a).
(b) A percentage of such gross proceeds shall be accepted by
the { - State Forester - } { + director + }, pursuant to
written contract with the county authority, as compensation for
the supervision and management of county-owned timber. The moneys
so derived shall be
{ - paid into the State Treasury and credited to the State
Forestry Department Account and shall be used exclusively for - }
{ + deposited in the Oregon Natural Resources Fund. Moneys
deposited in the fund under this paragraph are continuously
appropriated to the department for + } the supervision and
management of state forests acquired pursuant to ORS 530.010.
SECTION 2033. ORS 530.040 is amended to read:
530.040. (1) It is desirable that lands acquired under the
provisions of ORS 530.010 shall be consolidated in areas wherever
possible through exchanges of land. It is recognized that the
management of state forests will be more economically feasible
through such consolidation.
(2) In order to accomplish the objectives of subsection (1) of
this section, the { - State Board of Forestry - } { + Oregon
Natural Resources Commission + } may exchange any land acquired
under the provisions of ORS 530.010, or may exchange the timber
on such land, for land of approximately equal aggregate value,
situated in the same county, when such exchange is in furtherance
of the purposes of ORS 530.010. However, the { - State Board of
Forestry - } { + commission + } may exchange land or timber
situated in one county or counties for land situated in another
county or counties if such exchange is first approved by the
county court or board of county commissioners of each county
involved. Either party to any such exchange may make reservations
of easements, rights of use and other interests and rights. Under
the authority granted in this section, the { - State Board of
Forestry - } { + commission + } may provide or receive, in
addition to land to be exchanged, a monetary consideration where
necessary to make the values comply with this subsection.
(3) Before making any such exchange, the { - State Board of
Forestry - } { + commission + } shall hold a hearing thereon at
the courthouse of the county in which such lands are situated and
shall give notice of the time and place thereof by publication in
two successive issues of a newspaper of general circulation
published in such county. The notice shall contain a description
of the lands to be given and to be received in the proposed
exchange. However, no such exchange shall be made until the title
to the lands to be received has been approved by the Attorney
General.
(4) All lands received in exchange shall have the same status
and be subject to the same provisions of law as the lands given
in exchange therefor.
SECTION 2034. ORS 530.050 is amended to read:
530.050. { - Under the authority and direction of the State
Board of Forestry except as otherwise provided for the sale of
forest products, the State Forester - } { + Except as otherwise
provided for the sale of forest products, the Director of the
Oregon Department of Natural Resources + } shall manage the lands
acquired pursuant to ORS 530.010 to 530.040 so as to secure the
greatest permanent value of those lands to the state, and to that
end may:
(1) Protect the lands from fire, disease and insect pests,
cooperate with the counties and with persons owning lands within
the state in the protection of the lands and enter into all
agreements necessary or convenient for the protection of the
lands.
(2) Sell forest products from the lands, and execute mining
leases and contracts as provided for in ORS 273.551.
(3) Enter into and administer contracts for the sale of timber
from lands owned or managed by the { - State Board of Forestry
and the State Forestry Department - } { + Oregon Department of
Natural Resources + }.
(4) Permit the use of the lands for other purposes, including
but not limited to forage and browse for domestic livestock, fish
and wildlife environment, landscape effect, protection against
floods and erosion, recreation, and protection of water supplies
when, in the opinion of the { - board - } { + director + },
the use is not detrimental to the best interest of the state.
(5) Grant easements, permits and licenses over, through and
across the lands. The { - State Forester - } { + director + }
may require and collect reasonable fees or charges relating to
the location and establishment of easements, permits and licenses
granted by the state over the lands. The fees and charges
collected shall be used exclusively for the expenses of locating
and establishing the easements, permits and licenses under this
subsection and shall be
{ - placed in the State Forestry Department Account - }
{ + deposited in the Oregon Natural Resources Fund + }.
(6) Require and collect fees or charges for the use of state
forest roads. The fees or charges collected shall be used
exclusively for purposes of maintenance and improvements of the
roads { - and shall be placed in the State Forestry Department
Account - } .
(7) Reforest the lands and cooperate with the counties, and
with persons owning timberlands within the state, in the
reforestation, and make all agreements necessary or convenient
for the reforestation.
(8) Require such undertakings as in the opinion of the
{ - board - } { + director + } are necessary or convenient to
secure performance of any contract entered into under the terms
of this section or ORS 273.551.
(9) Sell rock, sand, gravel, pumice and other such materials
from the lands. The sale may be negotiated without bidding,
provided the appraised value of the materials does not exceed
$2,500.
(10) Enter into agreements, each for not more than 10 years
duration, for the production of minor forest products.
(11) Establish a forestry carbon offset program to market,
register, transfer or sell forestry carbon offsets. In
establishing the program, the { - forester - }
{ + director + } may:
(a) Execute any contracts or agreements necessary to create
opportunities for the creation of forestry carbon offsets; and
(b) Negotiate prices that are at, or greater than, fair market
value for the transfer or sale of forestry carbon offsets.
(12) Do all things and make all rules, not inconsistent with
law, necessary or convenient for the management, protection,
utilization and conservation of the lands.
{ + (12) Moneys collected pursuant to subsection (6) of this
section shall be deposited in the Oregon Natural Resources Fund.
Moneys deposited in the fund under this subsection are
continuously appropriated to the department for the purpose of
carrying out the provisions of this section. + }
SECTION 2035. ORS 530.055 is amended to read:
530.055. Except as limited in this section but subject to
separate sale of forest products under ORS 530.059, lands
acquired under ORS 530.010 to 530.040 may be leased by the
{ - State Forester to any person when approved by the State
Board of Forestry and for purposes deemed by the board - }
{ + Director of the Oregon Department of Natural Resources when
deemed by the director or the Oregon Natural Resources
Commission + } to be more in the public interest than the
purposes for which the land was acquired.
SECTION 2036. ORS 530.059 is amended to read:
530.059. (1) Before offering any forest products for sale under
authority of ORS 530.050 or 530.500, the { - State Forester - }
{ + Director of the Oregon Department of Natural Resources + }
shall cause the forest products to be appraised. Should the
appraised value of the forest products be in excess of $25,000,
the { - State Forester - } { + director + } shall not sell
the same to a private person, firm or corporation, except after
giving notice of the sale as required by this section, and
affording an opportunity for competitive bidding either by public
auction or through sealed bids, or a combination of both;
provided, however, that such notice and opportunity for
competitive bidding will not be required for sales in connection
with:
(a) Experimental or research projects in the field of
forestland management or forest product utilization.
(b) The removal, injury or destruction of forest products
necessitated by any grant of easement or right of way, or
necessitated by a permit or license to use a right of way,
including trees which may endanger the use of such easement or
way.
(c) The removal of forest products with an appraised value of
less than $100,000 that, as a result of an act of nature or other
unforeseen circumstance:
(A) Pose a threat to the health of the forests, waterways or
forest road infrastructures; or
(B) Will lose value as a result of potential theft.
(d) The removal of forest products with an appraised value of
less than $100,000 to facilitate the development, placement or
maintenance of forest road infrastructures.
(2) The { - State Forester - } { + director + } shall give
the notice required by subsection (1) of this section by mail to
all persons requesting such notice and in such other media of
communication as the { - State Forester - } { + director + }
may deem advisable. The { - State Forester - }
{ + director + } shall maintain a mailing list with the names
and addresses of persons who have requested to receive
{ - State Forestry Department - } notices of timber sales { +
from the Oregon Department of Natural Resources + }. The notice
shall describe the forest products to be sold and the land on
which such products are situated, state the minimum price at
which the same may be sold, and contain a brief statement of the
terms of the sale. As a provision of each sale, the { - State
Forester - } { + director + } shall reserve the right to accept
or reject any or all bids.
(3) Prior to or at the time the { - State Forester - }
{ + director + } receives bids, each bidder shall furnish the
{ - State Forester - } { + director + } with a certified
check, cashier's check, money order, surety bond, cash deposit,
assignment of surety, irrevocable letters of credit or other
securities as determined acceptable by the { - State
Forester - } { + director + } in an amount designated by the
{ - State Forester - } { + director + } but said amount shall
not exceed 10 percent of the minimum price of the forest products
to be sold, which check, order or deposit, in the case of the
successful bidder, shall be retained by the { - State
Forester - } { + director + } as a credit toward payment of the
purchase price of the forest products sold, and which, in the
case of the unsuccessful bidders, shall be returned to them after
determination of the successful bid. Any checks, bonds or orders
furnished under this subsection shall be made payable to the
State of Oregon.
(4) The { - State Forester - } { + director + } is
authorized to require and accept a surety bond, cash deposit,
assignment of surety, irrevocable letters of credit or other
securities as determined acceptable by the { - State
Forester - } { + director + }. Claims against such bond shall
be made to the { - State Forester - } { + director + } for
determination. If the claim is disputed, the { - forester - }
{ + director + } may request settlement of the claim through
compromise or mediation or require the claim to be litigated.
(5) If the provisions of this section have been complied with,
and no satisfactory bid has been received, or the bidder fails to
complete the purchase, the { - State Forester - }
{ + director + } may, at any time, during a period of six months
after the advertised date of sale, sell the forest products in
such manner as the
{ - forester - } { + director + } deems appropriate, but the
sale price shall not be less than the minimum terms offered in
the notice of sale or the highest bid received, whichever is the
larger amount.
SECTION 2037. ORS 530.065 is amended to read:
530.065. (1) During the period of a timber sale contract made
under ORS 530.059, either party may propose to change or modify
the terms of the contract if unforeseen circumstances develop. As
used in this subsection, 'unforeseen circumstances' means acts of
nature or other unforeseen circumstances or conditions that:
(a) Affect the nature or scope of the work to be performed or
volume to be harvested under the terms of the sale contract made
by the { - State Forester - } { + Director of the Oregon
Department of Natural Resources + }; or
(b) Require additional work or harvest in an area adjacent to a
timber sale made by the { - State Forester - }
{ + director + }.
(2) The { - State Forester - } { + director + } is hereby
authorized to change or modify the terms or conditions of the
contract in the event of unforeseen circumstances requiring such
change or modification under subsection (1) of this section only
when:
(a) Such change or modification is in the best interest of the
State of Oregon; and
(b) The purchaser of the timber sale agrees that the proposed
change or modification will maintain an equitable contractual
relationship between the parties.
SECTION 2038. ORS 530.075 is amended to read:
530.075. (1) Notwithstanding ORS chapter 275 or any other law,
deeds of conveyance or other instruments transferring county
forests, public parks or recreational areas, from a county to the
State of Oregon, either acting by and through or for the use and
benefit of the { - State Board of Forestry - } { + Oregon
Natural Resources Commission + }, are validated and shall be
conclusive evidence of the transfer of such lands from the county
to the state.
(2) The { - State Board of Forestry - } { + commission + }
shall use, manage and develop such lands for the purposes
designated in ORS 275.320 if such lands are suitable for such
purposes; otherwise, the lands shall be used for the purposes
stated in ORS 530.010 and any revenue derived from the sale of
forest products from such lands shall be disposed of in
accordance with the provisions of ORS 530.110 (2). In other
instances where the county received title to the land from a
grantor with the provision that the land be used for particular
purposes, this section shall not be construed to obviate such
purposes.
{ + NOTE: + } Section 2039 was deleted. Subsequent sections
were not renumbered.
SECTION 2040. ORS 530.110 is amended to read:
530.110. (1) All revenues derived from lands acquired without
cost to the state, or acquired from counties pursuant to ORS
530.030, shall be { - paid into the State Treasury and credited
to the State Forestry Department Account and shall be used in
accordance with the following distribution - } { + deposited in
the Oregon Natural Resources Fund and distributed in the
following amounts + }:
(a) Fifteen percent shall be credited to the State Forests
Protection Subaccount of the { - State Forestry Department
Account - } { + Oregon Natural Resources Fund + } until the
amount in such subaccount reaches $475,000. Thereafter, the
revenues shall be disposed of as stated in paragraphs (b) and (c)
of this subsection, unless needed to maintain the $475,000 level.
All moneys in the State Forests Protection Subaccount are
continuously appropriated to the { - State Forester who may use
such money under the following priorities - } { + Oregon
Department of Natural Resources for the following purposes + }:
(A) First, in addition to or in lieu of other moneys available,
to pay the cost of protection, as determined { + by the Director
of the Oregon Department of Natural Resources + } under ORS
477.270, for lands acquired under ORS 530.010 to 530.040.
(B) Second, to provide moneys needed for activities authorized
by subsection (3) of this section.
(C) From remaining moneys, to pay costs incurred in the
suppression of fire originating on or spreading from an operation
area, as defined in ORS 477.001, on state-owned forestland
acquired under ORS 530.010 to 530.040. The { - State
Forester - } { + director + } shall make payments { - with
approval of the State Board of Forestry - } for such fire
suppression costs, except that no payments shall be made for such
costs or portion thereof when other parties are responsible under
law or contracts for the payment of such costs.
(b) Seventy-five percent of all such revenues remaining after
the percentage disposed of as stated in paragraph (a) of this
subsection, shall be disposed of as provided in ORS 530.115.
(c) Twenty-five percent of all such revenues remaining after
the percentage disposed of as stated in paragraph (a) of this
subsection, shall be used for the purposes set out in subsection
(3) of this section.
(2) Except as provided in ORS 530.147 and { - ORS - }
530.280, all revenues from lands other than lands designated in
subsection (1) of this section, acquired under ORS 530.010 to
530.040, shall be
{ - paid into the State Treasury and credited to the State
Forestry Department Account and shall be used in accordance with
the following distribution - } { + deposited in the Oregon
Natural Resources Fund and distributed as follows + }:
(a) Until each legal subdivision of the lands has been credited
with an amount equal to the purchase price thereof, the revenues
shall reimburse the { - State Forestry Department Account - }
{ + Oregon Natural Resources Fund + }. If sufficient revenue to
reimburse the { - State Forestry Department Account - }
{ + fund + } is not generated from the purchased parcels within
five years from the date of acquisition, the { - State
Forester - } { + director + }, with the consent of the affected
county, shall deduct all or portions of the unreimbursed purchase
costs from the revenue distributed to that county in accordance
with ORS 530.115 (1). After the { - State Forestry Department
Account - } { + fund + } has been reimbursed for the purchase
price of the lands, the revenue from the lands shall be
distributed according to the formula specified in paragraphs (b),
(c) and (d) of this subsection.
(b) The percentage required under subsection (1)(a) of this
section shall be credited to the State Forests Protection
Subaccount, and the revenues shall be disposed of as stated in
paragraphs (c) and (d) of this subsection.
(c) Seventy-five percent of all such revenues remaining after
paragraphs (a) and (b) of this subsection have been complied
with, shall be disposed of as provided in ORS 530.115.
(d) Twenty-five percent of all such revenues remaining after
the percentage disposed of as stated in paragraphs (a) and (b) of
this subsection, shall be used for the purposes set out in
subsection (3) of this section.
(3) Unless otherwise consented to in advance and in writing by
the counties from which the state has acquired lands without cost
to the state or pursuant to ORS 530.130, the moneys in the
{ - State Forestry Department Account - } { + Oregon Natural
Resources Fund + } derived from those percentages of revenues set
out in subsections (1)(c) and (2)(d) of this section shall be
used exclusively for the following purposes and in the following
order:
(a) First, for the payment of bond-related costs for bonds
issued under ORS 530.140.
(b) Second, to the Forest Acquisition County Reimbursement Fund
to the extent necessary for paying tax revenue reimbursements to
counties under ORS 530.175.
(c) Third, for such other purposes as are necessary in carrying
out ORS 530.010 to 530.110.
SECTION 2041. ORS 530.110, as amended by section 11, chapter
831, Oregon Laws 2009, is amended to read:
530.110. (1) All revenues derived from lands acquired without
cost to the state, or acquired from counties pursuant to ORS
530.030, shall be { - paid into the State Treasury and credited
to the State Forestry Department Account and shall be used in
accordance with the following distribution - } { + deposited in
the Oregon Natural Resources Fund and distributed in the
following amounts + }:
(a) Fifteen percent shall be credited to the State Forests
Protection Subaccount of the { - State Forestry Department
Account - } { + Oregon Natural Resources Fund + } until the
amount in such subaccount reaches $475,000. Thereafter, the
revenues shall be disposed of as stated in paragraphs (b) and (c)
of this subsection, unless needed to maintain the $475,000 level.
All moneys in the State Forests Protection Subaccount are
continuously appropriated to the { - State Forester who may use
such money under the following priorities - } { + Oregon
Department of Natural Resources for the following purposes + }:
(A) First, in addition to or in lieu of other moneys available,
to pay the cost of protection, as determined { + by the Director
of the Oregon Department of Natural Resources + } under ORS
477.270, for lands acquired under ORS 530.010 to 530.040.
(B) Second, to provide moneys needed for activities authorized
by subsection (3) of this section.
(C) From remaining moneys, to pay costs incurred in the
suppression of fire originating on or spreading from an operation
area, as defined in ORS 477.001, on state-owned forestland
acquired under ORS 530.010 to 530.040. The { - State
Forester - } { + director + } shall make payments { - with
approval of the State Board of Forestry - } for such fire
suppression costs, except that no payments shall be made for such
costs or portion thereof when other parties are responsible under
law or contracts for the payment of such costs.
(b) Seventy-five percent of all such revenues remaining after
the percentage disposed of as stated in paragraph (a) of this
subsection, shall be disposed of as provided in ORS 530.115.
(c) Twenty-five percent of all such revenues remaining after
the percentage disposed of as stated in paragraph (a) of this
subsection, shall be used for the purposes set out in subsection
(3) of this section.
(2) Except as provided in ORS 530.147 and 530.280, all revenues
from lands other than lands designated in subsection (1) of this
section, acquired under ORS 530.010 to 530.040, shall be
{ - paid into the State Treasury and credited to the State
Forestry Department Account and shall be used in accordance with
the following distribution - } { + deposited in the Oregon
Natural Resources Fund and distributed as follows + }:
(a) Until each legal subdivision of the lands has been credited
with an amount equal to the purchase price thereof, the revenues
shall reimburse the { - State Forestry Department Account - }
{ + Oregon Natural Resources Fund + }. If sufficient revenue to
reimburse the { - State Forestry Department Account - }
{ + fund + } is not generated from the purchased parcels within
five years from the date of acquisition, the { - State
Forester - } { + director + }, with the consent of the affected
county, shall deduct all or portions of the unreimbursed purchase
costs from the revenue distributed to that county in accordance
with ORS 530.115 (1). After the { - State Forestry Department
Account - } { + fund + } has been reimbursed for the purchase
price of the lands, the revenue from the lands shall be
distributed according to the formula specified in paragraphs (b),
(c) and (d) of this subsection.
(b) The percentage required under subsection (1)(a) of this
section shall be credited to the State Forests Protection
Subaccount, and the revenues shall be disposed of as stated in
paragraphs (c) and (d) of this subsection.
(c) Seventy-five percent of all such revenues remaining after
paragraphs (a) and (b) of this subsection have been complied
with, shall be disposed of as provided in ORS 530.115.
(d) Twenty-five percent of all such revenues remaining after
the percentage disposed of as stated in paragraphs (a) and (b) of
this subsection, shall be used for the purposes set out in
subsection (3) of this section.
(3) Unless otherwise consented to in advance and in writing by
the counties from which the state has acquired lands without cost
to the state or pursuant to ORS 530.130, the moneys in the
{ - State Forestry Department Account - } { + Oregon Natural
Resources Fund + } derived from those percentages of revenues set
out in subsections (1)(c) and (2)(d) of this section shall be
used exclusively for the following purposes and in the following
order:
(a) First, for the payment of bond related costs for bonds
issued under ORS 530.140 prior to July 28, 2009.
(b) Second, to the Forest Acquisition County Reimbursement Fund
to the extent necessary for paying tax revenue reimbursements to
counties under ORS 530.175.
(c) Third, for such other purposes as are necessary in carrying
out ORS 530.010 to 530.110.
SECTION 2041a. ORS 530.115 is amended to read:
530.115. (1) Except as set forth in subsection (2) of this
section, moneys described in ORS 530.110 (1)(b) and (2)(c) shall
be credited to the county in which the lands are situated and
shall be paid quarterly to the county by a warrant drawn as
provided by law, pursuant to claim therefor, duly approved by the
{ - State Board of Forestry - } { + Oregon Natural Resources
Commission + }. Payment shall be made on or before the last day
of each month following the end of the calendar quarters ending
on March 31, June 30, September 30 and December 31. Money
received under this subsection by the county shall be applied in
the following order:
(a) The county general fund shall be reimbursed for all costs
and expenses incurred by the county in the maintenance and
supervision of such lands and in any suits by it to quiet its
title to lands conveyed to the state; provided that the proceeds
so applied shall not be less than 10 percent of the total
proceeds received.
(b) Twenty-five percent of the remainder of the money shall be
credited and paid into the county school fund created under ORS
328.005.
(c) The remainder of the money shall be by the county prorated
and apportioned to the various taxing districts in which the
lands are situated in the proportion that the rate of tax levy in
each district as shown by the tax levy filed with the assessor
for the last year in process of collection, bears to the total
rate of tax levy of all such taxing bodies for such year.
(2) After payment of the principal and interest of each bond
issue issued pursuant to ORS 530.210 to 530.280, 20 percent of
the moneys derived from forest products created through
expenditures of moneys available from such bond issue shall be
credited to the General Fund until the state is reimbursed for
its costs under the bond issue in that county. However, the
governing body of the county in its discretion may authorize a
higher percentage of that county's allocation for any year to be
so credited to the General Fund.
SECTION 2042. ORS 530.120 is amended to read:
530.120. The { - State Board of Forestry - } { + Oregon
Natural Resources Commission + } shall keep an accurate account,
by legal subdivisions, of all receipts from lands acquired under
the provisions of ORS 530.010 to 530.040 and shall credit to each
legal subdivision the revenues derived therefrom. The
{ - board - } { + commission + } shall render annually to each
county in which lands acquired under the provisions of ORS
530.010 to 530.040 are situated, a statement, by legal
subdivisions, showing the revenues derived from each of such
legal subdivisions.
SECTION 2043. ORS 530.130 is amended to read:
530.130. (1) In compliance with the applicable provisions of
ORS chapter 286A, the { - State Board of Forestry - }
{ + Oregon Natural Resources Commission + } may request the
State Treasurer to issue the revenue bonds described in ORS
530.140 to acquire any lands as provided in ORS 530.010 and to
sell revenue bonds under ORS 530.140 in the manner the State
Treasurer deems advisable. The net proceeds derived from the sale
of the revenue bonds, after the payment of bond-related costs,
shall be { - paid into the State Treasury and credited to the
State Forestry Department Account to be used exclusively - }
{ + deposited in the Oregon Natural Resources Fund and are
continuously appropriated to the Oregon Department of Natural
Resources + } for the purpose of acquiring lands as provided by
ORS 530.010 and 530.025. The { - State Forestry - } department
may establish one or more subaccounts, as it determines are
desirable for administration of the net proceeds, in the
{ - State Forestry Department Account - } { + fund + }.
(2) Subject to any management plan adopted under ORS 526.905
for the lands, the { - board - } { + commission + } may make
covenants related to the operation, use and sale of, or revenues
derived from, lands acquired with proceeds of the revenue bonds
that the { - board - } { + commission + } determines after
consultation with the State Treasurer to be necessary or
desirable for repayment of the bonds.
(3) Any lands proposed to be acquired under subsection (1) of
this section shall be appraised { - by the State Board of
Forestry and the appraisal shall be approved by the Department of
State Lands - } prior to the acquisition of the lands.
SECTION 2044. ORS 530.140 is amended to read:
530.140. (1) The { - State Board of Forestry - } { + Oregon
Natural Resources Commission + } may request the State Treasurer
to sell revenue bonds of the State of Oregon, to be known as
Oregon forest development revenue bonds, in an amount authorized
under ORS 286A.035. The bonds shall not constitute a general
obligation of the state, nor be a lien on any of the lands
acquired by the state under ORS 530.010.
(2) The bonds shall bear interest at a rate to be determined by
the State Treasurer.
SECTION 2045. ORS 530.147 is amended to read:
530.147. (1) The Forest Development Revenue Bond Fund is
established separate and distinct from the General Fund. Interest
earned by the Forest Development Revenue Bond Fund shall be
credited to the fund. Moneys in the fund may be invested as
provided in ORS 286A.025 and 293.701 to 293.820. All moneys in
the fund are continuously appropriated to the { - State Board
of Forestry - } { + Oregon Natural Resources Commission + } for
the purposes of paying bond-related costs when due on the revenue
bonds issued under ORS 530.140 on or after July 28, 2009.
(2) The Forest Development Revenue Bond Fund may be credited
with:
(a) Moneys { - deposited in the fund from the State Forestry
Department Account, to the extent that the State Forestry
Department - } { + transferred from the Oregon Natural
Resources Fund, to the extent that the Oregon Department of
Natural Resources + } allocates proceeds from the sale of revenue
bonds issued on or after July 28, 2009, under ORS 530.140 to the
payment of bond-related costs;
(b) Proceeds from the disposal of lands acquired with revenue
bonds that were issued on or after July 28, 2009, under ORS
530.140;
(c) Proceeds from the disposal of forest products, as defined
in ORS 532.010, minerals or other forest-related values derived
from the lands acquired with revenue bonds that were issued on or
after July 28, 2009, under ORS 530.140; and
(d) Gifts, grants or any other unrestricted moneys paid to the
{ - State Forestry Department or the State Board of Forestry - }
{ + department or the commission + } or appropriated by the
Legislative Assembly that may be used for the purpose set forth
in this section.
(3) The { - board or the State Forester - } { + Director of
the Oregon Department of Natural Resources or the commission + }
may make covenants related to, or pledge moneys deposited in, the
fund that the { - board or forester - } { + director or
commission + }, after consultation with the State Treasurer,
determines to be necessary or desirable for the repayment of
revenue bonds and the payment of bond-related costs.
SECTION 2046. ORS 530.170 is amended to read:
530.170. Revenues from lands acquired by the state pursuant to
section 5, chapter 478, Oregon Laws 1939, shall be disposed of as
provided by law at the time of such acquisition. However, the
county court or board of county commissioners of any county from
which such lands were acquired may, by resolution duly made and
entered { - , - } and delivery of a certified copy
{ - thereof - } { + of the resolution + } to the { - State
Board of Forestry - } { + Oregon Natural Resources
Commission + }, elect to have such revenues disposed of as
provided in ORS 530.110 (1).
SECTION 2047. ORS 530.175 is amended to read:
530.175. (1) The Forest Acquisition County Reimbursement Fund
is established in the State Treasury, separate and distinct from
the General Fund. Interest earned by the Forest Acquisition
County Reimbursement Fund shall be credited to the fund. Moneys
in the Forest Acquisition County Reimbursement Fund are
continuously appropriated to the { - State Forestry
Department - } { + Oregon Department of Natural Resources + }
for use as provided in this section.
(2) The fund shall consist of moneys deposited in the fund
pursuant to ORS 530.110 (3).
(3) If the department uses proceeds from bonds issued on or
after July 28, 2009, under ORS 530.140 or 530.210 to 530.280, or
from lottery bonds that were issued on or after July 28, 2009, to
acquire land that immediately prior to acquisition by the
department was subject to taxation by a county, the department
shall make payments as provided in this section to reimburse the
county for the loss of tax revenue from the acquired land. The
amount paid to a county under this section shall be the amount by
which the tax revenue to the county for the last year in which
the acquired land was taxable exceeds the amounts distributed to
the counties under ORS 530.110 (1)(b) or (2)(c) from revenue
generated by that land. However, if in any year the amounts
distributed under ORS 530.110 (1)(b) or (2)(c) from revenue
generated by the acquired land equals or exceeds the tax revenue
to the county for the last year in which the acquired land was
taxable, payments under this section in regard to that land shall
terminate and not resume.
{ + NOTE: + } Section 2048 was deleted. Subsequent sections
were not renumbered.
SECTION 2049. ORS 530.230 is amended to read:
530.230. In order to provide funds for the purposes specified
in Article XI-E of the Oregon Constitution, the { - State Board
of Forestry - } { + Oregon Natural Resources Commission + } may
request the State Treasurer to issue bonds in accordance with the
provisions of ORS chapter 286A.
SECTION 2050. ORS 530.240 is amended to read:
530.240. The net proceeds, after payment of bond-related costs,
arising from the sale of each issue of bonds under ORS 530.210 to
530.280 shall be { - paid into the State Treasury and credited
to the State Forestry Department Account and shall be used
exclusively - } { + deposited in the Oregon Natural Resources
Fund. Moneys deposited in the fund under this section are
continuously appropriated to the Oregon Department of Natural
Resources + } for the rehabilitation, reforestation, management
and development of state-owned forestlands and the acquisition of
lands for said purposes. Moneys acquired under ORS 530.230 shall
be in addition to and not in lieu of moneys regularly
appropriated or otherwise made available to the { - State Board
of Forestry - } { + department + } for the administration,
management and protection of state forestlands. The { - State
Forestry - } department may establish one or more subaccounts,
as the department determines are desirable for administration of
the net proceeds arising from the sale of each issue of bonds, in
the { - State Forestry Department Account - } { + fund + }.
SECTION 2051. ORS 530.250 is amended to read:
530.250. (1) The { - State Forester, under the direction of
the State Board of Forestry, - } { + Director of the Oregon
Department of Natural Resources + } shall rehabilitate, reforest
and develop state-owned forestlands so as to secure the highest
permanent usefulness to the whole people of the state. In the
management and control of such land, the { - State Forester - }
{ + director + } may employ assistants and such other help as in
the judgment of the { - State Forester - } { + director + }
may be necessary and may purchase machinery, equipment and
supplies required to accomplish the purposes hereof. The
{ - State Forester - } { + director + } may enter into any and
all contracts { - , in the name of the board, - } deemed
necessary for the rehabilitation, reforestation and development
of said lands.
(2) The { - board - } { + director and the Oregon Natural
Resources Commission + } shall carry out the provisions of ORS
530.210 to 530.280 and may promulgate such rules and regulations
and do any other act or thing necessary to meet fully the
requirements of such sections.
SECTION 2052. ORS 530.255 is amended to read:
530.255. (1) When making reforestation plans for state-owned or
state-managed lands the { - State Forester - } { + Director
of the Oregon Department of Natural Resources + }, insofar as
edaphic conditions permit, shall select suitable hardwood species
as well as coniferous species.
(2) Silvicultural practices shall have as their objective the
maintenance or improvement of forest health and soil fertility
and the production of a continuous supply of coniferous and
hardwood timber consistent with sound management of fish,
wildlife, recreational and watershed values.
SECTION 2053. ORS 530.280 is amended to read:
530.280. (1) The State Forestry General Obligation Bond Fund is
established separate and distinct from the General Fund.
Interest earned by the State Forestry General Obligation Bond
Fund shall be credited to the fund. Moneys in the fund may be
invested as provided in ORS 286A.025 and 293.701 to 293.820. All
moneys in the State Forestry General Obligation Bond Fund are
continuously appropriated to the { - State Forestry
Department - } { + Oregon Department of Natural Resources + }
for the purposes of paying bond-related costs when due on the
general obligation bonds issued under Article XI-E of the Oregon
Constitution. However, an agreement for exchange of interest
rates may not be paid from moneys derived under paragraph (a) of
this subsection or from General Fund moneys appropriated under
paragraph (d) of this subsection to fulfill a pledge of the full
faith and credit of the state set forth in Article XI-E of the
Oregon Constitution. The State Forestry General Obligation Bond
Fund shall consist of the following:
(a) All moneys derived from taxes levied under ORS 291.445;
(b) All moneys derived from the sale, exchange or use of land
acquired pursuant to ORS 530.240;
(c) Except as provided in ORS 530.115, all moneys received from
the disposal of forest products created through expenditures of
moneys available under ORS 530.210 to 530.280 for reforestation;
and
(d) Any moneys that may be appropriated to the fund by the
Legislative Assembly.
(2) The moneys referred to in subsection (1)(b) and (c) of this
section shall be set aside for State Forestry General Obligation
Bond Fund purposes until there are no longer any bonds issued
under ORS 530.210 to 530.280 outstanding. If no bonds issued
under ORS 530.210 to 530.280 are outstanding, the moneys
described in subsection (1)(b) and (c) of this section shall be
disposed of using the distribution formula described in ORS
530.115 (1)(a) to (c).
SECTION 2054. ORS 530.460 is amended to read:
530.460. (1) The { - Department of State Lands and the State
Board of Forestry - } { + Oregon Department of Natural
Resources + } shall designate and set aside those lands owned by
the State of Oregon { - , - } { + and + } under the
jurisdiction of the department { - of State Lands, which - }
{ + that + } are primarily suited for the growing of timber and
other forest products.
(2) The state-owned lands shall be designated and set aside
pursuant to ORS 530.470 and 530.480, and when so designated and
set aside, shall be known as the Common School Forest Lands and
hereby are dedicated for the primary purposes stated in
subsection (1) of this section and shall be withdrawn from sale
except as provided in ORS 530.450 to 530.520.
SECTION 2055. ORS 530.470 is amended to read:
530.470. (1) Periodically as is necessary, the { - Department
of State Lands and the State Board of Forestry - } { + Oregon
Department of Natural Resources + } shall proceed to designate
and set aside Common School Forest Lands as rapidly as forestry
data and information are obtained from field examinations of the
lands eligible for dedication under ORS 530.450 to 530.520.
(2) Any lands so designated and set aside may, at any time, be
returned to their original status by similar actions of said
agencies, if said lands are to be used for higher and better use
for the general public, including the sale of said lands where
lawful.
SECTION 2056. ORS 530.480 is amended to read:
530.480. As the Common School Forest Lands are determined as
required by ORS 530.450 to 530.520, such lands shall be described
by legal subdivision. The State Land Board and the { - State
Board of Forestry, respectively in their regular meetings, shall
by separate board resolutions designate and set - } { + Oregon
Department of Natural Resources shall each adopt a resolution
designating and setting + }aside such lands as a part of the
Common School Forest Lands { + . + } { - ; - } Lands in the
Elliott State Forest, as determined by ORS 530.450, shall be
similarly described and reserved. { - A copy of each board
resolution certified by the Director of the Department of State
Lands or the State Forester, respectively, together with the
description of the lands involved, shall be filed with the
Secretary of State, who shall keep such copies and descriptions
in conjunction with the auditing records of the State Forestry
Department Account. - } { + The Director of the Oregon
Department of Natural Resources shall certify a copy of each
resolution and file the copy with the Secretary of State. + }
SECTION 2057. ORS 530.490 is amended to read:
530.490. (1) Notwithstanding the provisions of any other law,
or authority granted thereunder, after the { - State Board of
Forestry and State Land Board resolutions and legal descriptions
are filed with the Secretary of State as required by ORS 530.480,
the State Forester hereby shall be authorized, under the
supervision of the State Board of Forestry and the regulations of
that board, to - } { + Director of the Oregon Department of
Natural Resources files the resolution and land description with
the Secretary of State under ORS 530.480, the director may + }
manage, control and protect the Common School Forest Lands. Also,
notwithstanding the provisions of any other law, or authority
granted thereunder, the { - State Forester hereby is
authorized, under the supervision of the State Board of Forestry
and the regulations of that board, to - } { + director may + }
manage, control and protect the Elliott State Forest Lands. In
each instance the
{ - State Forester - } { + director + } shall manage, control
and protect such forests and forestlands so as to secure the
greatest permanent value of the lands to the whole people of the
State of Oregon, particularly for the dedicated purposes of the
lands and the common schools to which the resources of the lands
are devoted.
{ - (2) Easements on, over and across the Common School
Forest Lands and the Elliott State Forest Lands may be granted as
follows: - }
{ - (a) Permanent easements determined by the State Forester
and State Board of Forestry as necessary to accomplish the
dedicated purposes of such lands may be granted by the Department
of State Lands. - }
{ - (b) Easements other than permanent may be granted by the
State Forester under joint rules of the State Board of Forestry
and Department of State Lands. - }
{ - (3) The authority granted the State Forester in this
section shall not supersede the authority of the Department of
State Lands to grant easements on or leases for the Common School
Forest Lands and Elliott State Forest Lands for grazing purposes
or for the exploration and development of minerals, oil or gas,
and any consideration received by the Department of State Lands
therefor shall be excepted from the provisions of ORS 530.520.
However, the Department of State Lands shall cooperate with the
forestry program of the State Forester in granting such easements
and leases and make provisions therein for continuing the primary
purposes for which such land has been dedicated. - }
{ + (2) The Director of the Oregon Department of Natural
Resources may grant leases for or easements on, over and across
the Common School Forest Lands and the Elliot State Forest Lands
if the lease or easement is necessary to accomplish the dedicated
purposes of such lands. + }
SECTION 2058. ORS 530.500 is amended to read:
530.500. In order to accomplish the purposes of ORS 530.490,
the { - State Forester - } { + Director of the Oregon
Department of Natural Resources + } may:
(1) Protect the lands from fire, disease and insect pests,
cooperate with the counties and with persons owning lands within
the state in the protection of the lands and enter into all
agreements necessary or convenient for the protection of the
lands.
(2) Enter into and administer contracts for the sale of timber
from lands owned or managed by the { - State Board of Forestry
and the State Forestry Department - } { + Oregon Department of
Natural Resources + }.
(3) Permit the use of the lands for other purposes, including
but not limited to fish and wildlife environment, landscape
effect, protection against flood and erosion, recreation and
production and protection of water supplies when the use is not
detrimental to the purpose for which the lands are dedicated.
(4) Contract with other governmental bodies for the protection
of water supplies to facilitate the multiple use of publicly
owned water supplies for recreational purposes as well as a
source of water for domestic and industrial use.
(5) Grant permits and licenses on, over and across the lands.
(6) Reforest the lands and cooperate with persons owning
timberlands within the state in the reforestation, and make all
agreements necessary or convenient for the reforestation.
(7) Establish a forestry carbon offset program to market,
register, transfer or sell forestry carbon offsets. In
establishing the program, the { - forester - }
{ + director + } may:
(a) Execute any contracts or agreements necessary to create
opportunities for the creation of forestry carbon offsets; and
(b) Negotiate prices that are at, or greater than, fair market
value for the transfer or sale of forestry carbon offsets.
(8) Do all things and make all rules and regulations, not
inconsistent with law, necessary or convenient for the
management, protection, utilization and conservation of the
lands.
(9) Require such undertakings as in the opinion of the
{ - State Forester - } { + director + } are necessary or
convenient to secure performance of any agreement authorized in
ORS 530.450 to 530.520.
SECTION 2059. ORS 530.510 is amended to read:
530.510. { + (1) The Director of the Oregon Department of
Natural Resources + } { - The State Forester - } may propose
and initiate any exchange of land of the Elliott State Forest or
Common School Forest Lands, or propose and initiate any exchange
of timber on such lands, for land of approximately equal
aggregate value, when any such exchange is in the furtherance of
the purposes of ORS 530.450 to 530.520. However:
{ - (1) - } { + (a) + } Any exchange of land of the Elliott
State Forest must be for the consolidation of the forest;
{ - (2) - } { + (b) + } The State Land Board and the
{ - State Board of Forestry - } { + Oregon Natural Resources
Commission + } shall { - , each separately, - } { + each + }
approve such exchanges by { - resolutions of the respective
boards - } { + separate resolutions + }; and
{ - (3) - } { + (c) + } The county court or board of county
commissioners of the county, or counties, in which such land is
situated, shall approve such exchange, and after such approval
the exchanges shall be consummated by legal conveyance from the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + }.
{ - (4) - } { + (2) + } Under the authority granted in this
section, in addition to land to be exchanged, a monetary
consideration may be provided or received where necessary to make
the values comply with this section. No exchange shall be made
until title to the lands to be received has been approved by the
Attorney General. All lands received in exchange shall have the
same status and be subject to the same provisions of law as the
lands given in exchange therefor.
SECTION 2060. ORS 530.520 is amended to read:
530.520. (1) Excepting receipts from the easements and leases
designated in ORS 530.490 { - (3) - } , all receipts from the
Elliott State Forest and the Common School Forest Lands shall be
paid into the Common School Fund and are continuously
appropriated to the
{ - Department of State Lands - } { + Oregon Department of
Natural Resources + } for the purposes for which other moneys in
the Common School Fund may be used and to reimburse the Common
School Forest Revolving Fund as provided in subsection (2) of
this section.
(2)(a) The Common School Forest Revolving Fund, in an amount
not exceeding $300,000, is established as a fund, separate and
distinct from the General Fund, in the State Treasury. Interest
earned by the fund shall be credited to the fund. The revolving
fund is continuously appropriated to the { - State Forester for
the payment of administrative expenses incurred by the State
Forester - } { + Director of the Oregon Department of Natural
Resources for payment of administrative expenses incurred by the
director + } in the management, control and protection of the
Elliott State Forest and the Common School Forest Lands and in
processing the sale of forest products and the disposal of
privileges under ORS 530.500. The revolving fund shall be
reimbursed at least once each month
{ - by submission to the Department of State Lands of a claim
for payment approved by the State Forester and payment of the
claim to the revolving fund out of the Common School Fund, that
payment representing a portion of receipts paid into the Common
School Fund under subsection (1) of this section - } .
(b) As used in paragraph (a) of this subsection, '
administrative expenses' means a classification of expenses
incurred by the { - State Forester - } { + director + } in
performing functions referred to in paragraph (a) of this
subsection as a whole, rather than expenses incurred in
performing any specific function that is a part of the
whole { + , + } { - ; - } and it means expenditures recognized
as operating costs of a current or past period, including refund
of overpayments in the sale of forest products, and capital
expenditures for buildings, furniture, fixtures or equipment.
{ - (3) After the end of each six-month period the State
Forester shall submit to the Department of State Lands a
statement of capital asset account balances as of the end of that
period for buildings, furniture, fixtures and equipment held by
the State Forester in performing functions referred to in
subsection (2)(a) of this section and in which the Common School
Fund has a vested interest, showing the amount of that
interest. - }
SECTION 2061. ORS 530.990 is amended to read:
530.990. (1) Except for violations arising from activities
under contract with the { - State Board of Forestry or the
State Forestry Department - } { + Oregon Department of Natural
Resources or the Oregon Natural Resources Commission + }, and
subject to ORS 153.022, violation of any rule or order adopted
pursuant to ORS 530.050 is a Class A violation.
(2) Multiple violations of any rule or order adopted pursuant
to ORS 530.050 shall be considered a single violation. However,
each day a violation continues shall be considered a separate
violation.
(3) Violations and punishments set forth in this section are in
addition to and not in lieu of the provisions of ORS 164.305 to
164.335.
SECTION 2062. ORS 532.010 is amended to read:
532.010. For purposes of ORS 532.010 to 532.140, unless the
context or subject matter otherwise requires:
(1) 'Booming equipment' includes boom sticks.
(2) 'Brand' means an identifying mark upon forest products or
booming equipment, as provided by rule and regulation of the
{ - State Forester; - } { + Director of the Oregon Department
of Natural Resources, + } but any brands in use and registered
with the Public Utility Commission on October 1, 1951, with the
exception of those brands enclosed in the letter 'C,' the use of
which is particularly reserved for catch brands, may be continued
in use, subject to the other provisions of ORS 532.010 to
532.140.
(3) 'Catch brand' means a mark of brand used by a person as an
identifying mark upon forest products and booming equipment
previously owned by another.
(4) 'Forest products' means any form, including but not limited
to logs, poles and piles, into which a fallen tree may be cut
before it undergoes manufacturing, but not including peeler
cores.
(5) 'Highway' means every street, alley, road, highway and
thoroughfare in this state, used by the public or dedicated or
appropriated to public use.
(6) 'Motor vehicle' means any self-propelled or motor driven
vehicle or any train or combination of vehicles used upon any
highway in this state in transporting forest products.
(7) 'Railroad' means any self-propelled vehicle or any train or
combination of vehicles operating wholly on fixed rails or
tracks.
(8) 'Waters of this state' includes all bodies of fresh and
salt water within the jurisdiction of the state capable of being
used for the transportation of forest products, and all rivers
and lakes and their tributaries, harbors, bays, sloughs and
marshes.
SECTION 2063. ORS 532.020 is amended to read:
532.020. (1) Except as provided in ORS 532.030, every person
who puts into any of the waters of this state, ships on any motor
vehicle or railroad any forest products, or uses any booming
equipment as a part of an operation in securing, rafting or
floating forest products, shall have a mark or brand previously
selected by the person and registered in the manner provided in
ORS 532.010 to 532.140 plainly impressed or cut in a conspicuous
place on the forest products and booming equipment in a manner as
required by the rules and regulations of the { - State
Forester - } { + Director of the Oregon Department of Natural
Resources + }.
(2) The { - State Forester - } { + director + } hereby is
authorized to issue rules and regulations to accomplish the
purposes of ORS 532.010 to 532.140.
SECTION 2064. ORS 532.030 is amended to read:
532.030. In view of the different conditions obtaining in the
logging industry of this state between the parts of the state
lying respectively east and west of the crest of the Cascade
Mountains, forest products may be put into the waters of this
state or shipped on railroads or motor vehicles without having
thereon a registered mark or brand as required in ORS 532.010 to
532.140, within that portion of the state lying east of the crest
of the Cascade Mountains; and the penalties provided in ORS
532.990 for failure to mark or brand such forest products shall
not apply. However, any person operating within the east side
portion of the state may select a mark or brand and cause it to
be registered in the { - office of the State Forester - }
{ + Oregon Department of Natural Resources + } pursuant to the
terms of ORS 532.010 to 532.140 and use it for the purpose of
marking or branding forest products and booming equipment. In the
event of the registration of such mark or brand and the use of it
in marking or branding forest products or booming equipment, the
provisions of ORS 532.010 to 532.140 shall apply to the forest
products and booming equipment so marked or branded.
SECTION 2065. ORS 532.040 is amended to read:
532.040. All forest products and booming equipment having
impressed thereupon a registered brand as provided in ORS 532.010
to 532.140 are presumed to belong to the person appearing on the
records in the { - office of the State Forester - } { +
Oregon Department of Natural Resources + } as the owner of the
brand. However, all forest products having impressed thereupon
also a registered catch brand are presumed to belong to the owner
of the registered catch brand, unless there are impressed
thereupon more than one registered catch brand, in which event
they shall be presumed to belong to the owner whose registered
catch brand was placed thereupon latest in point of time.
SECTION 2066. ORS 532.050 is amended to read:
532.050. (1) Every person selecting a brand, before using it,
shall make application for its registration in the { - office
of the State Forester - } { + Oregon Department of Natural
Resources + } by depositing therein an impression stamped on a
designated form, together with, in duplicate, a written statement
duly signed and verified by the person or the agent of the
person, containing a description of the brand and declaring that
it is not, and at the time of its adoption by the person, was not
in use to the knowledge of the person by any other person and
that the person has selected it in good faith for branding forest
products to be transported on motor vehicles or railroads, or
floated or rafted in the waters of this state, or booming
equipment to be used by the person as a part of the operations in
securing, rafting or floating forest products.
(2) The { - State Forester - } { + Director of the Oregon
Department of Natural Resources + }, upon the receipt of the
application and the fee provided in ORS 532.110, if the
{ - State Forester - } { + director + } finds that the brand
is not identical with any other brand registered in the
{ - office of the State Forester - } { + department + } or
does not so closely resemble one registered therein as to be
confused therewith, shall file in the { - office of the State
Forester - } { + department + } the impression or drawing and
one copy of the written statement and shall register the brand in
a book to be provided by the { - State Forester - }
{ + director + } and kept for the purpose and known as the
Forest Products Brand Register, entering therein the name of the
owner, character of the brand, date of registration and such
other details as the { - State Forester - } { + director + }
may see fit to enter therein. The { - State Forester - }
{ + director + } shall return to the applicant the other copy of
the written statement as evidence that the brand has been duly
registered in accordance with the provisions of ORS 532.010 to
532.140 and that the applicant is the registered owner. The
{ - State Forester - } { + director + }, in the event of
refusal to register a brand on account of confliction with or
resemblance to one already registered, shall immediately give
notice of that fact to the applicant, who may select another
brand and apply for its registration in the manner of an original
application.
SECTION 2067. ORS 532.060 is amended to read:
532.060. Every person desiring to use a catch brand as an
identifying mark upon forest products or booming equipment
purchased or lawfully acquired by the person from another shall,
before using it, make application for its registration in the
{ - office of the State Forester - } { + Oregon Department of
Natural Resources + } in the manner prescribed for the
registration of brands, and the provisions contained in ORS
532.010 to 532.140 in reference to registration, certifications,
assignments and cancellation and the fees to be paid to the
{ - State Forester - } { + Director of the Oregon Department
of Natural Resources + } shall apply equally to catch brands.
However, the certificate of the { - State Forester - }
{ + director + } shall designate the mark or brand as a catch
brand, and the mark selected by the applicant as a catch brand
shall be enclosed in the letter 'C,' which letter 'C' shall
identify the mark as, and shall be used only in connection with,
a catch brand.
SECTION 2068. ORS 532.070 is amended to read:
532.070. A copy of brand registration certified by the
{ - State Forester - } { + Director of the Oregon Department
of Natural Resources + } or the deputy of the { - State
Forester - } { + director + } as a true copy and in good
standing shall be received in all the courts of this state as
evidence of the due and proper registration of the mark or brand
and of its ownership.
SECTION 2069. ORS 532.080 is amended to read:
532.080. Every mark or brand registered under ORS 532.010 to
532.140 shall be assignable in law. The { - State Forester - }
{ + Director of the Oregon Department of Natural Resources + },
upon payment of the fee mentioned in ORS 532.110 and presentation
to the { - State Forester - } { + director + }, in duplicate,
of an assignment, duly executed and acknowledged by the owner,
transferring the mark or brand to a person named therein, shall
file one copy of the assignment in the
{ - office of the State Forester - } { + Oregon Department of
Natural Resources + } and make an entry in the Forest Products
Brand Register of the fact of the assignment, the date, the name
of the assignee and such other details as the { - State
Forester - } { + director + } may see fit to enter therein. The
{ - State Forester - } { + director + } shall return to the
assignee the other copy of the assignment, with a certificate
attached thereto, signed by the { - State Forester - } { +
director + } or the employee of the { - State Forester - }
{ + director + }, to the effect that the mark or brand has been
duly registered in accordance with the provisions of ORS 532.010
to 532.140 and assigned to the assignee and that the assignee is
the registered owner. The assignee, upon the due registration of
the assignment as herein provided, shall become the owner of the
mark or brand with the full right of exclusive use to the same
extent as though the assignee had been the original owner.
SECTION 2070. ORS 532.090 is amended to read:
532.090. The { - State Forester - } { + Director of the
Oregon Department of Natural Resources + }, upon the petition of
the owner of a registered mark or brand, may cause the
registration thereof to be canceled, and in the event of such
cancellation, the mark or brand shall be open to registration by
any person subsequently applying therefor.
SECTION 2071. ORS 532.100 is amended to read:
532.100. (1) The { - State Forester - } { + Director of the
Oregon Department of Natural Resources + } shall, each five-year
period after October 1, 1951, notify the owners of all log marks
or brands then of record in Oregon to renew them. Upon receipt of
the fee provided for in ORS 532.110, the { - State Forester - }
{ + director + } shall give a renewal certificate, which shall
give the holder and owner the exclusive right to continue the use
of the brand or mark within Oregon. If any owner of a brand or
mark which is on record fails or refuses to pay the renewing fee
within three months after notification, such brand shall become
forfeited and be no longer carried on the records.
(2) On or after January 1, 1952, no person shall claim or own
any log mark or brand which has not been renewed in accordance
with the provisions of this section, and any failure to renew the
log mark or brand as required by such provisions shall be deemed
an abandonment of the same. Any other person shall be at liberty
to adopt or use the abandoned mark or brand; but the other person
shall not claim or use it until after it has been recorded in the
other person's own name, in the manner provided in ORS 532.010 to
532.140. However, no abandoned or canceled brand may be reissued
for a period of one year after such abandonment or cancellation,
except to the previous owner or the assignee of the previous
owner. In case of a dispute as to the right of any person to the
use of such mark or brand, the { - State Forester - }
{ + director + } shall determine which of the applicants is
entitled to its use.
SECTION 2072. ORS 532.110 is amended to read:
532.110. The fees to be paid to the { - State Forester - }
{ + Director of the Oregon Department of Natural Resources + }
are as follows:
(1) For filing an application to register a mark or brand and
registering the same, including the certificate, $20.
(2) For filing an application for an assignment of a registered
mark or brand and registering such assignment, including the
certificate, $20.
(3) For every other certificate of registration, including a
copy of the written statement or assignment, $20.
(4) For each copy of any drawing, the reasonable expense of
preparing it.
(5) For renewing brands or marks, $20.
SECTION 2073. ORS 532.120 is amended to read:
532.120. All fees collected by the { - State Forester - }
{ + Director of the Oregon Department of Natural Resources + }
under ORS 532.010 to 532.140 shall be { - paid into the State
Treasury, credited to the State Forestry Department Account and
available - } { + deposited in the Oregon Natural Resources
Fund. Moneys deposited in the fund under this subsection are
continuously appropriated to the Oregon Department of Natural
Resources + } for expenses associated with ORS 532.010 to
532.140.
{ + NOTE: + } Section 2074 was deleted. Subsequent sections
were not renumbered.
SECTION 2075. ORS 541.425 is amended to read:
541.425. (1) The Stewardship Agreement Grant Fund is
established separate and distinct from the General Fund. The
Stewardship Agreement Grant Fund shall consist of all moneys
placed in the fund as provided by law. All moneys in the
Stewardship Agreement Grant Fund are continuously appropriated to
the { - State Board of Forestry - } { + Oregon Department of
Natural Resources + } to provide grants to carry out the purposes
of stewardship agreements described in ORS 541.423. Interest
accruing to the Stewardship Agreement Grant Fund shall be
credited to the fund. Funds appropriated and not expended by the
completion of a biennium shall remain in the Stewardship
Agreement Grant Fund.
(2) The { - State Board of Forestry - } { + Oregon Natural
Resources Commission + } shall administer the Stewardship
Agreement Grant Fund and provide grants from the fund to
landowners who have entered into stewardship agreements for the
purposes described in ORS 541.423.
(3) In addition to the funds made available for the purposes of
ORS 541.423, the { - board - } { + commission + } also may
accept gifts and grants from any public or private source for the
purpose of providing the grants described in subsection (2) of
this section.
SECTION 2076. ORS 541.426 is amended to read:
541.426. The { - State Board of Forestry - } { + Oregon
Natural Resources Commission + } may award funds from the
Stewardship Agreement Grant Fund only for the purposes described
in ORS 541.425. Any projects that the { - board - }
{ + commission + } approves for funding must comply with the
following criteria:
(1) There must be matching contribution from other program
funds, in-kind services or other investment in the project; and
(2) The project must provide a public benefit through improved
water quality or improved fish or wildlife habitat.
SECTION 2077. ORS 634.322 is amended to read:
634.322. In carrying out and enforcing the provisions of this
chapter, the State Department of Agriculture is authorized:
(1) To collect samples of pesticides from any source, for
analysis to determine compliance with this chapter.
(2) In accordance with the provisions of ORS 561.605 to
561.630, to seize or embargo any pesticide or device which is
misbranded, adulterated or otherwise in violation of this
chapter.
(3) Notwithstanding the provisions of ORS 561.605 to 561.630,
whenever the department has reasonable cause to believe a
pesticide or device is being formulated, distributed, stored or
transported in violation of any of the provisions of this
chapter, to issue and serve a written 'stop sale, use or removal'
order to and upon the owner or person in custody of any such
pesticide or device. In the event the owner or person in custody
is not available for service of the order, the department may
attach a copy of the order to the pesticide or device. Upon
issuance of the order, the pesticide or device shall not be sold,
used or removed until the provisions of this chapter have been
complied with and the pesticide or device has been released, by
written notice of the department, under conditions specified by
the department.
(4) In accordance with the provisions of ORS chapter 183, to
revoke, suspend or refuse to issue or renew any license or
certificate if it determines that an applicant, licensee or
certificate holder has violated any of the provisions of this
chapter.
(5) In accordance with the provisions of ORS chapter 183, to
amend, suspend or revoke the registration of a pesticide for
violation of any of the provisions of this chapter.
(6) To establish limitations and procedures deemed necessary
and proper for the protection of persons, pollinating insects,
bees, animals, crops, wildlife, land or environment, on the
following:
(a) Quantities of packages;
(b) Quantities of sales;
(c) Uses or applications;
(d) Methods of sale, including prescription or permit
requirements; or
(e) Persons to whom sold.
(7) To inspect any records required to be maintained by persons
formulating, distributing, using or selling the pesticides
described in ORS 634.306 (4), and to cause monitoring of the
effects of such pesticides on human or animal life in any area
where it is used or applied by a recognized and qualified person
or agency.
(8) To enter into cooperative and reciprocal agreements with
the federal government, or any of its agencies, for the purpose
of enforcement of the provisions of this chapter or federal laws
and regulations on the same subject matters, and to receive and
expend funds pursuant to such agreements in furtherance of such
purpose.
(9) To cooperate with, and request the assistance of, Oregon
State University, governmental agencies or other persons for the
purpose of enforcement of the provisions of this chapter.
(10)(a) To act jointly in, and with the concurrence of the
{ - State Forester - } { + Director of the Oregon Department
of Natural Resources + } and a research specialist designated by
Oregon State University, the issuance of permits for the use of
isopropyl ester of 2,4-D or any other ester of equal or higher
volatility with regard to plant damage. Each such permit shall
specify:
(A) The particular ester allowed;
(B) The boundaries of the area in which it may be used; and
(C) The prescribed time limit and condition under which it may
be applied.
(b) Such permits shall only be issued when the issuing
authority determines that the use of the ester will not damage
agricultural and forest products and susceptible crops. In making
such determination, the issuing authority shall consider research
data, topography, climate, temperature, humidity, prevailing
winds, characteristics of the ester and location of agricultural
and forest products and susceptible crops. Such permits may be
issued subject to conditions prescribed by the issuing authority.
Issuance of such permit shall not be construed as a waiver of any
of the provisions of this chapter.
SECTION 2078. ORS 757.266 is amended to read:
757.266. The Public Utility Commission of Oregon may allow a
rate or rate schedule of a public utility to reflect amounts for
small scale programs that enable the utility to gain experience
with tree planting on underproducing forestland, as defined by
the
{ - State Forestry Department - } { + Oregon Department of
Natural Resources + }, as an offset to carbon dioxide emissions.
SECTION 2079. ORS 803.030 is amended to read:
803.030. This section establishes exemptions from the
requirements under ORS 803.025 to obtain title issued by this
state. The exemptions are subject to ORS 803.040. The exemptions
are in addition to any exemptions under ORS 801.026. Vehicles
exempted by this section from the requirements to be titled by
this state are not prohibited from being titled by this state if
titling is permitted under ORS 803.035. The exemptions are
partial or complete as provided in the following:
(1) Title from this state is not required for a vehicle unless
the vehicle is operated on a highway in this state.
(2) Title from this state is not required unless a vehicle is
operated under a registration number of this state.
(3) Snowmobiles, Class I all-terrain vehicles and Class III
all-terrain vehicles are not subject to the requirements under
ORS 803.025. The requirements and procedures for titling
snowmobiles are as provided under ORS 821.060 and 821.070.
(4) Road rollers, farm tractors and traction engines are exempt
from the requirements for title.
(5) Trolleys are exempt from the requirements for title.
(6) Bicycles are exempt from the requirements for title.
(7) United States Government owned and operated motor vehicles
and trailers are exempt from the requirements for title.
(8) Implements of husbandry, well drilling machinery, emergency
fire apparatus providing public fire protection and wheelchairs
are exempt from the requirements for title.
(9) Except as provided in subsection (23) of this section,
fixed load vehicles are exempt from the requirements for title
while operated within the immediate construction project, as
described in the governmental agency contract, in the
construction or reconstruction of state or county roads, highways
or city streets.
(10) Motor vehicles designed to operate at a loaded weight over
8,000 pounds, trailers and equipment are exempt from requirements
for title while:
(a) Owned, leased, contracted or requisitioned by the
{ - State Forester, State Board of Forestry, - } { + Director
of the Oregon Department of Natural Resources, Oregon Natural
Resources Commission, + } their contractors under ORS chapter 477
{ - , - } or the federal government; and
(b) Being used for the purposes of forest protection and fire
suppression under ORS chapter 477 or a similar federal statute,
including movement of the vehicles to and from the work area.
(11) Farm trailers are exempt from requirements for title when
the operation or movement of the vehicle upon the highways is
incidental to its use in an agricultural operation.
(12) Golf carts operated under an ordinance adopted under ORS
810.070 are exempt from requirements for title.
(13) Golf carts or similar vehicles are exempt from
requirements for title when:
(a) They have not less than three wheels in contact with the
ground;
(b) They have an unloaded weight of less than 1,300 pounds;
(c) They are designed to be and are operated at not more than
15 miles per hour; and
(d) They are operated by persons with disabilities.
(14) The nonresident owners of vehicles currently registered
and titled in any other country, state or territory may operate
such vehicles over the highways of this state without complying
with the titling requirements under ORS 803.025. All of the
following apply to this subsection:
(a) This subsection only provides an exemption so long as the
owner satisfactorily shows that the owner is not a resident of
this state or has been a resident of this state for less than 30
days. For the purpose of this paragraph, a person is a resident
of this state if the person meets the residency requirements
described in ORS 803.200.
(b) The exemption under this subsection applies to vehicles
granted exemptions under ORS 802.500, 802.520 or 826.005, unless
otherwise provided under paragraph (c) of this subsection.
(c) Except as otherwise provided in this paragraph, a vehicle
operated over the highways of this state for compensation or
profit must comply with the titling requirements under ORS
803.025 in the same manner as required of nontitled vehicles. The
following vehicles are not subject to this paragraph:
(A) Vehicles operated under reciprocal registration exemptions
established under ORS 802.500 or 826.005.
(B) Vehicles operated under an exemption established under ORS
802.520.
(C) Vehicles that are proportionally registered under an
agreement established under ORS 826.007, and according to the
procedures established under ORS 826.009 or 826.011.
(D) Any vehicle if duly registered and titled under the laws of
the state or country of which the owner is a bona fide resident
to the extent that in the foreign country, state, territory or
federal district where the owner resides like exemptions and
privileges are granted vehicles duly registered and titled under
the laws of this state and owned by residents of this state.
(d) If no exemptions from titling requirements are in effect
under ORS 802.500, 802.520, 826.005 or 826.007 with respect to
another jurisdiction, any vehicle properly registered and titled
in such other jurisdiction and for which evidence of compliance
is supplied shall receive, when operated in this state, the same
exemptions, benefits and privileges granted by such other
jurisdictions to vehicles properly registered and titled in this
state. Reciprocity extended under this paragraph shall apply to
commercial vehicles only when engaged exclusively in interstate
commerce.
(e) Any vehicle operated under dealer registration plates
issued by another state, country, province, territory or the
District of Columbia is subject to this subsection.
(15) Vehicle dealers issued certificates under ORS 822.020 may
use and operate untitled vehicles as provided under ORS 822.040.
(16) Towing businesses issued certificates under ORS 822.205
may tow untitled vehicles as provided under ORS 822.210.
(17) Vehicle transporters issued certificates under ORS 822.310
may transport untitled vehicles as provided in ORS 822.310.
(18) Untitled vehicles may be operated under trip permits
described under ORS 803.600 or under permits described under ORS
803.610 to 803.625.
(19) Vehicles that are registered by the United States
Department of State and that are owned or operated by foreign
nationals with diplomatic immunity are exempt from the
requirements for title.
(20)(a) Vehicles that are registered under the proportional
registration provisions of ORS chapter 826 and are titled in a
jurisdiction other than Oregon are exempt from the requirements
for title.
(b) A trailer that is registered under the proportional
registration provisions of ORS chapter 826 and titled in a
jurisdiction other than Oregon shall remain exempt from the
requirements for title in Oregon if the trailer is registered
when the other jurisdiction removes its exception to proportional
registration requirements for the trailer.
(21) Converter dollies and tow dollies are exempt from the
requirements for title.
(22) Electric personal assistive mobility devices are exempt
from the requirements for title.
(23) Road machinery that is operated at the direction of a road
authority is exempt from the requirements for title. The
exemption under this subsection also applies when the operation
of road machinery upon a highway or an alley is incidental to its
use in a highway maintenance operation.
SECTION 2080. ORS 803.305 is amended to read:
803.305. This section establishes exemptions from the
requirements under ORS 803.300. The exemptions under this section
are in addition to any exemptions under ORS 801.026. Vehicles
exempted by this section from the requirements to be registered
by this state are not prohibited from being registered by this
state if registration is permitted under ORS 803.310. The
following are exempt, either partially or completely as
described, from the registration requirements under ORS 803.300:
(1) Road rollers, farm tractors, trolleys and traction engines
are exempt from registration.
(2) Bicycles are exempt from registration.
(3) A vehicle is exempt from registration if it has
registration issued for the vehicle by the Armed Forces of the
United States where the registration is issued in a foreign
country to a vehicle owned by a member of the Armed Forces. The
exemption granted by this subsection applies only for a period of
45 days from the time the vehicle is returned to the United
States.
(4) A vehicle is exempt from registration if it is not operated
on the highways of this state.
(5) A trailer is exempt from registration if it is equipped
with pneumatic tires made of elastic material and is not operated
in this state with a loaded weight of more than 1,800 pounds. A
trailer for hire, travel trailer or camper is not exempt by this
subsection.
(6) Vehicles owned and operated by the United States Government
are exempt from registration.
(7) Snowmobiles are subject to the requirements for
registration provided under ORS 821.080 to 821.110.
(8) Implements of husbandry, well drilling machinery, emergency
fire apparatus providing public fire protection and wheelchairs
are exempt from registration.
(9) Road graders, farm tractors and farm trailers on highways
are exempt from registration when the operation of the vehicle
upon the highway is incidental to its use in an agricultural
operation.
(10) Except as provided in subsection (26) of this section,
fixed load vehicles are exempt from registration while the
vehicles are operated:
(a) In the construction or reconstruction of state or county
roads, highways or city streets; and
(b) Within the immediate construction projects, as described in
the governmental agency contract under which the work is being
performed.
(11) Motor vehicles designed to operate at a loaded weight over
8,000 pounds, trailers and equipment are exempt from registration
while being used for the purposes of forest protection and fire
suppression under ORS chapter 477 or a similar federal statute.
The exemption under this subsection applies to the vehicles or
equipment described while being moved to or from the work area.
The exemption under this subsection { - only - } applies { +
only + } to vehicles or equipment owned, leased, contracted for
or requisitioned by the { - State Forester or State Board of
Forestry, a contractor of the State Forester or State Board of
Forestry under ORS chapter 477 - } { + Director of the Oregon
Department of Natural Resources, the Oregon Natural Resources
Commission, a contractor of the director or commission under ORS
chapter 477 + } or the United States Government.
(12) Vehicles being used for the purposes of forest protection
and fire suppression are exempt if the vehicles are necessary in
order to comply with ORS 477.615 or 477.650 or a similar federal
statute. The exemption under this subsection also applies to the
vehicles described being moved to or from the work area.
(13) Golf cart exemptions from registration are as provided in
ORS 820.210.
(14) Vehicles currently registered and titled in any other
country, state or territory are not required to be registered by
this state. All of the following apply to this subsection:
(a) This subsection only provides an exemption as long as the
owner of the vehicle satisfactorily shows that the owner is not a
resident of this state or has been a resident of this state for
less than 30 days. For the purpose of this paragraph, a person is
a resident of this state if the person meets the residency
requirements described in ORS 803.200.
(b) The exemption under this subsection applies to vehicles
granted exemptions under ORS 802.500, 802.520 or 826.005 unless
otherwise provided for under paragraph (c) of this subsection.
(c) Except as otherwise provided in this paragraph, a vehicle
operated over the highways of this state for compensation or
profit must comply with the registration requirements under ORS
803.300 in the same manner as vehicles owned by persons in this
state. The following vehicles are not subject to this paragraph:
(A) Vehicles operated under reciprocal registration exemptions
established under ORS 802.500 or 826.005.
(B) Vehicles operated under an exemption established under ORS
802.520.
(C) Vehicles that are proportionally registered under an
agreement established under ORS 826.007 and according to the
procedures established under ORS 826.009 and 826.011.
(D) Any vehicle if duly registered and titled under the laws of
the state or country of which the owner is a bona fide resident
to the extent that in the foreign country, state, territory or
federal district where the owner resides like exemptions and
privileges are granted vehicles duly registered and titled under
the laws of this state and owned by residents of this state.
(d) If no exemption from registration requirements is in effect
under ORS 802.500, 802.520, 826.005 or 826.007 with respect to
another jurisdiction, any vehicle properly registered and titled
in such other jurisdiction and for which evidence of compliance
is supplied shall receive, when operated in this state, the same
exemptions, benefits and privileges granted by such other
jurisdictions to vehicles properly registered and titled in this
state. Reciprocity extended under this paragraph shall apply to
commercial vehicles only when engaged exclusively in interstate
commerce.
(e) Any vehicle operated under dealer registration plates
issued by another state, country, province, territory or the
District of Columbia is subject to this subsection.
(15) Vehicles operated or used by vehicle dealers may be
operated or used without registration as provided under ORS
822.040.
(16) Vehicles towed by towing businesses may be towed without
registration as provided under ORS 822.210.
(17) Vehicles without registration may be transported by
vehicle transporters as provided under ORS 822.310.
(18) Vehicles that are not registered may be operated under
trip permits described under ORS 803.600 or under permits
described under ORS 803.610 to 803.625.
(19) If trailers that are part of a fleet of trailers for hire
are properly registered in this state under an agreement entered
into pursuant to ORS 802.500, all trailers that are identified as
being a part of the same fleet and that are currently registered
in any state, territory, province, country or the District of
Columbia shall be permitted to operate in this state in both
interstate and intrastate commerce without being registered by
this state.
(20) Vehicles that are registered by the United States
Department of State and that are owned or operated by foreign
nationals with diplomatic immunity are exempt from registration.
(21) Tow dollies and converter dollies are exempt from
registration.
(22) Class I and Class III all-terrain vehicles are exempt from
registration.
(23) Motor assisted scooters are exempt from registration.
(24) Electric personal assistive mobility devices are exempt
from registration.
(25) A racing activity vehicle that is being operated for the
purposes of a test drive within a 30-mile radius of the location
where the vehicle is manufactured is exempt from registration.
(26) Road machinery that is operated at the direction of a road
authority is exempt from registration. The exemption under this
subsection also applies when the operation of road machinery upon
a highway or an alley is incidental to its use in a highway
maintenance operation.
SECTION 2081. ORS 825.017 is amended to read:
825.017. Except as provided in ORS 825.026 and 825.030, this
chapter does not apply to the persons or vehicles described in
this section. The exemption under this section applies to the
following persons and vehicles:
(1) Vehicles being used by, or under contract with, any school
board, district or person responsible for the administration of
elementary or secondary school activities, and engaged
exclusively in transporting students or combinations of students
and other persons to or from school, to or from authorized school
activities or other activities sponsored by the State Board of
Higher Education, or for purposes provided under ORS 332.427.
This exemption shall not be affected by the charging of a fee to
cover the costs of the transportation.
(2) Vehicles being used in a taxicab operation if the vehicle:
(a) Is a passenger vehicle with a passenger seating capacity
that does not exceed five;
(b) Carries passengers for hire where the destination and route
traveled may be controlled by a passenger and the fare is
calculated on the basis of any combination of an initial fee,
distance traveled or waiting time; and
(c) Is transporting persons or property, or both, between
points in Oregon.
(3) Vehicles being used for the transportation of property by
private carrier by means of a single vehicle or combination of
vehicles with a combined weight that does not exceed 8,000
pounds.
(4) Vehicles being used in operating implements of husbandry.
(5) Vehicles being used as a hearse or ambulance.
(6) Vehicles being used over any private road or thoroughfare.
(7) Vehicles being used on any road, thoroughfare or property,
other than a state highway, county road or city street, for the
removal of forest products as defined in ORS 321.005, or the
product of forest products converted to a form other than logs at
or near the harvesting site, or when used for the construction or
maintenance of the road, thoroughfare or property, pursuant to a
written agreement or permit authorizing the use, construction or
maintenance of the road, thoroughfare or property, with:
(a) An agency of the United States;
(b) The { - State Board of Forestry - } { + Oregon Natural
Resources Commission + };
(c) The { - State Forester - } { + Director of the Oregon
Department of Natural Resources + }; or
(d) A licensee of an agency named in this subsection.
(8) Vehicles being used on any county road for the removal of
forest products as defined in ORS 321.005, or the products of
forest products converted to a form other than logs at or near
the harvesting site, if:
(a) The use is pursuant to a written agreement entered into
with the { - State Board of Forestry, the State Forester - }
{ + Director of the Oregon Department of Natural Resources, the
Oregon Natural Resources Commission + } or an agency of the
United States, authorizing the owner of the motor vehicle to use
the road and requiring the owner to pay for or to perform the
construction or maintenance of the county road, including any
operator of a motor vehicle retained to transport logs, poles and
piling for the owners who are exempt under this section;
(b) The { - board - } { + commission + }, officer or agency
that entered into the agreement or granted the permit, by
contract with the county court or board of county commissioners,
has assumed the responsibility for the construction or
maintenance of the county road; and
(c) Copies of the agreements or permits required by this
subsection are filed with the Director of Transportation.
(9) Vehicles being used in the transportation of persons for
hire if the operation:
(a) Is performed by a nonprofit entity;
(b) Is not in competition with a regular route full-service
scheduled carrier of persons that is subject to the provisions of
this chapter or a service provided by a mass transit district
formed under ORS chapter 267;
(c) Is performed by use of vehicles operating in compliance
with ORS 820.020 to 820.070; and
(d) Is approved by the Department of Transportation as
complying with paragraphs (a) to (c) of this subsection.
(10) Vehicles being used in transporting persons with
disabilities, with or without their supervisors or assistants, to
or from rehabilitation facilities or child care services if the
motor vehicle is a passenger motor vehicle with a seating
capacity of not more than 12 passengers. The exemption provided
by this subsection applies only when the motor vehicle is
operated by or under contract with any person responsible for the
administration of rehabilitation facilities as defined in ORS
344.710 to 344.730 or child care services provided by a facility
licensed under ORS 657A.030 and 657A.250 to 657A.450.
(11) Vehicles owned or operated by the United States or by any
governmental jurisdiction within the United States except when
owned or operated as a carrier of property for hire.
(12) Vehicles owned or operated by a mass transit district
created under ORS chapter 267.
(13) Vehicles owned or operated by, or under contract with, a
person responsible for the construction or reconstruction of a
highway under contract with the Department of Transportation or
with an agency of the United States when operated within the
immediate construction project as described in the governmental
agency contract during the construction period.
(14) Vehicles owned or operated by, or under contract with, a
charitable organization when exclusively engaged in performing
transportation, either one way or round trip, necessary to the
operation of the charitable organization. As used in this
subsection, 'charitable organization' means an organization that
has no capital stock and no provision for making dividends or
profits, but derives its funds principally from public and
private charity and holds them in trust for the promotion of the
welfare of others and not for profit. Any organization claiming
an exemption under this subsection shall file an affidavit with
the department stating that it is organized and operated in
accordance with the requirements of this subsection.
(15) Vehicles with a maximum speed that does not exceed 35
miles per hour that are designed for off-road use and that are
operated on the public highways in any one calendar year a number
of miles that does not exceed 15 percent of the total number of
miles the vehicle is operated for that calendar year.
(16) Passenger vehicles with a passenger seating capacity that
does not exceed five when used in the transportation of new
telephone books.
(17) A vehicle that is used in a limousine service operation in
which the destination and route traveled may be controlled by the
passenger and the fare is calculated on the basis of any
combination of initial fee, distance traveled and waiting time if
the vehicle:
(a) Is a passenger vehicle with a passenger seating capacity
that does not exceed eight;
(b) Carries passengers for hire between points in Oregon; and
(c) Operates on an irregular route basis.
(18) Fire trucks and rescue vehicles that are designated as
emergency vehicles by the Department of Transportation under ORS
801.260, while involved in emergency and related operations.
(19) A person who provides services related to the packing or
loading of household goods if the person does not:
(a) Provide or operate a motor vehicle for the movement of the
household goods; and
(b) Act as an agent for any person who does provide or operate
a motor vehicle for the movement of the household goods.
{ +
OREGON FOREST RESOURCES INSTITUTE + }
{ +
(Abolishment and Transfer of + }
{ +
Duties, Functions and Powers) + }
SECTION 2082. { + (1) The Oregon Forest Resources Institute is
abolished. On the operative date of this section, the tenure of
office of the board of directors of the Oregon Forest Resources
Institute ceases.
(2) All the duties, functions and powers of the Oregon Forest
Resources Institute are imposed upon, transferred to and vested
in the Oregon Department of Natural Resources. + }
{ +
(Transfer of Records, Property and Employees) + }
SECTION 2083. { + (1) The board of directors of the Oregon
Forest Resources Institute shall:
(a) Deliver to the Oregon Department of Natural Resources all
records and property within the jurisdiction of the board that
relate to the duties, functions and powers transferred by section
2082 of this 2011 Act; and
(b) Transfer to the Oregon Department of Natural Resources
those employees engaged primarily in the exercise of the duties,
functions and powers transferred by section 2082 of this 2011
Act.
(2) The Director of the Oregon Department of Natural Resources
shall take possession of the records and property, and shall take
charge of the employees and employ them in the exercise of the
duties, functions and powers transferred by section 2082 of this
2011 Act, without reduction of compensation but subject to change
or termination of employment or compensation as provided by law.
(3) The Governor shall resolve any dispute between the Oregon
Forest Resources Institute and the Oregon Department of Natural
Resources relating to transfers of records, property and
employees under this section, and the Governor's decision is
final. + }
{ +
(Transfer of Unexpended Revenues) + }
SECTION 2084. { + (1) The unexpended balances of amounts
authorized to be expended by the Oregon Forest Resources
Institute for the biennium beginning July 1, 2011, from revenues
dedicated, continuously appropriated, appropriated or otherwise
made available for the purpose of administering and enforcing the
duties, functions and powers transferred by section 2082 of this
2011 Act are transferred to and are available for expenditure by
the Oregon Department of Natural Resources for the biennium
beginning July 1, 2011, for the purpose of administering and
enforcing the duties, functions and powers transferred by section
2082 of this 2011 Act.
(2) The expenditure classifications, if any, established by
Acts authorizing or limiting expenditures by the Oregon Forest
Resources Institute remain applicable to expenditures by the
Oregon Department of Natural Resources under this section. + }
{ +
(Action, Proceeding and Prosecution) + }
SECTION 2085. { + The transfer of duties, functions and powers
to the Oregon Department of Natural Resources by section 2082 of
this 2011 Act does not affect any action, proceeding or
prosecution involving or with respect to such duties, functions
and powers begun before and pending at the time of the transfer,
except that the Oregon Department of Natural Resources is
substituted for the Oregon Forest Resources Institute in the
action, proceeding or prosecution. + }
{ +
(Liability, Duty and Obligation) + }
SECTION 2086. { + (1) Nothing in sections 2082 to 2088 of this
2011 Act, the amendments to statutes by sections 28 to 411, 422
to 576, 585 to 901, 912 to 1090, 1099 to 1112, 1122 to 1257, 1269
to 1749k, 1758 to 1780, 1791 to 2081 and 2091 to 2160 of this
2011 Act or the repeal of ORS 526.600, 526.610, 526.615, 526.620,
526.625, 526.632, 526.650, 526.660 or 526.670 by section 2161 of
this 2011 Act relieves a person of a liability, duty or
obligation accruing under or with respect to the duties,
functions and powers transferred by section 2082 of this 2011
Act. The Oregon Department of Natural Resources may undertake the
collection or enforcement of any such liability, duty or
obligation.
(2) The rights and obligations of the Oregon Forest Resources
Institute legally incurred under contracts, leases and business
transactions executed, entered into or begun before the operative
date of section 2082 of this 2011 Act are transferred to the
Oregon Department of Natural Resources. For the purpose of
succession to these rights and obligations, the Oregon Department
of Natural Resources is a continuation of the Oregon Forest
Resources Institute and not a new authority. + }
{ +
(Rules) + }
SECTION 2087. { + Notwithstanding the transfer of duties,
functions and powers by section 2082 of this 2011 Act, the rules
of the Oregon Forest Resources Institute in effect on the
operative date of section 2082 of this 2011 Act continue in
effect until superseded or repealed by rules of the Oregon
Department of Natural Resources. References in rules of the
Oregon Forest Resources Institute to the Oregon Forest Resources
Institute, or to an officer or employee of the Oregon Forest
Resources Institute, are considered to be references to the
Oregon Department of Natural Resources or to an officer or
employee of the Oregon Department of Natural Resources. + }
{ +
(References) + }
SECTION 2088. { + Whenever, in any uncodified law or
resolution of the Legislative Assembly or in any rule, document,
record or proceeding authorized by the Legislative Assembly,
reference is made to the Oregon Forest Resources Institute, or to
an officer or employee of the Oregon Forest Resources Institute,
the reference is considered to be a reference to the Oregon
Department of Natural Resources or to an officer or employee of
the Oregon Department of Natural Resources. + }
{ +
(Agency Name Change) + }
SECTION 2089. { + For the purpose of harmonizing and
clarifying statutory law, the Legislative Counsel may substitute
for words designating the 'Oregon Forest Resources Institute' or
its officers, wherever they occur in statutory law, words
designating the 'Oregon Department of Natural Resources' or its
officers. + }
{ +
(Fund Name Change) + }
SECTION 2090. { + For the purpose of harmonizing and
clarifying statutory law, the Legislative Counsel may substitute
for words designating the 'Oregon Forest Resources Institute
Fund, ' wherever they occur in statutory law, words designating
the ' Oregon Natural Resources Fund.' + }
{ +
(Conforming Amendments) + }
SECTION 2091. ORS 321.017 is amended to read:
321.017. (1) In addition to the taxes levied under ORS 321.015
(1) to (3), there hereby is levied a privilege tax upon taxpayers
on the harvesting of all merchantable forest products harvested
on forestlands in the amount provided in subsection (2) of this
section.
(2) The rate of tax levied in subsection (1) of this section
shall be established annually at the beginning of each calendar
year by the { - board of directors of the institute - } { +
Oregon Department of Natural Resources + }, at a rate not to
exceed 75 cents per thousand feet, board measure, on all
merchantable forest products harvested on forestlands. The
maximum tax rate prescribed by this subsection may be increased
by the { - board of directors - } { + department + } in an
amount equal to the previous year's increase in the Consumer
Price Index (Portland area -- all items) as published by the
Bureau of Labor Statistics of the United States Department of
Labor for the Portland, Oregon, area.
(3) The tax shall be measured by and be applicable to each per
thousand feet, board measure, and such shall be subject to and
determined by the procedures and provisions of ORS 321.015 (4)
and (5).
(4) The tax levied by subsection (1) of this section shall be
due and payable to the Department of Revenue in the manner and
procedure, including penalties and interest, as set forth for the
collection of the privilege tax in ORS 321.005 to 321.185.
(5) The revenue from the tax levied by subsection (1) of this
section shall be remitted to the State Treasurer who shall
deposit it in a suspense account established under ORS 321.145
(1). After payment of refunds, which shall be paid in the same
manner as other forest products harvest tax refunds are paid in
ORS 321.145 (2), the balance of the additional tax imposed under
subsection (1) of this section shall be deposited in the
{ - Oregon Forest Resources Institute Fund. - } { + Oregon
Natural Resources Fund. Moneys deposited in the fund under this
subsection are continuously appropriated to the department for
purposes related to the administration of ORS 526.640 and
526.645. + }
SECTION 2092. ORS 526.605 is amended to read:
526.605. The State of Oregon recognizes that the forest
products industry is one of the largest industries in the state.
It provides monetary returns to labor, forestland owners, mill
owners and operators, public timber purchasers, timber
harvesters, investors and others. It is a source of local and
state taxes. It is a major supporter of many secondary businesses
that supply goods and services in our communities. The welfare of
the state is therefore largely dependent on the health and vigor
of the forest products industry. The { - Oregon Forest
Resources Institute's - } objectives { + of the Oregon
Department of Natural Resources under ORS + } { + 526.640 and
526.645 + } support this important industry and the wise
stewardship of natural resources for the benefit of Oregonians.
SECTION 2093. ORS 526.640 is amended to read:
526.640. The { - Oregon Forest Resources Institute - }
{ + Oregon Department of Natural Resources + } shall enhance and
provide support for Oregon's forest products industry. In
achieving these objectives the { - institute - }
{ + department + } may:
(1) Increase public understanding of the practice of forestry
and the use and benefits of forest products.
(2) Support education and cooperative efforts among private
forest landowners and within the forest products industry to:
(a) Practice good stewardship of the land, and protect water
and other public resources to the maximum extent practicable;
(b) Encourage the conversion of underproductive rural lands to
forest uses, and provide information to private landowners on the
means to facilitate such conversions;
(c) Encourage, facilitate and assist private forest landowners
to meet or exceed state and federal regulations governing forest
operations;
(d) Evaluate and communicate to private forest landowners the
stewardship responsibility expectations of the public; and
(e) { - In cooperation with the State Forestry Department,
Oregon State University and other appropriate government or
private entities, - } Serve as a clearinghouse for the
dissemination of information to private forest landowners,
through conferences, workshops and other means, about modern land
management practices.
(3) Conduct research and help facilitate continued improvement
in wood utilization and in secondary wood products manufacturing.
(4) Publish and sell publications and other materials relating
to any program or function authorized by ORS { - 526.600 to
526.675 - } { + 526.645 and this section + }. The
{ - institute - } { + department + } may contract for the
publication of the materials described in this subsection,
including the research, design and writing of the materials. The
contract may include, among other matters, provisions for advance
payment or reimbursement for services performed under the
contract. The price of such publications shall include the cost
of publishing and distributing the materials. All moneys received
by the { - institute - } { + department + } from the sale of
publications shall be deposited in the { - Oregon Forest
Resources Institute Fund. - } { + Oregon Natural Resources
Fund. Moneys deposited in the fund under this subsection are
continuously appropriated to the department for purposes of the
functions listed in ORS 526.645 and this section. + }
SECTION 2094. ORS 526.645 is amended to read:
526.645. In addition to the functions listed in ORS 526.640,
the { - Oregon Forest Resources Institute - } { + Oregon
Department of Natural Resources + } may:
(1) Conduct research { + related to the functions listed in
ORS 526.640 + } and disseminate reliable information based upon
{ - such - } { + that + } research.
{ - (2) Sue and be sued as an institute without individual
liability for acts of the board of directors within the scope of
the powers conferred upon it by law. - }
{ - (3) Enter into contracts which the board of directors
considers necessary to carry out the duties, functions and powers
imposed upon the institute by law. - }
{ - (4) Borrow money in amounts not to exceed 50 percent of
the board of directors' estimate of the institute's revenue from
the current year's harvest. - }
{ - (5) Appoint subordinate officers and employees of the
institute and prescribe their duties and fix their
compensation. - }
{ - (6) - } { + (2) + } Adopt, rescind, modify or amend all
proper orders, regulations, rules and resolutions for the
exercise of its duties, functions and powers { + under ORS
526.640 + }.
SECTION 2095. ORS 526.655 is amended to read:
526.655. The { - Oregon Forest Resources Institute - }
{ + Oregon Department of Natural Resources + } may accept
grants, donations or gifts from any source for expenditures
{ - for any purposes consistent with the purposes of ORS 526.600
to 526.675. All funds so received shall be handled as specified
in ORS 526.600 to 526.675 for other moneys received by the
institute - } { + related to the functions listed in ORS
526.640 and 526.645 + }.
SECTION 2096. ORS 526.665 is amended to read:
526.665. { - Except as otherwise provided in ORS 526.600 to
526.675, - } ORS 291.026, 291.201 to 291.222, 291.232 to
291.260, 291.322 to 291.336, 292.210 to 292.250, 293.260 to
293.280, 293.295 to 293.346 and 293.590 to 293.640 do not apply
to the
{ - Oregon Forest Resources Institute or to the administration
and enforcement of ORS 526.600 to 526.675 - }
{ + administration and enforcement of ORS 526.640 and
526.645 + }.
SECTION 2097. ORS 526.675 is amended to read:
526.675. { - (1) The Oregon Forest Resources Institute Fund
is created in the State Treasury, separate and distinct from the
General Fund. Except as otherwise provided by law, all moneys
received by the Oregon Forest Resources Institute shall be paid
into the State Treasury and credited to the fund. All moneys in
the fund are appropriated continuously to the institute to carry
out its duties, functions and powers. Interest earnings on all
moneys in the fund shall be retained in the fund. - }
{ - (2) The board of directors of the institute may repay
moneys from the fund to persons who paid a privilege tax levied
under ORS 321.017. The board may repay the amount of tax paid
upon application by the person who paid the tax. The board shall
adopt rules necessary for the implementation of this subsection.
Rules adopted by the board shall include standards for the
repayment of moneys and limits on the amount that may be
requested. - }
{ + (1) The Oregon Department of Natural Resources may repay
moneys from the Oregon Natural Resources Fund to persons who paid
a privilege tax levied under ORS 321.017. The department may
repay the amount of tax paid upon application by the person who
paid the tax.
(2) The Director of the Oregon Department of Natural Resources
shall adopt rules necessary for the implementation of subsection
(1) of this section. Rules adopted by the director shall include
standards for the repayment of moneys and limits on the amount
that may be requested. + }
{ +
ADDITIONAL CONFORMING AMENDMENTS + }
SECTION 2098. ORS 30.943 is amended to read:
30.943. The Department of Environmental Quality,
{ - Department of State Lands, - } State Department of
Agriculture or { - State Forestry Department - } { + Oregon
Department of Natural Resources + } is not required to
investigate complaints if the agency has reason to believe that
the complaint is based on practices protected by ORS 30.930
{ - or - } { + to + } 30.947.
SECTION 2098a. ORS 94.508 is amended to read:
94.508. (1) A development agreement shall not be approved by
the governing body of a city or county unless the governing body
finds that the agreement is consistent with local regulations
then in place for the city or county.
(2) The governing body of a city or county shall approve a
development agreement or amend a development agreement by
adoption of an ordinance declaring approval or setting forth the
amendments to the agreement. Notwithstanding ORS 197.015
{ - (10)(b) - } { + (6)(b) + }, the approval or amendment of a
development agreement is a land use decision under ORS chapter
197.
SECTION 2098b. ORS 105.810 is amended to read:
105.810. (1) Except as provided in ORS 477.090 and subsections
(4) to (7) of this section, whenever any person, without lawful
authority, willfully injures or severs from the land of another
any produce thereof or cuts down, girdles or otherwise injures or
carries off any tree, timber or shrub on the land of another
person, or of the state, county, United States or any public
corporation, or on the street or highway in front of any person's
house, or in any village, town or city lot, or cultivated
grounds, or on the common or public grounds of any village, town
or city, or on the street or highway in front thereof, in an
action by such person, village, town, city, the United States,
state, county, or public corporation, against the person
committing such trespasses if judgment is given for the
plaintiff, it shall be given for treble the amount of damages
claimed, or assessed for the trespass. In any such action, upon
plaintiff's proof of ownership of the premises and the commission
by the defendant of any of the acts mentioned in this section, it
is prima facie evidence that the acts were committed by the
defendant willfully, intentionally and without plaintiff's
consent.
(2) A court may, in its discretion, award to a prevailing party
under subsection (1) of this section reimbursement of reasonable
costs of litigation including but not limited to investigation
costs and attorney fees.
(3) A court may, in its discretion, award to a prevailing
plaintiff under subsection (1) of this section reasonable costs
of reforestation activities related to the injury sustained by
the plaintiff.
(4) A contract logger is liable only for actual damages in an
action under this section if:
(a) The contract logger conducts an operation under a signed,
written contract with a person the contract logger reasonably
believes to be the legal owner of the produce, trees, timber or
shrubs in the operation area;
(b) The contract identifies the operation area by a metes and
bounds description or other sufficient legal description;
(c) Before the contract logger begins harvesting in the
operation area, the person who engages the contract logger under
the contract:
(A) Locates, marks and protects from damage all survey
monuments in the operation area;
(B) Flags, stakes or otherwise clearly marks the boundaries of
the operation area; and
(C) Provides the contract logger with a copy of the deed,
contract or other instrument that the person who engages the
contract logger under the contract relies upon as proof of
ownership of the produce, trees, timber or shrubs in the
operation area;
(d) The contract logger verifies the deed, contract or
instrument described in paragraph (c)(C) of this subsection
against the metes and bounds description or other sufficient
legal description in the contract;
(e) The contract logger retains a copy of the deed, contract or
instrument described in paragraph (c)(C) of this subsection for
at least three years; and
(f) The contract logger does not receive written notice that
any person has a claim of title to the land or timber in the
operation area that is adverse to the person who engages the
contract logger under the contract.
(5) Subsection (4) of this section does not affect an action
for double or treble damages against a contract logger for
damages outside the operation area as described in subsection (4)
of this section.
(6) If an action is brought under this section against a
contract logger, and the contract logger was engaged to harvest
the timber by a person who purported to own the timber or to have
authority to harvest the timber, the person who engaged the
contract logger must be joined in the action as a defendant
unless jurisdiction over the person cannot be had. If a judgment
is entered against the contract logger and against the person who
engaged the contract logger, the contract logger shall not be
required to pay any part of the judgment unless the plaintiff
establishes that the judgment cannot be enforced against the
person who engaged the contract logger. The plaintiff may enforce
the judgment against the contract logger only if:
(a) The plaintiff makes a good faith effort for at least six
months after the judgment becomes final and subject to execution
to enforce the judgment against the person who engaged the
contract logger; and
(b) The court determines, upon motion of the plaintiff, that
all or part of the judgment cannot be collected from the person
who engaged the contract logger.
(7) Subsections (2) and (3) of this section apply in an action
against a contract logger under subsection (4) of this section.
(8) For purposes of this section:
(a) 'Contract logger' means a person engaged in a commercial
timber harvesting operation.
(b) 'Operation' has the meaning given in ORS 527.620
{ - (12) - } .
SECTION 2099. ORS 182.535 is amended to read:
182.535. For purposes of ORS 182.535 to 182.550, 'natural
resource agency' means the Department of Environmental Quality,
the State Department of Agriculture, { - the Water Resources
Department, the State Department of Fish and Wildlife, the State
Forestry Department, the Department of State Lands, the
Department of Education, the State Department of Geology and
Mineral Industries, the Department of Land Conservation and
Development, - } { + the Oregon Department of Natural Resources,
the Department of Education, + }the State Marine Board, the
Public Utility Commission, the Department of Transportation, the
State Fire Marshal and the Oregon Health Authority.
SECTION 2100. ORS 183.457 is amended to read:
183.457. (1) Notwithstanding ORS 8.690, 9.160 and 9.320, and
unless otherwise authorized by another law, a person
participating in a contested case hearing conducted by an agency
described in this subsection may be represented by an attorney or
by an authorized representative subject to the provisions of
subsection (2) of this section. The Attorney General shall
prepare model rules for proceedings with lay representation that
do not have the effect of precluding lay representation. No rule
adopted by a state agency shall have the effect of precluding lay
representation. The agencies before which an authorized
representative may appear are:
(a) The State Landscape Contractors Board in the administration
of the Landscape Contractors Law.
(b) The State Department of Energy and the Energy Facility
Siting Council.
(c) The { - Environmental Quality Commission and the
Department of Environmental Quality - } { + Oregon Department
of Natural Resources + }.
(d) The Department of Consumer and Business Services for
proceedings in which an insured appears pursuant to ORS 737.505.
(e) The Department of Consumer and Business Services and any
other agency for the purpose of proceedings to enforce the state
building code, as defined by ORS 455.010.
(f) The State Fire Marshal in the Department of State Police.
{ - (g) The Department of State Lands for proceedings
regarding the issuance or denial of fill or removal permits under
ORS 196.800 to 196.825. - }
{ - (h) - } { + (g) + } The Public Utility Commission.
{ - (i) The Water Resources Commission and the Water
Resources Department. - }
{ - (j) The Land Conservation and Development Commission and
the Department of Land Conservation and Development. - }
{ - (k) - } { + (h) + } The State Department of
Agriculture, for purposes of hearings under ORS 215.705.
{ - (L) - } { + (i) + } The Bureau of Labor and Industries.
(2) A person participating in a contested case hearing as
provided in subsection (1) of this section may appear by an
authorized representative if:
(a) The agency conducting the contested case hearing has
determined that appearance of such a person by an authorized
representative will not hinder the orderly and timely development
of the record in the type of contested case hearing being
conducted;
(b) The agency conducting the contested case hearing allows, by
rule, authorized representatives to appear on behalf of such
participants in the type of contested case hearing being
conducted; and
(c) The officer presiding at the contested case hearing may
exercise discretion to limit an authorized representative's
presentation of evidence, examination and cross-examination of
witnesses, or presentation of factual arguments to ensure the
orderly and timely development of the hearing record, and shall
not allow an authorized representative to present legal arguments
except to the extent authorized under subsection (3) of this
section.
(3) The officer presiding at a contested case hearing in which
an authorized representative appears under the provisions of this
section may allow the authorized representative to present
evidence, examine and cross-examine witnesses, and make arguments
relating to the:
(a) Application of statutes and rules to the facts in the
contested case;
(b) Actions taken by the agency in the past in similar
situations;
(c) Literal meaning of the statutes or rules at issue in the
contested case;
(d) Admissibility of evidence; and
(e) Proper procedures to be used in the contested case hearing.
(4) Upon judicial review, no limitation imposed by an agency
presiding officer on the participation of an authorized
representative shall be the basis for reversal or remand of
agency action unless the limitation resulted in substantial
prejudice to a person entitled to judicial review of the agency
action.
(5) For the purposes of this section, 'authorized
representative' means a member of a participating partnership, an
authorized officer or regular employee of a participating
corporation, association or organized group, or an authorized
officer or employee of a participating governmental authority
other than a state agency.
SECTION 2101. ORS 183.700 is amended to read:
183.700. (1) As used in this section and ORS 183.702, ' permit'
means an individual and particularized license, permit,
certificate, approval, registration or similar form of permission
required by law to pursue any activity specified in this section,
for which an agency must weigh information, make specific
findings and make determinations on a case-by-case basis for each
applicant.
(2) The requirements of this section and ORS 183.702 apply to
the following permits granted by:
(a) The Department of Environmental Quality under ORS 448.415,
454.655, 454.695, 454.790, 454.800, 459.205, 465.315, 465.325,
466.140, 466.145, 466.706 to 466.882, 468A.040, 468A.310,
468B.035, 468B.040, 468B.045, 468B.050 and 468B.095.
{ - (b) The Department of State Lands under ORS 196.800 to
196.900 and 390.805 to 390.925. - }
{ - (c) The Water Resources Department under ORS chapters 537
and 540, except those permits issued under ORS 537.747 to
537.765. - }
{ - (d) - } { + (b) + } The State Department of Agriculture
pursuant to ORS 468B.200 to 468B.230 and 622.250.
{ - (e) The State Department of Fish and Wildlife pursuant to
ORS 497.142, 497.218, 497.228, 497.238, 497.248, 497.252,
497.298, 497.308, 498.019, 498.279, 508.106, 508.300, 508.760,
508.775, 508.801, 508.840, 508.880, 508.926 and 509.140. - }
{ + (c) The Oregon Department of Natural Resources under ORS
196.800 to 196.900, 390.805 to 390.925, 497.142, 497.218,
497.228, 497.238, 497.248, 497.252, 497.298, 497.308, 498.019,
498.279, 508.106, 508.300, 508.760, 508.775, 508.801, 508.840,
508.880, 508.926 and 509.140 and ORS chapters 537 and 540, except
those permits issued under ORS 537.747 to 537.765. + }
{ - (f) - } { + (d) + } The Department of Transportation
pursuant to ORS 374.312.
SECTION 2102. ORS 184.668 is amended to read:
184.668. (1) { - Each state agency that issues - } { + When
issuing + } a permit or other governmental authorization
necessary for the construction or siting of a transportation
project undertaken by the Department of Transportation { + , each
state agency + } shall:
(a) Upon request from the department, provide a list of
applicable standards and criteria for the permit or other
governmental authorization;
(b) Upon request from the department, provide technical
assistance concerning how to complete the permitting or other
governmental authorization process in the most cost-effective and
timely manner consistent with legal requirements administered by
the agency; and
(c) Within the authority and discretion otherwise afforded the
agency by law, expedite review of, and the final decision on, the
permit or other governmental authorization.
(2) When a local land use decision concerning a transportation
project undertaken by the department involves the application of
statutes or rules that are administered by a state agency, upon
request from the department the state agency shall provide
technical assistance to the department concerning the application
of the statute or rule to the transportation project. If a state
agency provides technical assistance to the department under this
subsection, upon request from the department the state agency
shall participate in the local land use decision in order to
place the substance of its assistance to the department on the
record of the local proceeding. If the local land use decision is
appealed, the department may request that the state agency
participate in the appeal.
(3) As used in this section:
{ - (a) 'State agency' or 'agency' means: - }
{ - (A) The Department of Environmental Quality; - }
{ - (B) The Department of Land Conservation and
Development; - }
{ - (C) The Department of State Lands; - }
{ - (D) The State Department of Agriculture; - }
{ - (E) The State Department of Fish and Wildlife; - }
{ - (F) The State Department of Geology and Mineral
Industries; - }
{ - (G) The State Forestry Department; and - }
{ - (H) The State Parks and Recreation Department. - }
{ + (a) 'State agency' or 'agency' means the Department of
Environmental Quality, the State Department of Agriculture or the
Oregon Department of Natural Resources; and + }
(b) 'Transportation project' has the meaning given that term in
ORS 367.010.
SECTION 2103. ORS 195.250 is amended to read:
195.250. As used in ORS 195.250 to 195.260:
(1) 'Further review area' means an area of land within which
further site specific review should occur before land management
or building activities begin because { - either the State
Department of Geology and Mineral Industries or the State
Forestry Department - } { + the Oregon Department of Natural
Resources + } determines that the area reasonably could be
expected to include sites that experience rapidly moving
landslides as a result of excessive rainfall.
(2) 'Landslide' means any detached mass of soil, rock or debris
that is of sufficient size to cause damage and that moves down a
slope or a stream channel.
(3) 'Rapidly moving landslide' means a landslide that is
difficult for people to outrun or escape.
SECTION 2104. ORS 196.408 is amended to read:
196.408. (1) { - State agencies - } { + The Oregon
Department of Natural Resources + } shall, to the maximum extent
practicable, coordinate development of coastal and ocean
information systems with those in adjacent states.
(2) { - State agencies - } { + The department and any other
state agency + } with responsibility for oil spill and hazardous
material response, damage assessment and compensation in the
marine environment shall, to the maximum extent practicable,
coordinate Oregon's plans, programs, policies and techniques with
those of adjacent states.
(3) { - State agencies which have - } { + The department
and any other state agency that has + } jurisdiction over water
areas, the seabed and resources adjacent to offshore rocks and
islands may coordinate with adjacent states and federal agencies
to develop programs and regulations to manage uses and activities
of ocean areas adjacent to coastal cliffs and offshore rocks and
islands managed within the National Wildlife Refuge System.
(4) The { - State Department of Fish and Wildlife - }
{ + department + } may coordinate with fishery managers in
adjacent states to develop a uniform fish catch and monitoring
system.
SECTION 2105. ORS 196.435 is amended to read:
196.435. (1) The { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + }
is designated the primary agency for coordination of ocean
resources planning. The department is designated the State
Coastal Management Agency for purposes of carrying out and
responding to the Coastal Zone Management Act of 1972. The
department shall assist:
(a) The Governor with the Governor's duties and opportunities
to respond to federal agency programs and activities affecting
coastal and ocean resources; and
(b) The Ocean Policy Advisory Council.
(2) The provisions of ORS 196.405 to 196.515 do not change
statutorily and constitutionally mandated responsibilities of
other state agencies.
(3) ORS 196.405 to 196.515 do not provide the { - Land
Conservation and Development Commission - } { + Director of the
Oregon Department of Natural Resources or the Oregon Natural
Resources Commission + } with authority to adopt specific
regulation of ocean resources or ocean uses.
SECTION 2106. ORS 196.438 is amended to read:
196.438. (1) The Governor shall establish an Ocean Policy
Advisory Council that is staffed by the { - State Department of
Fish and Wildlife, the Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + }
and other departments as the Governor deems necessary. The
council shall be composed of:
(a) The Governor or the Governor's designee, as a nonvoting
member;
(b) The director or the director's designee of the following
agencies, as nonvoting members:
(A) Department of Environmental Quality;
(B) { - State Department of Fish and Wildlife; - }
{ + Oregon Department of Natural Resources; and + }
{ - (C) State Department of Geology and Mineral
Industries; - }
{ - (D) Department of Land Conservation and Development; - }
{ - (E) Department of State Lands; - }
{ - (F) Parks and Recreation Department; - }
{ - (G) - } { + (C) + } State Department of Agriculture;
{ - and - }
{ - (H) - } { + (c) + } On behalf of the State Board of
Higher Education, the director or director's designee of Oregon
State University, Sea Grant College;
{ - (c) - } { + (d) + } A member of the governing body of
Coos, Curry, Douglas or Lane County to be appointed by the
Governor, chosen in consultation with and with the approval of a
majority of the members of the governing bodies of Coos, Curry,
Douglas and Lane Counties;
{ - (d) - } { + (e) + } A member of the governing body of
Clatsop, Lincoln or Tillamook County to be appointed by the
Governor, chosen in consultation with and with the approval of a
majority of the members of the governing bodies of Clatsop,
Lincoln and Tillamook Counties;
{ - (e) - } { + (f) + } An elected city official from a
coastal city bordering the territorial sea to be appointed by the
Governor with advice from an Oregon coastal zone management
association;
{ - (f) - } { + (g) + } A representative of each of the
following ocean interests, to be appointed by the Governor, and
subject to confirmation by the Senate pursuant to section 4,
Article III, Oregon Constitution:
(A) Commercial ocean fisheries of the North Coast from Newport
north;
(B) Commercial ocean fisheries of the South Coast south of
Newport;
(C) Charter, sport or recreation ocean fisheries of the North
Coast from Newport north;
(D) Charter, sport or recreation ocean fisheries of the South
Coast south of Newport;
(E) Ports marine navigation or transportation;
(F) Coastal nonfishing recreation interests of surfing, diving,
kayaking or windsurfing;
(G) A coastal conservation or environmental organization;
(H) Oregon Indian tribes appointed after consultation with the
Commission on Indian Services;
(I) A coastwide organization representing a majority of small
ports and local governments, as a nonvoting member; and
(J) A statewide conservation or environmental organization; and
{ - (g) - } { + (h) + } Two representatives of the public,
at least one of whom shall be a resident of a county bordering
the territorial sea, to be appointed by the Governor.
(2) The term of office of each member appointed by the Governor
is four years, but a member serves at the pleasure of the
Governor. Before the expiration of the term of a member, the
Governor shall appoint a successor whose term begins on July 1
next following. A member is eligible for reappointment. If there
is a vacancy for any cause, the Governor shall make an
appointment to become immediately effective for the unexpired
term.
(3) A majority of the voting members of the council constitutes
a quorum for the transaction of business.
(4) The voting members of the council shall elect a person from
among the membership to chair the council.
SECTION 2107. ORS 196.443 is amended to read:
196.443. (1) The purposes of the Ocean Policy Advisory Council
are to:
(a) Periodically review the Territorial Sea Plan and submit
recommendations for the plan to state agencies represented on the
council. The council shall recommend deletions to the Territorial
Sea Plan of all site designations and management prescriptions to
the { - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + }.
(b) Advance the policies of ORS 196.420 to the federal
government and any multistate bodies.
(c) Provide a forum for discussing ocean resource policy,
planning and management issues and, when appropriate, mediating
disagreements.
(d) Recommend amendments to the Oregon Ocean Resources
Management Plan as needed. If the recommended amendments to the
plan incorporate the establishment of a system of limited marine
reserves or other protected areas, the council also shall perform
an economic analysis of short-term and long-term effects that the
establishment of such areas would have on coastal communities.
Any recommended amendments related to marine reserves or marine
protected areas shall be submitted to the { - State Fish and
Wildlife - } commission for review and approval.
(e) Offer advice to the Governor, the State Land Board, state
agencies and local governments on specific ocean resources
management issues.
(f) Encourage participation of federal agencies in discussion
and resolution of ocean resources planning and management issues
affecting Oregon.
(2) The Ocean Policy Advisory Council may not, except to the
extent of fulfilling its advisory capacity under subsection
(1)(e) of this section, establish fishing seasons, harvest
allocations, geographic restrictions or other harvest
restrictions.
SECTION 2108. ORS 196.465 is amended to read:
196.465. (1) The Oregon Ocean Resources Management Plan and
Territorial Sea Plan, when adopted pursuant to ORS 196.471, shall
be compatible with acknowledged comprehensive plans of adjacent
coastal counties and cities.
(2) To { - insure - } { + ensure + } that the plan is
compatible with the comprehensive plans of adjacent coastal
counties and cities, the Ocean Policy Advisory Council shall work
with the { - Department of Land Conservation and
Development - } { + Oregon Department of Natural Resources + }
and any Oregon coastal zone management association to:
(a) Meet and consult with local government officials;
(b) Distribute draft materials and working papers for review
and solicit comment on council materials; and
(c) Provide technical and policy information to local
governments about ocean resource issues.
SECTION 2109. ORS 196.471 is amended to read:
196.471. (1) The { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + }
shall review the Territorial Sea Plan and any subsequent
amendments recommended by the Ocean Policy Advisory Council to
either the Territorial Sea Plan or the Oregon Ocean Resources
Management Plan and make findings that the plan or amendments:
(a) Carry out the policies of ORS 196.405 to 196.515; and
(b) Are consistent with applicable statewide planning goals,
with emphasis on the four coastal goals.
(2) After making the findings required by subsection (1) of
this section, the commission shall adopt the Territorial Sea Plan
or proposed amendments as part of the Oregon Coastal Management
Program.
(3) If the commission does not make the findings required by
subsection (1) of this section, the commission shall return the
plan or amendments to the council for revision. The commission
may specify any needed revisions.
(4) Upon adoption of the Territorial Sea Plan or subsequent
amendments the commission may, after consultation with affected
state agencies, identify amendments to agency ocean or coastal
resource management programs necessary to conform to the
provisions of the adopted plan.
SECTION 2110. ORS 196.485 is amended to read:
196.485. (1) If a state agency incorporates the Oregon Ocean
Resources Management Plan and Territorial Sea Plan by reference
in its coordination program and, upon a finding by the { - Land
Conservation and Development Commission - } { + Oregon Natural
Resources Commission + } that the agency has amended its rules,
procedures and standards to conform with the objectives and
requirements of the plan and Territorial Sea Plan, the state
agency shall satisfy the requirements of state agency planning
and coordination required by ORS 197.180 for ocean planning.
(2) If a state agency does not incorporate the plan or
Territorial Sea Plan in its coordination program, the agency
shall be subject to the state agency coordination requirements of
ORS chapters 195, 196 and 197 for state agency programs,
procedures and standards that in any way affect ocean resources.
(3) State agency programs or rules for management of ocean
resources or ocean uses shall be consistent with the Oregon Ocean
Resources Management Plan and the Territorial Sea Plan.
SECTION 2111. ORS 196.540 is amended to read:
196.540. The { - State Department of Fish and Wildlife, State
Fish and Wildlife Commission - } , { + Oregon Department of
Natural Resources, Oregon Natural Resources Commission, + } State
Land Board and relevant state agencies shall, consistent with
existing statutory authority, implement the November 29, 2008,
recommendations from the Ocean Policy Advisory Council on marine
reserves by:
(1) Adopting rules to establish, study, monitor, evaluate and
enforce a pilot marine reserve at Otter Rock and a pilot marine
reserve and a marine protected area at Redfish Rocks;
(2) Studying and evaluating potential marine reserves at Cape
Falcon, Cascade Head and Cape Perpetua; and
(3) Supporting the development of a marine reserve proposal at
Cape Arago-Seven Devils.
SECTION 2112. ORS 196.545 is amended to read:
196.545. (1) The { - State Department of Fish and
Wildlife - } { + Oregon Department of Natural Resources + }, in
consultation with members from the scientific and technical
advisory committee established under ORS 196.451, other relevant
marine and fishery scientists, relevant state agencies, ocean
users and coastal communities shall implement the activities
described in ORS 196.540 by developing a work plan.
(2) The work plan shall contain the following elements
regarding the marine reserves described in ORS 196.540:
(a) A biological assessment, including information on habitat
characterization, biological resources, local knowledge and, for
the established pilot marine reserves, monitoring plans.
(b) A socioeconomic assessment, including a description of
human uses, net effects on sport and commercial fisheries and
communities and, for the established pilot marine reserves,
monitoring plans.
(c) Formation of community teams, with diverse and balanced
stakeholder representation that includes local government,
recreational fishing industry, commercial fishing industry,
nonfishing industry, recreationalists, conservation, coastal
watershed councils, relevant marine and avian scientists, to
collaborate and develop recommendations for potential marine
reserves, considering the biological and socioeconomic
information developed under this section. Collaboration may be
facilitated by a neutral outside party hired through a
competitive bidding process.
(d) Provision of information on the process and data gathered
to interested parties and made available to the public.
(e) Development of scientifically based goals specific to each
of the marine reserve sites, incorporating continuity and
cumulative outcomes, benefits and impacts.
(f) Provision of baseline data on Oregon's territorial sea, as
defined in ORS 196.405.
(g) Development of an enforcement plan in consultation with the
Oregon State Police and representatives from affected user
groups.
(h) Use of communities and volunteers to assist in implementing
the work plan where feasible and practical.
(3) The data and recommendations produced from the work plan
and other available nearshore data shall be used by the
{ - State Department of Fish and Wildlife - } { + Oregon
Department of Natural Resources + }, in consultation with the
Ocean Policy Advisory Council, to recommend the number, size,
location and restriction limits of the potential sites for marine
reserve designation, consistent with Executive Order 08-07. If,
through this process, it is determined that other appropriate
sites need to be considered or that potential sites are not
consistent with Executive Order 08-07, then the data and
recommendations produced shall be provided to the public, the
{ - State Department of Fish and Wildlife - }
{ + department + } and other relevant state agencies for future
purposes relevant to nearshore management.
SECTION 2113. ORS 196.550 is amended to read:
196.550. (1) The { - State Department of Fish and
Wildlife - } { + Oregon Department of Natural Resources + } may
accept only gifts, grants or contributions from any source for
deposit in the { - State Wildlife Fund established in ORS
496.300 - } { + Oregon Natural Resources Fund + } that are
consistent with the department's work plan specified in ORS
196.545.
(2) Any designation of marine reserves in Oregon's territorial
sea must include commitments by relevant state agencies to pursue
long-term funding necessary to enforce prohibitions, support
necessary research and monitoring and provide for public
education.
(3) If funding cannot be secured to meet the enforcement and
research-based monitoring needs associated with the goals
specified in ORS 196.545 (2)(e), { - agencies responsible for
managing the marine reserves shall make recommendations to the
State Fish and Wildlife Commission and - } { + the Oregon
Natural Resources Commission shall make recommendations to + }
the Legislative Assembly and initiate actions to scale down or
suspend fisheries prohibitions in the marine reserves.
SECTION 2114. ORS 196.555 is amended to read:
196.555. Designation of marine reserves requires periodic
reporting by the { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + } in consultation
with other relevant state agencies on the accomplishment of the
goals described in ORS 196.545 (2)(e). The { - State Department
of Fish and Wildlife - } { + department + } and the State Land
Board shall, based on review of the periodic reporting, initiate
appropriate rulemaking adjustments that may include size,
location and restrictions on marine reserves.
SECTION 2114a. ORS 197.505 is amended to read:
197.505. As used in ORS 197.505 to 197.540:
(1) 'Public facilities' means those public facilities for which
a public facilities plan is required under ORS 197.712.
(2) 'Special district' refers to only those entities as defined
in ORS 197.015 { - (19) - } { + (15) + } that provide
services for which public facilities plans are required.
SECTION 2115. ORS 215.730 is amended to read:
215.730. (1) A local government shall require as a condition of
approval of a single-family dwelling allowed under ORS 215.705 on
lands zoned forestland that:
(a)(A) If the lot or parcel is more than 30 acres in eastern
Oregon as defined in ORS 321.805, the property owner submits a
stocking survey report to the assessor and the assessor verifies
that the minimum stocking requirements adopted under ORS 527.610
to 527.770 have been met; or
(B) If the lot or parcel is more than 10 acres in western
Oregon as defined in ORS 321.257, the property owner submits a
stocking survey report to the assessor and the assessor verifies
that the minimum stocking requirements adopted under ORS 527.610
to 527.770 have been met.
(b) The dwelling meets the following requirements:
(A) The dwelling has a fire retardant roof.
(B) The dwelling will not be sited on a slope of greater than
40 percent.
(C) Evidence is provided that the domestic water supply is from
a source authorized by the { - Water Resources Department - }
{ + Oregon Department of Natural Resources + } and not from a
Class II stream as designated by the { - State Board of
Forestry - } { + Oregon Natural Resources Commission + }.
(D) The dwelling is located upon a parcel within a fire
protection district or is provided with residential fire
protection by contract.
(E) If the dwelling is not within a fire protection district,
the applicant provides evidence that the applicant has asked to
be included in the nearest such district.
(F) If the dwelling has a chimney or chimneys, each chimney has
a spark arrester.
(G) The owner provides and maintains primary fuel-free break
and secondary break areas on land surrounding the dwelling that
is owned or controlled by the owner.
(2)(a) If a governing body determines that meeting the
requirement of subsection (1)(b)(D) of this section would be
impracticable, the governing body may provide an alternative
means for protecting the dwelling from fire hazards. The means
selected may include a fire sprinkling system, on-site equipment
and water storage or other methods that are reasonable, given the
site conditions.
(b) If a water supply is required under this subsection, it
shall be a swimming pool, pond, lake or similar body of water
that at all times contains at least 4,000 gallons or a stream
that has a minimum flow of at least one cubic foot per second.
Road access shall be provided to within 15 feet of the water's
edge for fire-fighting pumping units, and the road access shall
accommodate a turnaround for fire-fighting equipment.
SECTION 2116. ORS 244.050 is amended to read:
244.050. (1) On or before April 15 of each year the following
persons shall file with the Oregon Government Ethics Commission a
verified statement of economic interest as required under this
chapter:
(a) The Governor, Secretary of State, State Treasurer, Attorney
General, Commissioner of the Bureau of Labor and Industries,
Superintendent of Public Instruction, district attorneys and
members of the Legislative Assembly.
(b) Any judicial officer, including justices of the peace and
municipal judges, except any pro tem judicial officer who does
not otherwise serve as a judicial officer.
(c) Any candidate for a public office designated in paragraph
(a) or (b) of this subsection.
(d) The Deputy Attorney General.
(e) The Legislative Administrator, the Legislative Counsel, the
Legislative Fiscal Officer, the Secretary of the Senate and the
Chief Clerk of the House of Representatives.
(f) The Chancellor and Vice Chancellors of the Oregon
University System and the president and vice presidents, or their
administrative equivalents, in each institution under the
jurisdiction of the State Board of Higher Education.
(g) The following state officers:
(A) Adjutant General.
(B) Director of Agriculture.
(C) Manager of State Accident Insurance Fund Corporation.
{ - (D) Water Resources Director. - }
{ + (D) Director of the Oregon Department of Natural
Resources. + }
(E) Director of Department of Environmental Quality.
(F) Director of Oregon Department of Administrative Services.
{ - (G) State Fish and Wildlife Director. - }
{ - (H) State Forester. - }
{ - (I) State Geologist. - }
{ - (J) - } { + (G) + } Director of Human Services.
{ - (K) - } { + (H) + } Director of the Department of
Consumer and Business Services.
{ - (L) Director of the Department of State Lands. - }
{ - (M) - } { + (I) + } State Librarian.
{ - (N) - } { + (J) + } Administrator of Oregon Liquor
Control Commission.
{ - (O) - } { + (K) + } Superintendent of State Police.
{ - (P) - } { + (L) + } Director of the Public Employees
Retirement System.
{ - (Q) - } { + (M) + } Director of Department of Revenue.
{ - (R) - } { + (N) + } Director of Transportation.
{ - (S) - } { + (O) + } Public Utility Commissioner.
{ - (T) - } { + (P) + } Director of Veterans' Affairs.
{ - (U) - } { + (Q) + } Executive director of Oregon
Government Ethics Commission.
{ - (V) - } { + (R) + } Director of the State Department of
Energy.
{ - (W) - } { + (S) + } Director and each assistant
director of the Oregon State Lottery.
{ - (X) - } { + (T) + } Director of the Department of
Corrections.
{ - (Y) - } { + (U) + } Director of the Oregon Department
of Aviation.
{ - (Z) - } { + (V) + } Executive director of the Oregon
Criminal Justice Commission.
{ - (AA) - } { + (W) + }Director of the Oregon Business
Development Department.
{ - (BB) - } { + (X) + } Director of the Office of
Emergency Management.
{ - (CC) - } { + (Y) + } Director of the Employment
Department.
{ - (DD) - } { + (Z) + } Chief of staff for the Governor.
{ - (EE) - } { + (AA) + } Administrator of the Office for
Oregon Health Policy and Research.
{ - (FF) - } { + (BB) + } Director of the Housing and
Community Services Department.
{ - (GG) - } { + (CC) + } State Court Administrator.
{ - (HH) Director of the Department of Land Conservation and
Development. - }
{ - (II) Board chairperson of the Land Use Board of
Appeals. - }
{ - (JJ) - } { + (DD) + } State Marine Director.
{ - (KK) - } { + (EE) + } Executive director of the Oregon
Racing Commission.
{ - (LL) State Parks and Recreation Director. - }
{ - (MM) - } { + (FF) + } Public defense services executive
director.
{ - (NN) - } { + (GG) + } Chairperson of the Public
Employees' Benefit Board.
{ - (OO) - } { + (HH) + } Director of the Department of
Public Safety Standards and Training.
{ - (PP) - } { + (II) + } Chairperson of the Oregon Student
Assistance Commission.
{ - (QQ) Executive director of the Oregon Watershed
Enhancement Board. - }
{ - (RR) - } { + (JJ) + } Director of the Oregon Youth
Authority.
{ - (SS) - } { + (KK) + } Director of the Oregon Health
Authority.
(h) Any assistant in the Governor's office other than personal
secretaries and clerical personnel.
(i) Every elected city or county official.
(j) Every member of a city or county planning, zoning or
development commission.
(k) The chief executive officer of a city or county who
performs the duties of manager or principal administrator of the
city or county.
(L) Members of local government boundary commissions formed
under ORS 199.410 to 199.519.
(m) Every member of a governing body of a metropolitan service
district and the executive officer thereof.
(n) Each member of the board of directors of the State Accident
Insurance Fund Corporation.
(o) The chief administrative officer and the financial officer
of each common and union high school district, education service
district and community college district.
(p) Every member of the following state boards and commissions:
(A) { - Board of Geologic and Mineral Industries - }
{ + Oregon Natural Resources Commission + }.
(B) Oregon Business Development Commission.
(C) State Board of Education.
(D) Environmental Quality Commission.
{ - (E) Fish and Wildlife Commission of the State of
Oregon. - }
{ - (F) State Board of Forestry. - }
{ - (G) - } { + (E) + } Oregon Government Ethics
Commission.
{ - (H) - } { + (F) + } Oregon Health Policy Board.
{ - (I) - } { + (G) + } State Board of Higher Education.
{ - (J) - } { + (H) + } Oregon Investment Council.
{ - (K) Land Conservation and Development Commission. - }
{ - (L) - } { + (I) + } Oregon Liquor Control Commission.
{ - (M) - } { + (J) + } Oregon Short Term Fund Board.
{ - (N) - } { + (K) + } State Marine Board.
{ - (O) - } { + (L) + } Mass transit district boards.
{ - (P) - } { + (M) + } Energy Facility Siting Council.
{ - (Q) - } { + (N) + } Board of Commissioners of the Port
of Portland.
{ - (R) - } { + (O) + } Employment Relations Board.
{ - (S) - } { + (P) + } Public Employees Retirement Board.
{ - (T) - } { + (Q) + } Oregon Racing Commission.
{ - (U) - } { + (R) + } Oregon Transportation Commission.
{ - (V) - } { + (S) + } Wage and Hour Commission.
{ - (W) Water Resources Commission. - }
{ - (X) - } { + (T) + } Workers' Compensation Board.
{ - (Y) - } { + (U) + } Oregon Facilities Authority.
{ - (Z) - } { + (V) + } Oregon State Lottery Commission.
{ - (AA) - } { + (W) + } Pacific Northwest Electric Power
and Conservation Planning Council.
{ - (BB) - } { + (X) + } Columbia River Gorge Commission.
{ - (CC) - } { + (Y) + } Oregon Health and Science
University Board of Directors.
{ - (DD) - } { + (Z) + } Capitol Planning Commission.
(q) The following officers of the State Treasurer:
(A) Chief Deputy State Treasurer.
(B) Chief of staff for the office of the State Treasurer.
(C) Director of the Investment Division.
(r) Every member of the board of commissioners of a port
governed by ORS 777.005 to 777.725 or 777.915 to 777.953.
(s) Every member of the board of directors of an authority
created under ORS 441.525 to 441.595.
(2) By April 15 next after the date an appointment takes
effect, every appointed public official on a board or commission
listed in subsection (1) of this section shall file with the
Oregon Government Ethics Commission a statement of economic
interest as required under ORS 244.060, 244.070 and 244.090.
(3) By April 15 next after the filing deadline for the primary
election, each candidate described in subsection (1) of this
section shall file with the commission a statement of economic
interest as required under ORS 244.060, 244.070 and 244.090.
(4) Within 30 days after the filing deadline for the general
election, each candidate described in subsection (1) of this
section who was not a candidate in the preceding primary
election, or who was nominated for public office described in
subsection (1) of this section at the preceding primary election
by write-in votes, shall file with the commission a statement of
economic interest as required under ORS 244.060, 244.070 and
244.090.
(5) Subsections (1) to (4) of this section apply only to
persons who are incumbent, elected or appointed public officials
as of April 15 and to persons who are candidates on April 15.
Subsections (1) to (4) of this section also apply to persons who
do not become candidates until 30 days after the filing deadline
for the statewide general election.
(6) If a statement required to be filed under this section has
not been received by the commission within five days after the
date the statement is due, the commission shall notify the public
official or candidate and give the public official or candidate
not less than 15 days to comply with the requirements of this
section. If the public official or candidate fails to comply by
the date set by the commission, the commission may impose a civil
penalty as provided in ORS 244.350.
SECTION 2117. ORS 270.100 is amended to read:
270.100. (1)(a) Before offering for sale any real property or
equitable interest therein owned by the state, the state agency
acting for the state in such transaction shall report its intent
of sale or transfer to the Oregon Department of Administrative
Services. The department, or the agency specifically designated
by the department, shall notify other state agencies authorized
to own real property of the intended sale or transfer to
determine whether acquisition of the real property or interest
therein would be advantageous to another state agency.
(b) The department shall give political subdivisions, as
defined in ORS 271.005, the first opportunity after other state
agencies to acquire, purchase, exchange or lease real property to
be sold or disposed of by the State of Oregon. The state agency
responsible for selling or transferring the property may require
at the time of the sale or transfer that any state real property
sold or transferred to a political subdivision, as defined in ORS
271.005, shall be for use for a public purpose or benefit, and
not be for resale to a private purchaser.
(c) If property is not disposed of under paragraph (a) or (b)
of this subsection, in accordance with rules adopted by the
department, the state agency desiring to sell or transfer the
property shall cause it to be appraised by one or more competent
and experienced appraisers. Except as provided in ORS 273.825, if
such property has an appraised value exceeding $5,000 it shall
not be sold to any private person except after notice calling for
such proposals as set forth in ORS 270.130.
(d) The department shall adopt rules to carry out the
provisions of this section.
(2) Before acquisition of any real property or interest therein
by any state agency, except for highway right of way acquired by
the Department of Transportation and park properties acquired by
the { - State Parks and Recreation Department - } { + Oregon
Department of Natural Resources + } and property within the
approved projected campus boundaries for institutions of the
Oregon University System, the state agency shall report its
intent of acquisition to the Oregon Department of Administrative
Services. The department shall notify other state agencies
owning land of the intended acquisition to determine whether
another state agency desires to sell or transfer property which
would meet the needs of the purchasing agency. In accordance with
rules adopted by the Oregon Department of Administrative
Services, if no other state agency desires to sell or transfer
property which would meet the needs of the agency, the agency may
acquire the real property or interest therein, consistent with
applicable provisions of law.
(3) Before any terminal disposition of real property or an
interest in real property, the state agency acting for the state
in the transaction must secure approval of the transaction from
the Oregon Department of Administrative Services.
(4) Subsection (3) of this section does not apply to terminal
disposition of the following real property:
(a) Property controlled by the { - State Department of Fish
and Wildlife - } { + Oregon Department of Natural
Resources + };
{ - (b) State forestlands controlled by the State Forestry
Department; - }
{ - (c) - } { + (b) + } Property controlled by the
Department of Transportation;
{ - (d) Property controlled by the Department of State
Lands; - }
{ - (e) - } { + (c) + } Property controlled by the Oregon
University System; { + and + }
{ - (f) - } { + (d) + } Property controlled by the
legislative or judicial branches of state government { + . + }
{ - ; and - }
{ - (g) Property controlled by the State Parks and Recreation
Department. - }
(5) Notwithstanding the provisions of subsection (4) of this
section, prior approval by the Oregon Department of
Administrative Services is required for the terminal disposition
of public land for less than the fair market value of that land.
(6) The provisions of ORS 184.634, 270.005 to 270.015, 270.100
to 270.190, 273.416, 273.426 to 273.436, 273.551 and 308A.709 (1)
to (4) do not apply to a home or farm acquired, sold, or both, by
the Department of Veterans' Affairs under ORS 88.720, 273.388,
406.050, 407.135, 407.145, 407.375 and 407.377.
SECTION 2118. ORS 279A.025 is amended to read:
279A.025. (1) Except as provided in subsections (2) to (4) of
this section, the Public Contracting Code applies to all public
contracting.
(2) The Public Contracting Code does not apply to:
(a) Contracts between a contracting agency and:
(A) Another contracting agency;
(B) The Oregon Health and Science University;
(C) The Oregon State Bar;
(D) A governmental body of another state;
(E) The federal government;
(F) An American Indian tribe or an agency of an American Indian
tribe;
(G) A nation, or a governmental body in a nation, other than
the United States; or
(H) An intergovernmental entity formed between or among:
(i) Governmental bodies of this or another state;
(ii) The federal government;
(iii) An American Indian tribe or an agency of an American
Indian tribe;
(iv) A nation other than the United States; or
(v) A governmental body in a nation other than the United
States;
(b) Agreements authorized by ORS chapter 190 or by a statute,
charter provision, ordinance or other authority for establishing
agreements between or among governmental bodies or agencies or
tribal governing bodies or agencies;
(c) Insurance and service contracts as provided for under ORS
414.115, 414.125, 414.135 and 414.145 for purposes of source
selection;
(d) Grants;
(e) Contracts for professional or expert witnesses or
consultants to provide services or testimony relating to existing
or potential litigation or legal matters in which a public body
is or may become interested;
(f) Acquisitions or disposals of real property or interest in
real property;
(g) Sole-source expenditures when rates are set by law or
ordinance for purposes of source selection;
(h) Contracts for the procurement or distribution of textbooks;
(i) Procurements by a contracting agency from an Oregon
Corrections Enterprises program;
(j) The procurement, transportation or distribution of
distilled liquor, as defined in ORS 471.001, or the appointment
of agents under ORS 471.750 by the Oregon Liquor Control
Commission;
(k) Contracts entered into under ORS chapter 180 between the
Attorney General and private counsel or special legal assistants;
(L) Contracts for the sale of timber from lands owned or
managed by the { - State Board of Forestry and the State
Forestry Department - } { + Director of the Oregon Department
of Natural Resources or the Oregon Natural Resources
Commission + };
(m) Contracts for forest protection or forest related
activities, as described in ORS 477.406, by the { - State
Forester or the State Board of Forestry - } { + Director of the
Oregon Department of Natural Resources or the Oregon Natural
Resources Commission + };
(n) Sponsorship agreements entered into by the { - State
Parks and Recreation Director - } { + Director of the Oregon
Department of Natural Resources + } in accordance with ORS
565.080 (4);
(o) Contracts entered into by the Housing and Community
Services Department in exercising the department's duties
prescribed in ORS chapters 456 and 458, except that the
department's public contracting for goods and services is subject
to ORS chapter 279B;
(p) Contracts entered into by the State Treasurer in exercising
the powers of that office prescribed in ORS chapters 178, 286A,
287A, 289, 293, 294 and 295, including but not limited to
investment contracts and agreements, banking services, clearing
house services and collateralization agreements, bond documents,
certificates of participation and other debt repayment
agreements, and any associated contracts, agreements and
documents, regardless of whether the obligations that the
contracts, agreements or documents establish are general, special
or limited, except that the State Treasurer's public contracting
for goods and services is subject to ORS chapter 279B;
(q) Contracts, agreements or other documents entered into,
issued or established in connection with:
(A) The issuance of obligations, as defined in ORS 286A.100 and
287A.310, of a public body;
(B) The making of program loans and similar extensions or
advances of funds, aid or assistance by a public body to a public
or private body for the purpose of carrying out, promoting or
sustaining activities or programs authorized by law; or
(C) The investment of funds by a public body as authorized by
law, and other financial transactions of a public body that by
their character cannot practically be established under the
competitive contractor selection procedures of ORS 279B.050 to
279B.085;
(r) Contracts for employee benefit plans as provided in ORS
243.105 (1), 243.125 (4), 243.221, 243.275, 243.291, 243.303 and
243.565;
(s) Contracts for employee benefit plans as provided in ORS
243.860 to 243.886; or
(t) Any other public contracting of a public body specifically
exempted from the code by another provision of law.
(3) The Public Contracting Code does not apply to the
contracting activities of:
(a) The Oregon State Lottery Commission;
(b) The Oregon University System and member institutions,
except as provided in ORS 351.086;
(c) The legislative department;
(d) The judicial department;
(e) Semi-independent state agencies listed in ORS 182.454,
except as provided in ORS 279.835 to 279.855 and 279A.250 to
279A.290;
(f) Oregon Corrections Enterprises;
(g) The Oregon Film and Video Office, except as provided in ORS
279A.100 and 279A.250 to 279A.290;
(h) The Travel Information Council, except as provided in ORS
279A.250 to 279A.290;
(i) The Oregon 529 College Savings Network and the Oregon 529
College Savings Board;
(j) The Oregon Innovation Council;
(k) The Oregon Utility Notification Center; or
(L) Any other public body specifically exempted from the code
by another provision of law.
(4) ORS 279A.200 to 279A.225 and 279B.050 to 279B.085 do not
apply to contracts made with qualified nonprofit agencies
providing employment opportunities for individuals with
disabilities under ORS 279.835 to 279.855.
SECTION 2119. ORS 279A.050 is amended to read:
279A.050. (1)(a) Except as otherwise provided in the Public
Contracting Code, a contracting agency shall exercise all
procurement authority in accordance with the provisions of the
Public Contracting Code.
(b) When a contracting agency has authority under this section
to carry out functions described in this section, or has
authority to make procurements under a provision of law other
than the Public Contracting Code, the contracting agency is not
required to exercise that authority in accordance with the
provisions of the code if, under ORS 279A.025, the code does not
apply to the contract or contracting authority.
(2) Except as otherwise provided in the Public Contracting
Code, for state agencies the Director of the Oregon Department of
Administrative Services has all the authority to carry out the
provisions of the Public Contracting Code.
(3) Except as otherwise provided in the Public Contracting
Code, the Director of Transportation has all the authority to:
(a) Procure or supervise the procurement of all services and
personal services to construct, acquire, plan, design, maintain
and operate passenger terminal facilities and motor vehicle
parking facilities in connection with any public transportation
system in accordance with ORS 184.689 (5);
(b) Procure or supervise the procurement of all goods,
services, public improvements and personal services relating to
the operation, maintenance or construction of highways, bridges
and other transportation facilities that are subject to the
authority of the Department of Transportation; and
(c) Establish standards for, prescribe forms for and conduct
the prequalification of prospective bidders on public improvement
contracts related to the operation, maintenance or construction
of highways, bridges and other transportation facilities that are
subject to the authority of the Department of Transportation.
(4) Except as otherwise provided in the Public Contracting
Code, the Secretary of State has all the authority to procure or
supervise the procurement of goods, services and personal
services related to programs under the authority of the Secretary
of State.
(5) Except as otherwise provided in the Public Contracting
Code, the State Treasurer has all the authority to procure or
supervise the procurement of goods, services and personal
services related to programs under the authority of the State
Treasurer.
(6) The state agencies listed in this subsection have all the
authority to do the following in accordance with the Public
Contracting Code:
(a) The Department of Human Services to procure or supervise
the procurement of goods, services and personal services under
ORS 179.040 for the department's institutions and the procurement
of goods, services and personal services for the construction,
demolition, exchange, maintenance, operation and equipping of
housing for the purpose of providing care to individuals with
mental retardation or other developmental disabilities, subject
to applicable provisions of ORS 427.335;
(b) The Oregon Health Authority to procure or supervise the
procurement of goods, services and personal services under ORS
179.040 for the authority's institutions and the procurement of
goods, services and personal services for the construction,
demolition, exchange, maintenance, operation and equipping of
housing for persons with chronic mental illness, subject to
applicable provisions of ORS 426.504;
(c) The { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + } to procure or
supervise the procurement of construction materials, equipment,
supplies, services and personal services for public improvements,
public works or ordinary construction described in ORS 279C.320
that is subject to the authority of the { - State Department of
Fish and Wildlife - } { + Oregon Department of Natural
Resources + };
{ - (d) The State Parks and Recreation Department to procure
or supervise the procurement of all goods, services, public
improvements and personal services relating to state parks; - }
{ - (e) - } { + (d) + } The Oregon Department of Aviation
to procure or supervise the procurement of construction
materials, equipment, supplies, services and personal services
for public improvements, public works or ordinary construction
described in ORS 279C.320 that is subject to the authority of the
Oregon Department of Aviation;
{ - (f) - } { + (e) + } The Oregon Business Development
Department to procure or supervise the procurement of all goods,
services, personal services and public improvements related to
its foreign trade offices operating outside the state;
{ - (g) - } { + (f) + } The Housing and Community Services
Department to procure or supervise the procurement of goods,
services and personal services as provided in ORS 279A.025
(2)(o);
{ - (h) - } { + (g) + } The Department of Corrections to
procure or supervise the procurement of construction materials,
equipment, supplies, services and personal services for public
improvements, public works or ordinary construction described in
ORS 279C.320 that is subject to the authority of the Department
of Corrections;
{ - (i) - } { + (h) + } The Department of Corrections,
subject to any applicable provisions of ORS 279A.120, 279A.125,
279A.145 and 283.110 to 283.395, to procure or supervise the
procurement of goods, services and personal services under ORS
179.040 for its institutions;
{ - (j) - } { + (i) + } The Department of Veterans' Affairs
to procure or supervise the procurement of real estate broker and
principal real estate broker services related to programs under
the department's authority;
{ - (k) - } { + (j) + } The Oregon Military Department to
procure or supervise the procurement of construction materials,
equipment, supplies, services and personal services for public
improvements, public works or ordinary construction described in
ORS 279C.320 that is subject to the authority of the Oregon
Military Department;
{ - (L) - } { + (k) + } The Department of Education,
subject to any applicable provisions of ORS 329.075, 329.085 and
329.485 and the federal No Child Left Behind Act of 2001 (P.L.
107-110, 115 Stat. 1425), to procure or supervise the
procurement of goods, services, personal services and information
technology relating to student assessment; and
{ - (m) - } { + (L) + } Any state agency to conduct a
procurement when the agency is specifically authorized by any
provision of law other than the Public Contracting Code to enter
into a contract.
(7) Notwithstanding this section and ORS 279A.140 (1), the
Director of the Oregon Department of Administrative Services has
exclusive authority, unless the director delegates this
authority, to procure or supervise the procurement of all price
agreements on behalf of the state agencies identified in
subsection (6)(a) to
{ - (k) - } { + (j) + } of this section under which more than
one state agency may order goods, services or personal services
and all state agency information technology contracts. This
subsection does not apply to contracts under which the contractor
delivers to the state agency information technology products or
services incidental to the performance of personal services
contracts described in ORS chapter 279C or construction contracts
described in ORS chapter 279C. A state agency identified in
subsection (3) or (6)(a) to { - (k) - } { + (j) + } of this
section may not establish a price agreement or enter into a
contract for goods, services or personal services without the
approval of the director if the director has established a price
agreement for the goods, services or personal services.
SECTION 2120. ORS 284.555 is amended to read:
284.555. (1) The Governor shall establish the Economic
Revitalization Team in the office of the Governor for the purpose
of coordinating and streamlining state policies, programs and
procedures and providing coordinated state agency assistance to
local governments.
(2) The team shall establish a regulatory efficiency group to
assist the team consisting of the directors of the following
state agencies:
(a) The Department of Environmental Quality;
(b) The Oregon Business Development Department;
(c) The Department of Transportation;
(d) The { - Department of State Lands - } { + Oregon
Department of Natural Resources + };
{ - (e) The Department of Land Conservation and
Development; - }
{ - (f) - } { + (e) + } The State Department of
Agriculture;
{ - (g) - } { + (f) + } The Housing and Community Services
Department; and
{ - (h) - } { + (g) + } Other appropriate agencies as
determined by the Governor.
(3) Subject to the direction of the Governor, the team shall:
(a) Develop mechanisms to increase coordination among agencies
on common activities;
(b) Coordinate the activities of state agencies on specific
state and local projects;
(c) Coordinate the planning and permitting activities of state
agencies for the sites identified for industrial or traded sector
development under section 12, chapter 800, Oregon Laws 2003;
(d) Coordinate activities of the regulatory efficiency group
agencies with local governments;
(e) Coordinate the grant and loan activities of state agencies
to implement section 12, chapter 800, Oregon Laws 2003;
(f) Participate in the rulemaking activities of regulatory
efficiency group agencies to coordinate economic development
activities;
(g) Prepare a report for the Seventy-second Legislative
Assembly on the sites identified for industrial or traded sector
development under section 12, chapter 800, Oregon Laws 2003,
including a description of each site and the economic benefit
expected from site development. If fewer than 25 sites are
identified, the report must include an analysis of why the target
set forth in section 12, chapter 800, Oregon Laws 2003, was not
achieved;
(h) Prepare a report for the Seventy-second Legislative
Assembly with specific recommendations regarding the future of
the team; and
(i) Undertake other activities as directed by the Governor.
(4) The team shall establish an advisory committee of
individuals familiar with agency permit procedures to advise the
Governor and the regulatory efficiency group agencies on permit
issues related to economic development.
(5) The team shall submit a report detailing its activities to
the Legislative Assembly in the manner described in ORS 192.245
not later than January 31 of each odd-numbered year. The report
must include:
(a) Case studies that demonstrate the types of problems
encountered in coordinating agency functions;
(b) Case studies that demonstrate statutory impediments to
efficient economic development; and
(c) Recommendations for legislative measures to improve agency
operations and statewide economic development.
(6) The team or a state agency working with the team to
implement ORS 284.545 to 284.565 and sections 12 and 15 to 20,
chapter 800, Oregon Laws 2003, or a state agency implementing ORS
284.570 to 284.585 may:
(a) Accept and expend funds received from gifts, grants or
other sources as necessary to perform activities authorized under
ORS 284.545 to 284.565 and sections 12 and 15 to 20, chapter 800,
Oregon Laws 2003, or ORS 284.570 to 284.585.
(b) Enter into contracts and other agreements as necessary to
perform activities authorized under ORS 284.545 to 284.565 and
sections 12 and 15 to 20, chapter 800, Oregon Laws 2003, or ORS
284.570 to 284.585.
SECTION 2121. ORS 291.224 is amended to read:
291.224. (1) A capital construction program containing
estimated capital construction needs, irrespective of how
financed, must be included with the budget report required by ORS
291.216. The capital construction program must contain the
estimated physical construction requirements for each biennium of
a period to be determined by the Governor, which period may not
be less than six years. The Oregon Department of Administrative
Services shall assist the Governor in the preparation of the
capital construction program.
(2) In accordance with regulations prescribed by the
department, state agencies shall submit to the department their
anticipated capital construction requirements for the period
specified by the Governor. The department shall prescribe the
basic assumptions relating to population changes, economic trends
and other factors which might generally affect capital
construction requirements and these basic assumptions must be
used by the state agencies in preparing their anticipated capital
construction requirements. Each state agency is responsible for
the basic assumptions that affect only its own program. The
department shall prepare estimated capital construction
requirements for necessary capital construction not covered by
the capital construction requirements submitted by the state
agencies under this section.
(3) In accordance with regulations prescribed by the
department, each state agency shall separately submit its
estimated office space requirements for the period specified by
the Governor, and the department shall consolidate those needs
and make an estimate for all state office buildings to be
included in the capital construction program.
(4) The Governor shall consolidate the estimates, review the
estimates and make revisions the Governor finds warranted.
(5) The budget report must include the proposed expenditures
for the capital construction program for the ensuing biennium and
the proposed expenditures for preliminary planning of the
construction projects included in the capital construction
program for the biennium following the ensuing biennium. The
budget report also must include dollar estimates of the cost of
the capital construction projects included in the capital
construction program for the succeeding years of the period
determined by the Governor under subsection (1) of this section.
(6) Each state agency, including the department, required under
subsection (2) of this section to submit or prepare anticipated
or estimated capital construction requirements, shall submit a
copy of the requirements that relate to construction or
improvements within the areas described in ORS 276.054 to the
Capitol Planning Commission at a time specified by the
commission, but not later than August 1 of each even-numbered
year. The commission shall review the capital construction
requirements and, not later than November 1 of each even-numbered
year, make recommendations to the department with respect to the
requirements.
(7) As used in this section, 'capital construction program '
does not include:
(a) The acquisition, repair, improvement, enlargement,
construction or maintenance of highways and highway bridges by
the Department of Transportation;
(b) Park improvements by the { - State Parks and Recreation
Department - } { + Oregon Department of Natural Resources + };
or
(c) Road infrastructure work performed under timber sale
contracts entered into by the { - State Forester - }
{ + Director of the Oregon Department of Natural Resources + }.
SECTION 2122. ORS 291.445 is amended to read:
291.445. (1) Before July 1 of each fiscal year, the Oregon
Department of Administrative Services shall request from the
appropriate state agency a certificate as prescribed in this
section. The request shall be made by letter to the agency.
(2) Each state agency authorized to issue general obligation
bonds that are ordinarily to be repaid from other than General
Fund appropriations shall, on or before August 15 of each fiscal
year:
(a) Certify to the Director of the Oregon Department of
Administrative Services that the amounts available or that will
become available during the current year to the bond program debt
service fund to pay bond principal and interest that has accrued
or will accrue during the current year are sufficient and will be
sufficient to pay bond program principal and interest scheduled
for payment during the current year; or
(b) Certify to the Director of the Oregon Department of
Administrative Services that the amounts available or that will
become available during the current year to the bond program debt
service fund will not be sufficient to pay bond program principal
and interest scheduled for payment during the current year. A
certificate issued under this paragraph shall specify the amount
of the anticipated current year deficit. The Director of the
Oregon Department of Administrative Services shall review and
confirm the correctness of each certification made under this
paragraph.
(3) On or before August 15 of each fiscal year, the
administrative division of the Oregon Department of
Administrative Services that has primary responsibility for
accounting for each general obligation bond program in which the
bond principal and interest is ordinarily to be repaid from
General Fund appropriations shall:
(a) Certify to the Director of the Oregon Department of
Administrative Services that the amounts available or that will
become available during the current year from General Fund
appropriations to defray program bond principal and interest that
has accrued or will accrue during the current year are sufficient
and will be sufficient to pay program bond principal and interest
scheduled for payment during the current year; or
(b) Certify to the Director of the Oregon Department of
Administrative Services that the amounts available or that will
become available during the current year from General Fund
appropriations will not be sufficient to pay program bond
principal and interest scheduled for payment during the current
year. A certificate issued under this paragraph shall specify the
amount of the anticipated current year deficit.
(4)(a) If a deficit in funds available to pay principal and
interest in any general obligation bond program is certified and
confirmed under subsection (2) or certified under subsection (3)
of this section, the amount of the deficit, together with any
deficit that is certified for any other general obligation bond
program shall upon certification constitute a state tax levy on
property that shall be apportioned among and charged to the
several counties in that proportion which the total assessed
value of all the taxable property in each county bears to the
total assessed value of all the taxable property of the state as
equalized.
(b) If any agency fails to make the certification under
subsection (2) or (3) of this section with respect to any general
obligation bond fund program, the Oregon Department of
Administrative Services shall determine the amount of revenue and
other funds that are available and the amount of taxes, if any,
that should be levied in addition to the revenues and funds, to
pay bond principal and interest under the program for the fiscal
year in question. The additional amount so determined shall
thereupon constitute a state tax levy on property that shall be
apportioned, certified, collected and distributed as if
determined and certified as a deficit by the agency. The Oregon
Department of Administrative Services shall charge the agency for
cost recovery for time spent on that agency's behalf.
(5) Immediately after the department has determined the amount
of a state tax levy on property in accordance with subsection (4)
of this section, a certificate of levy, signed by the director of
the department, shall be filed in the office of the department.
If no state levy is required for the fiscal or tax year, a
certificate so stating and signed by the director shall be filed
in the office of the department.
(6) If, for any reason, after the close of any regular biennial
session of the Legislative Assembly, it becomes necessary to
reduce General Fund appropriations, General Fund appropriations
for a debt service fund of a general obligation bond program
described under subsection (3) of this section may not be
reduced.
(7) For purposes of this section:
(a) State agencies that are authorized to issue general
obligation bonds ordinarily to be repaid from other than General
Fund appropriations include but are not limited to:
(A) The Director of Veterans' Affairs, as authorized by Article
XI-A of the Oregon Constitution and ORS chapter 407 (veterans
loans).
(B) The State Board of Higher Education, as authorized by
Article XI-F(1) of the Oregon Constitution and ORS 351.350
(building projects).
(C) The Department of Environmental Quality, as authorized by
Article XI-H of the Oregon Constitution and ORS 468.195 to
468.260 (pollution control).
(D) The { - Water Resources Commission and the Water
Resources Director - } { + Director of the Oregon Department of
Natural Resources and the Oregon Natural Resources
Commission + }, as authorized by Article XI-I(1) of the Oregon
Constitution and ORS 541.700 to 541.855 (water development).
(E) The Housing and Community Services Department, as
authorized by Article XI-I(2) of the Oregon Constitution and ORS
456.515 to 456.725 and 458.505 to 458.515 (housing).
(F) The Director of the State Department of Energy, as
authorized by Article XI-J of the Oregon Constitution and ORS
470.220 to 470.290 (small scale energy projects).
(G) Other agencies as required by the Oregon Department of
Administrative Services by rule adopted using the criterion of
this subsection.
(b) Each agency authorized to issue general obligation bonds
that are ordinarily to be repaid from other than General Fund
appropriations shall determine the amount of revenues or other
funds that are available and the amount of taxes, if any, that
should be levied for the ensuing year in the manner required
under rules adopted by the Oregon Department of Administrative
Services and make the certification required under subsection (2)
of this section.
(8)(a) State agencies that are authorized to issue general
obligation bonds that are ordinarily to be repaid from General
Fund appropriations include but are not limited to:
(A) The { - State Board of Forestry and the State
Forester - } { + Director of the Oregon Department of Natural
Resources and the Oregon Natural Resources Commission + }, as
authorized by Article XI-E of the Oregon Constitution and ORS
530.210 to 530.280 (state reforestation).
(B) The State Board of Higher Education, as authorized by
Article XI-G of the Oregon Constitution and ORS 351.345 (higher
education and community colleges).
(C) Other agencies as required by the Oregon Department of
Administrative Services by rule adopted using the criterion of
this subsection.
(b) Each agency authorized to issue general obligation bonds
ordinarily to be repaid from General Fund appropriations shall
furnish any data required by the Oregon Department of
Administrative Services to determine the amount of revenues or
other funds that are available and the amount of taxes, if any,
that should be levied for the ensuing year and the administrative
division of the Oregon Department of Administrative Services that
has primary responsibility for accounting shall make the
determination for purposes of the making of the certification
required under subsection (3) of this section.
SECTION 2123. ORS 401.054 is amended to read:
401.054. (1) The following state agencies shall designate a
person within each agency to act as a liaison with the Office of
Emergency Management:
(a) The Department of Transportation;
(b) The State Department of Agriculture;
(c) The Department of Environmental Quality;
(d) The Department of Human Services;
(e) The State Department of Energy;
(f) The Oregon Department of Administrative Services;
(g) The Department of State Police;
(h) The { - State Department of Geology and Mineral
Industries - } { + Oregon Department of Natural Resources + };
(i) The Oregon Health Authority; and
(j) The Oregon Military Department.
(2) Each person designated as a liaison under subsection (1) of
this section shall assist in the coordination of the functions of
the person's agency that relate to emergency preparedness and
response with similar functions of the Office of Emergency
Management.
SECTION 2124. ORS 401.904 is amended to read:
401.904. The Office of Emergency Management, in consultation
with the { - State Department of Geology and Mineral
Industries - } { + Oregon Department of Natural Resources + },
shall adopt rules governing the conduct of earthquake emergency
drills required by ORS 401.900 and 401.902. In addition to the
office submitting the rules for publication pursuant to ORS
183.360, the office and the department shall each post the rules
on an electronic bulletin board, home page or similar site.
SECTION 2125. ORS 401.910 is amended to read:
401.910. (1) The Director of the Office of Emergency
Management, pursuant to the authority to administer grant
programs for seismic rehabilitation provided in ORS 401.092,
shall develop a grant program for the disbursement of funds for
the seismic rehabilitation of critical public buildings,
including hospital buildings with acute inpatient care
facilities, fire stations, police stations, sheriffs' offices,
other facilities used by state, county, district or municipal law
enforcement agencies and buildings with a capacity of 250 or more
persons that are routinely used for student activities by
kindergarten through grade 12 public schools, community colleges,
education service districts and institutions of higher education.
The funds for the seismic rehabilitation of critical public
buildings under the grant program are to be provided from the
issuance of bonds pursuant to the authority provided in Articles
XI-M and XI-N of the Oregon Constitution.
(2) The grant program shall include the appointment of a grant
committee. The grant committee may be composed of any number of
persons with qualifications that the director determines
necessary. However, the director shall include persons with
experience in administering state grant programs and
representatives of entities with responsibility over critical
public buildings. The director shall also include as permanent
members representatives of:
(a) The Department of Human Services;
(b) The { - State Department of Geology and Mineral
Industries - } { + Oregon Department of Natural Resources + };
(c) The Seismic Safety Policy Advisory Commission;
(d) The Oregon Department of Administrative Services;
(e) The Department of Education;
(f) The Oregon Health Authority;
(g) The Oregon Fire Chiefs' Association;
(h) The Oregon Association Chiefs of Police; and
(i) The Oregon Association of Hospitals and Health Systems.
(3) The director shall determine the form and method of
applying for grants from the grant program, the eligibility
requirements for grant applicants, and general terms and
conditions of the grants. The director shall also provide that
the grant committee review grant applications and make a
determination of funding based on a scoring system that is
directly related to the statewide needs assessment performed by
the { - State Department of Geology and Mineral Industries - }
{ + Oregon Department of Natural Resources + }. Additionally,
the grant process may:
(a) Require that the grant applicant provide matching funds for
completion of any seismic rehabilitation project.
(b) Provide authority to the grant committee to waive
requirements of the grant program based on special circumstances
such as proximity to fault hazards, community value of the
structure, emergency functions provided by the structure and
storage of hazardous materials.
(c) Allow an applicant to appeal any determination of grant
funding to the director for reevaluation.
(d) Provide that applicants release the state, the director and
the grant committee from any claims of liability for providing
funding for seismic rehabilitation.
(e) Provide separate rules for funding rehabilitation of
structural and nonstructural building elements.
(4) Subject to the grant rules established by the director and
subject to reevaluation by the director, the grant committee has
the responsibility to review and make determinations on grant
applications under the grant program established pursuant to this
section.
SECTION 2126. ORS 401.915 is amended to read:
401.915. (1) There is established a Seismic Safety Policy
Advisory Commission consisting of the following members:
(a) The chief officer or the chief officer's designee of the
following:
(A) Department of Consumer and Business Services;
(B) { - State Department of Geology and Mineral
Industries - } { + Oregon Department of Natural Resources + };
{ - (C) Department of Land Conservation and Development; - }
{ - (D) - } { + (C) + } Department of Transportation; and
{ - (E) - } { + (D) + } Office of Emergency Management; and
(b) Thirteen members appointed by the Governor as follows:
(A) One representative of local government;
(B) Six members representing the public interest, including:
(i) One representative of a school district, community college
or university;
(ii) Two members of the Legislative Assembly; and
(iii) Three members of the general public; and
(C) Six members representing affected industries or
stakeholders.
(2) The term of office of each member, except a member of the
Legislative Assembly, appointed under subsection (1)(b) of this
section is four years, but a member serves at the pleasure of the
Governor. The term of office of a member of the Legislative
Assembly expires at the end of the term for which the member is
elected. Before the expiration of the term of a member, the
Governor shall appoint a successor whose term begins on July 1
next following. A member is eligible for reappointment. If there
is a vacancy for any cause, the Governor shall make an
appointment to become immediately effective for the unexpired
term.
SECTION 2127. ORS 401.922 is amended to read:
401.922. The Office of Emergency Management shall provide
technical, clerical and other necessary support services to the
Seismic Safety Policy Advisory Commission. The Department of
Consumer and Business Services, the { - State Department of
Geology and Mineral Industries, the Department of Land
Conservation and Development, the Department of Transportation,
the Oregon Health Authority, the Water Resources Department - }
{ + Oregon Department of Natural Resources, the Department of
Transportation, the Oregon Health Authority + } and the Oregon
University System shall provide assistance, as required, to the
commission to enable it to meet its objectives.
SECTION 2128. ORS 401.950 is amended to read:
401.950. (1) As used in this section:
(a) 'Transient lodging facility' means a hotel, motel, inn,
condominium, any other dwelling unit or a public or private park
that is made available for transient occupancy or vacation
occupancy as those terms are defined in ORS 90.100.
(b) 'Tsunami inundation zone' means an area of expected tsunami
inundation, based on scientific evidence that may include
geologic field data and tsunami modeling, determined by the
{ - governing board of the State Department of Geology and
Mineral Industries - } { + Director of the Oregon Department of
Natural Resources + }, by rule, as required by ORS 455.446 (1)(b)
and (c).
(2) The Office of Emergency Management, in consultation and
cooperation with the { - State Department of Geology and
Mineral Industries - } { + Oregon Department of Natural
Resources + }, shall:
(a) Develop and adopt by rule tsunami warning information and
evacuation plans for distribution to transient lodging facilities
located in a tsunami inundation zone; and
(b) Facilitate and encourage broad distribution of the tsunami
warning information and evacuation plans to transient lodging
facilities and other locations within tsunami inundation zones
frequented by visitors to the area.
(3) The office is not required to carry out the duties assigned
under subsection (2) of this section if sufficient moneys are not
available under ORS 401.955.
SECTION 2129. ORS 401.952 is amended to read:
401.952. (1) The Office of Emergency Management, in
consultation with the { - State Department of Geology and
Mineral Industries - } { + Oregon Department of Natural
Resources + }, shall establish by rule a uniform tsunami warning
signal, including rules specifying the type, duration and volume
of the warning signal and the location of warning signal delivery
devices, for use on the Oregon coast.
(2) The office is not required to carry out the duties assigned
under subsection (1) of this section if sufficient moneys are not
available under ORS 401.955.
SECTION 2130. ORS 401.955 is amended to read:
401.955. The Office of Emergency Management or the { - State
Department of Geology and Mineral Industries - } { + Oregon
Department of Natural Resources + } may seek and accept gifts,
grants and donations from any source to finance all or part of
the duties assigned under ORS 401.950 and 401.952.
SECTION 2131. ORS 406.090 is amended to read:
406.090. The administration of ORS 273.035 to 273.051 { - ,
273.071, 273.161 to 273.175 - } and 408.710 to 408.750 shall in
no way be affected by ORS 406.010 to 406.070, 406.210, 406.220
and 406.340, and such laws are excepted from the operation
thereof. The Department of Veterans' Affairs shall cooperate
with the person or agency responsible for the administration of
such laws, and shall render such reasonable assistance in that
regard as may be requested by any such person or agency.
SECTION 2132. ORS 418.688 is amended to read:
418.688. The Legislative Assembly recognizes that it is in the
public interest to provide employment for young people within the
existing administrative and financial capabilities of the
Department of Transportation { + and the Oregon Department of
Natural Resources + } { - , the State Fish and Wildlife
Commission, the State Forestry Department, the State Parks and
Recreation Department and the Department of State Lands - } .
SECTION 2133. ORS 426.508 is amended to read:
426.508. (1) Notwithstanding ORS 421.611 to 421.630 or any
actions taken under ORS 421.611 to 421.630, the Department of
Corrections shall transfer the real property known as the F. H.
Dammasch State Hospital and all improvements to the Oregon
Department of Administrative Services to be sold for the benefit
of the Oregon Health Authority.
(2)(a) Notwithstanding ORS 270.100 to 270.190, and except as
provided in subsection (4) of this section, the Oregon Department
of Administrative Services shall sell or otherwise convey the
real property known as the F. H. Dammasch State Hospital in a
manner consistent with the provisions of this section. Conveyance
shall not include transfer to a state agency. The sale price of
the real property shall equal or exceed the fair market value of
the real property. The Oregon Department of Administrative
Services shall engage the services of a licensed real estate
broker or principal real estate broker to facilitate the sale of
the real property.
(b) The Oregon Department of Administrative Services shall
retain from the sale or other conveyance of the real property
those costs incurred by the state in selling or conveying the
real property, including costs incurred by the Department of
Corrections in transferring the real property to the Oregon
Department of Administrative Services. The remaining proceeds
from the sale or other conveyance shall be transferred to the
Community Housing Trust Account created under ORS 426.506 (3).
(3) Redevelopment of the real property formerly occupied by the
F. H. Dammasch State Hospital shall be consistent with the
Dammasch Area Transportation Efficient Land Use Plan developed by
Clackamas County, the City of Wilsonville, the Oregon Department
of Administrative Services, { - the Department of Land
Conservation and Development, - } the Department of
Transportation, the State Housing Council, the Oregon Health
Authority and the { - Department of State Lands - }
{ + Oregon Department of Natural Resources + }.
(4) The Oregon Department of Administrative Services shall
reserve from the sale of the real property under subsection (2)
of this section not more than 10 acres. The real property
reserved from sale shall be transferred to the Oregon Health
Authority for use by the authority to develop community housing
for persons with chronic mental illness. The department and the
authority shall jointly coordinate with the City of Wilsonville
to identify the real property reserved from sale under this
subsection.
SECTION 2134. ORS 459A.615 is amended to read:
459A.615. The { - State Forestry Department, the State Parks
and Recreation Department - } { + Oregon Department of Natural
Resources + }, the Department of Transportation and the Oregon
Department of Administrative Services shall initiate programs
that use compost or sewage sludge in place of, or to supplement,
soil amendments, ground cover materials, mulching materials or
other similar products for which compost can be used as an
effective substitute.
SECTION 2135. ORS 466.135 is amended to read:
466.135. Upon receipt of an application for a hazardous waste
disposal site permit, the Department of Environmental Quality
shall cause copies of the application to be sent to affected
state agencies, including the Oregon Health Authority, the Public
Utility Commission { - , the State Fish and Wildlife Commission
and the Water Resources Director - } { + and the Oregon
Department of Natural Resources + }. Each agency shall respond by
making a recommendation as to whether the permit application
should be granted. If the
{ - Oregon Health - } authority recommends against granting
the permit, the Environmental Quality Commission must refuse to
issue the permit. Recommendation from other agencies shall be
considered as evidence in determining whether to grant the
permit.
SECTION 2136. ORS 466.280 is amended to read:
466.280. Upon receipt of an application for a PCB disposal
facility permit, the Department of Environmental Quality shall
cause copies of the application to be sent to affected state
agencies, including the Oregon Health Authority, the Public
Utility Commission { - , the State Fish and Wildlife Commission
and the Water Resources Director - } { + and the Oregon
Department of Natural Resources + }. Each agency shall respond
within the period specified by the Department of Environmental
Quality by making a written recommendation as to whether the
permit application should be granted. { - Recommendation from
other agencies shall be considered - } { + The department shall
consider the recommendations + } in determining whether to grant
the permit.
SECTION 2137. ORS 468.035 is amended to read:
468.035. (1) Subject to policy direction by the Environmental
Quality Commission, the Department of Environmental Quality:
(a) Shall encourage voluntary cooperation by the people,
municipalities, counties, industries, agriculture, and other
pursuits, in restoring and preserving the quality and purity of
the air and the waters of the state in accordance with rules and
standards established by the commission.
(b) May conduct and prepare, independently or in cooperation
with others, studies, investigations, research and programs
pertaining to the quality and purity of the air or the waters of
the state and to the treatment and disposal of wastes.
(c) Shall advise, consult, and cooperate with other agencies of
the state, political subdivisions, other states or the federal
government, in respect to any proceedings and all matters
pertaining to control of air or water pollution or for the
formation and submission to the legislature of interstate
pollution control compacts or agreements.
(d) May employ personnel, including specialists and
consultants, purchase materials and supplies, and enter into
contracts necessary to carry out the purposes set forth in ORS
448.305, 454.010 to 454.040, 454.205 to 454.255, 454.505 to
454.535, 454.605 to 454.755 and ORS chapters 468, 468A and 468B.
(e) Shall conduct and supervise programs of air and water
pollution control education, including the preparation and
distribution of information regarding air and water pollution
sources and control.
(f) Shall provide advisory technical consultation and services
to units of local government and to state agencies.
(g) Shall develop and conduct demonstration programs in
cooperation with units of local government.
(h) Shall serve as the agency of the state for receipt of
moneys from the federal government or other public or private
agencies for the purposes of air and water pollution control,
studies or research and to expend moneys after appropriation
thereof for the purposes given.
(i) Shall make such determination of priority of air or water
pollution control projects as may be necessary under terms of
statutes enacted by the Congress of the United States.
(j) Shall seek enforcement of the air and water pollution laws
of the state.
(k) Shall institute or cause to be instituted in a court of
competent jurisdiction, proceedings to compel compliance with any
rule or standard adopted or any order or permit, or condition
thereof, issued pursuant to ORS 448.305, 454.010 to 454.040,
454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755 and
ORS chapters 468, 468A and 468B.
(L) Shall encourage the formulation and execution of plans in
conjunction with air and water pollution control agencies or with
associations of counties, cities, industries and other persons
who severally or jointly are or may be the source of air or water
pollution, for the prevention and abatement of pollution.
(m) May determine, by means of field studies and sampling, the
degree of air or water pollution in various regions of the state.
(n) May perform such other and further acts as may be
necessary, proper or desirable to carry out effectively the
duties, powers and responsibilities of the department as set
forth in ORS 448.305, 454.010 to 454.040, 454.205 to 454.255,
454.505 to 454.535, 454.605 to 454.755 and ORS chapters 468, 468A
and 468B.
(o) Shall coordinate any activities of the department related
to a watershed enhancement project approved by the { - Oregon
Watershed Enhancement Board - } { + Oregon Department of
Natural Resources + } under ORS 541.375 with activities of other
cooperating state and federal agencies participating in the
project.
(2) Nothing in this section shall affect the authority of the
Oregon Health Authority to make and enforce rules:
(a) Regarding the quality of water for human or animal
consumption pursuant to ORS 448.115 to 448.325, 624.010 to
624.121 and 624.310 to 624.430; and
(b) Regarding the quality of water for public swimming places
pursuant to ORS 431.110.
(3) Nothing in this section shall prevent the State Department
of Agriculture or the { - State Forestry Department - } { +
Oregon Department of Natural Resources + } from independently
receiving moneys from a public or private agency for the purposes
of preventing or controlling air or water pollution resulting
from agricultural or silvicultural activities or soil erosion, or
for research related to such purposes.
(4)(a) In awarding a public contract under ORS 279.835 to
279.855 or ORS chapter 279A, 279B or 279C for a removal or
remedial action pursuant to ORS 465.200 to 465.545, a corrective
action or cleanup action pursuant to ORS 466.005 to 466.385,
466.605 to 466.680 or 466.706 to 466.882 or a removal pursuant to
ORS 468B.005 to 468B.030, 468B.035, 468B.048 to 468B.085,
468B.090, 468B.093, 468B.095 and 468B.300 to 468B.500, the
{ - department - } { + Department of Environmental
Quality + }, and the Oregon Department of Administrative Services
{ - , - } when administering the establishment of such a
contract on behalf of the Department of Environmental Quality
under ORS 279A.050 and 279A.140, shall subtract from the amount
of any bid or proposal the hazardous waste management fees and
solid waste fees that would be required by law to be paid to the
department for waste that would be disposed of at a solid waste
disposal site or a hazardous waste or PCB disposal facility,
based on the bid or proposal. The amount to be subtracted shall
be established on the basis of reasonable preprocurement
estimates of the amount of waste that would be disposed of under
the contract and that would be subject to those fees.
(b) The subtraction for fees under paragraph (a) of this
subsection shall apply only to a contract reasonably anticipated
to involve the disposal of no less than 50 tons of hazardous
waste or no less than 500 tons of solid waste. The Legislative
Assembly finds that making accurate advance estimates of amounts
of waste that would be disposed of in projects of this character
is technically challenging and requires the application of
professional discretion. Therefore, no award of a contract under
this subsection shall be subject to challenge, under ORS
279B.410, 279B.415 or 279C.460 or otherwise, on the ground of the
inaccuracy or claimed inaccuracy of any such estimate.
(c) The subtraction for fees under paragraph (a) of this
subsection shall not apply to the establishment, by or on behalf
of the department, of master contracts by which the department
engages the services of a contractor over a period of time for
the purpose of issuing work orders for the performance of
environmental activities on a project or projects for which the
amounts of waste to be disposed of were not reasonably identified
at the inception of the master contracts. However, the department
shall require any contractor under a master contract to apply the
subtraction for fees under paragraph (a) of this subsection in
the selection of any subcontractor to perform the removal of
waste in amounts equaling or exceeding the amounts set forth in
paragraph (b) of this subsection. Nothing in this subsection
shall be construed to prohibit the department or the Oregon
Department of Administrative Services from establishing contracts
pursuant to this section through contracting procedures
authorized by ORS 279.835 to 279.855 and ORS chapters 279A, 279B
and 279C that do not require the solicitation of bids or
proposals.
SECTION 2137a. ORS 468A.215 is amended to read:
468A.215. (1) There is created the Oregon Global Warming
Commission. The commission shall consist of { - 25 - } { + 24
+ }members, including 11 voting members appointed by the
Governor under this section and { - 14 - } { + 13 + } ex
officio nonvoting members specified in ORS 468A.220.
(2) Members of the commission appointed under this section
shall be appointed so as to be representative of the social,
environmental, cultural and economic diversity of the state and
to be representative of the policy, science, education and
implementation elements of the efforts to reduce greenhouse gas
emissions and to prepare Oregon for the effects of global
warming. Of the members appointed by the Governor under this
section:
(a) One member shall have significant experience in
manufacturing;
(b) One member shall have significant experience in energy;
(c) One member shall have significant experience in
transportation;
(d) One member shall have significant experience in forestry;
(e) One member shall have significant experience in
agriculture; and
(f) One member shall have significant experience in
environmental policy.
(3) The Governor shall select a chairperson and a vice
chairperson from among the members appointed under this section.
(4) The term of office of a member appointed under this section
is four years. Before the expiration of the term of a member, the
Governor shall appoint a successor whose term begins on January
31 next following. A member appointed under this section is
eligible for reappointment. In case of vacancy for any cause, the
Governor shall make an appointment to become immediately
effective for the unexpired term.
(5) The members of the commission appointed under this section
must be residents of this state. Failure of a member to maintain
compliance with the eligibility requirements related to the
member's appointment shall result in disqualification from
serving on the commission.
(6) Voting members of the commission appointed under this
section are entitled to expenses as provided in ORS 292.495 (2).
SECTION 2138. ORS 468A.220 is amended to read:
468A.220. (1) In addition to the members appointed under ORS
468A.215, the Oregon Global Warming Commission shall include the
following ex officio members:
(a) The Director of the State Department of Energy;
(b) The Director of Transportation;
(c) The chairperson of the Public Utility Commission of Oregon;
(d) The Director of the Department of Environmental Quality;
(e) The Director of Agriculture;
{ - (f) The State Forester; - }
{ - (g) - } { + (f) + } The { - Water Resources
Director - } { + Director of the Oregon Department of Natural
Resources + }; and
{ - (h) - } { + (g) + } Three additional ex officio
nonvoting members, each from a state agency or an academic
institution.
(2) The following representatives of the Legislative Assembly
also shall serve as ex officio nonvoting members:
(a) Two members of the Senate, not from the same political
party, appointed by the President of the Senate; and
(b) Two members of the House of Representatives, not from the
same political party, appointed by the Speaker of the House of
Representatives.
(3) Each legislative member serves at the pleasure of the
appointing authority and may serve so long as the member remains
in the chamber of the Legislative Assembly from which the member
was appointed.
SECTION 2139. ORS 468B.365 is amended to read:
468B.365. (1) The Department of Environmental Quality shall
approve a contingency plan only if it determines that the plan
meets the requirements of ORS 468B.345 to 468B.360 and:
(a) The covered vessel or facility demonstrates evidence of
compliance with ORS 468B.390; and
(b) If implemented, the plan is capable, to the maximum extent
practicable in terms of personnel, materials and equipment, of
removing oil promptly and properly and minimizing any damage to
the environment.
(2) An owner or operator of a covered vessel or facility shall
notify the department in writing immediately of any significant
change affecting the contingency plan, including changes in any
factor set forth in this section or in rules adopted by the
Environmental Quality Commission. The department may require the
owner or operator to update a contingency plan as a result of
these changes.
(3) A holder of an approved contingency plan does not violate
the terms of the contingency plan by furnishing to another plan
holder, after notifying the department, equipment, materials or
personnel to assist the other plan holder in a response to an oil
discharge. The plan holder shall replace or return the
transferred equipment, materials and personnel as soon as
feasible.
(4) The department may attach any reasonable term or condition
to its approval or modification of a contingency plan that the
department determines is necessary to insure that the applicant:
(a) Has access to sufficient resources to protect
environmentally sensitive areas and to prevent, contain, clean up
and mitigate potential oil discharges from the facility or tank
vessel;
(b) Maintains personnel levels sufficient to carry out
emergency operations; and
(c) Complies with the contingency plan.
(5) The contingency plan must provide for the use by the
applicant of the best technology available at the time the
contingency plan was submitted or renewed.
(6) The department may require an applicant or a holder of an
approved contingency plan to take steps necessary to demonstrate
its ability to carry out the contingency plan, including:
(a) Periodic training;
(b) Response team exercises; and
(c) Verification of access to inventories of equipment,
supplies and personnel identified as available in the approved
contingency plan.
(7) The department may consider evidence that oil discharge
prevention measures such as double hulls or double bottoms on
vessels or barges, secondary containment systems, hydrostatic
testing, enhanced vessel traffic systems or enhanced crew or
staffing levels have been implemented and in its discretion, may
make exceptions to the requirements of this section to reflect
the reduced risk of oil discharges from the facility or tank
vessel for which the plan is submitted or being modified.
(8) Before the { - department - } { + Department of
Environmental Quality + } approves or modifies a contingency plan
required under ORS 468B.345, the { - department - }
{ + Department of Environmental Quality + } shall provide a copy
of the contingency plan to the { - State Department of Fish and
Wildlife, the office of the State Fire Marshal and the Department
of Land Conservation and Development for review. The agencies - }
{ + Oregon Department of Natural Resources and the office of the
State Fire Marshal for review. The Oregon Department of Natural
Resources and the office + } shall review the plan according to
procedures and time limits established by rule of the
Environmental Quality Commission.
(9) Upon approval of a contingency plan, the Department { + of
Environmental Quality + } shall issue to the plan holder a
certificate stating that the plan has been approved. The
certificate shall include the name of the facility or tank vessel
for which the certificate is issued, the effective date of the
plan and the date by which the plan must be submitted for
renewal.
(10) The approval of a contingency plan by the department does
not constitute an express assurance regarding the adequacy of the
plan or constitute a defense to liability imposed under ORS
chapters 468, 468A and 468B or any other state law.
SECTION 2140. ORS 469.350 is amended to read:
469.350. (1) Applications for site certificates shall be made
to the Energy Facility Siting Council in a form prescribed by the
council and accompanied by the fee required by ORS 469.421.
(2) Copies of the notice of intent and of the application shall
be sent for comment and recommendation within specified deadlines
established by the council to the Department of Environmental
Quality, { - the Water Resources Commission, the State Fish and
Wildlife Commission, the Water Resources Director, the State
Geologist, the State Forestry Department, - } { + the Oregon
Department of Natural Resources, + } the Public Utility
Commission of Oregon, the State Department of Agriculture,
{ - the Department of Land Conservation and Development, - }
the Oregon Department of Aviation, any other state agency that
has regulatory or advisory responsibility with respect to the
facility and any city or county affected by the application.
(3) Any state agency, city or county that is requested by the
council to comment and make recommendations under this section
shall respond to the council by the specified deadline. If a
state agency, city or county determines that it cannot respond to
the council by the specified deadline because the state agency,
city or county lacks sufficient resources to review and comment
on the application, the state agency, city or county shall
contract with another entity to assist in preparing a response. A
state agency, city or county that enters into a contract to
assist in preparing a response may request funding to pay for
that contract from the council pursuant to ORS 469.360.
(4) The State Department of Energy shall notify the applicant
whether the application is complete. When the department
determines an application is complete, the department shall
notify the applicant and provide notice to the public.
SECTION 2141. ORS 469.373 is amended to read:
469.373. (1) Notwithstanding the expedited review process
established pursuant to ORS 469.370, an applicant may apply under
the provisions of this section for expedited review of an
application for a site certificate for an energy facility if the
energy facility:
(a) Is a combustion turbine energy facility fueled by natural
gas or is a reciprocating engine fueled by natural gas, including
an energy facility that uses petroleum distillate fuels for
backup power generation;
(b) Is a permitted or conditional use allowed under an
applicable local acknowledged comprehensive plan, land use
regulation or federal land use plan, and is located:
(A) At or adjacent to an existing energy facility; or
(B)(i) At, adjacent to or in close proximity to an existing
industrial use; and
(ii) In an area currently zoned or designated for industrial
use;
(c)(A) Requires no more than three miles of associated
transmission lines or three miles of new natural gas pipelines
outside of existing rights of way for transmission lines or
natural gas pipelines; or
(B) Imposes, in the determination of the Energy Facility Siting
Council, no significant impact in the locating of associated
transmission lines or new natural gas pipelines outside of
existing rights of way;
(d) Requires no new water right or water right transfer;
(e) Provides funds to a qualified organization in an amount
determined by the council to be sufficient to produce any
required reduction in carbon dioxide emissions as specified in
ORS 469.503 (2)(c)(C) and in rules adopted under ORS 469.503 for
the total carbon dioxide emissions produced by the energy
facility for the life of the energy facility; and
(f)(A) Discharges process wastewater to a wastewater treatment
facility that has an existing National Pollutant Discharge
Elimination System permit, can obtain an industrial pretreatment
permit, if needed, within the expedited review process time frame
and has written confirmation from the wastewater facility permit
holder that the additional wastewater load will be accommodated
by the facility without resulting in a significant thermal
increase in the facility effluent or without requiring any
changes to the wastewater facility National Pollutant Discharge
Elimination System permit;
(B) Plans to discharge process wastewater to a wastewater
treatment facility owned by a municipal corporation that will
accommodate the wastewater from the energy facility and supplies
evidence from the municipal corporation that:
(i) The municipal corporation has included, or intends to
include, the process wastewater load from the energy facility in
an application for a National Pollutant Discharge Elimination
System permit; and
(ii) All conditions required of the energy facility to allow
the discharge of process wastewater from the energy facility will
be satisfied; or
(C) Obtains a National Pollutant Discharge Elimination System
or water pollution control facility permit for process wastewater
disposal, supplies evidence to support a finding that the
discharge can likely be permitted within the expedited review
process time frame and that the discharge will not require:
(i) A new National Pollutant Discharge Elimination System
permit, except for a storm water general permit for construction
activities; or
(ii) A change in any effluent limit or discharge location under
an existing National Pollutant Discharge Elimination System or
water pollution control facility permit.
(2) An applicant seeking expedited review under this section
shall submit documentation to the State Department of Energy,
prior to the submission of an application for a site certificate,
that demonstrates that the energy facility meets the
qualifications set forth in subsection (1) of this section. The
department shall determine, within 14 days of receipt of the
documentation, on a preliminary, nonbinding basis, whether the
energy facility qualifies for expedited review.
(3) If the department determines that the energy facility
preliminarily qualifies for expedited review, the applicant may
submit an application for expedited review. Within 30 days after
the date that the application for expedited review is submitted,
the department shall determine whether the application is
complete. If the department determines that the application is
complete, the application shall be deemed filed on the date that
the department sends the applicant notice of its determination.
If the department determines that the application is not
complete, the department shall notify the applicant of the
deficiencies in the application and shall deem the application
filed on the date that the department determines that the
application is complete. The department or the council may
request additional information from the applicant at any time.
(4) The State Department of Energy shall send a copy of a filed
application to the Department of Environmental Quality, { - the
Water Resources Department, the State Department of Fish and
Wildlife, the State Department of Geology and Mineral Industries,
the State Department of Agriculture, the Department of Land
Conservation and Development, - } { + the State Department of
Agriculture, the Oregon Department of Natural Resources, + } the
Public Utility Commission and any other state agency, city,
county or political subdivision of the state that has regulatory
or advisory responsibility with respect to the proposed energy
facility. The State Department of Energy shall send with the copy
of the filed application a notice specifying that:
(a) In the event the council issues a site certificate for the
energy facility, the site certificate will bind the state and all
counties, cities and political subdivisions in the state as to
the approval of the site, the construction of the energy facility
and the operation of the energy facility, and that after the
issuance of a site certificate, all permits, licenses and
certificates addressed in the site certificate must be issued as
required by ORS 469.401 (3); and
(b) The comments and recommendations of state agencies,
counties, cities and political subdivisions concerning whether
the proposed energy facility complies with any statute, rule or
local ordinance that the state agency, county, city or political
subdivision would normally administer in determining whether a
permit, license or certificate required for the construction or
operation of the energy facility should be approved will be
considered only if the comments and recommendations are received
by the department within a reasonable time after the date the
application and notice of the application are sent by the
department.
(5) Within 90 days after the date that the application was
filed, the department shall issue a draft proposed order setting
forth:
(a) A description of the proposed energy facility;
(b) A list of the permits, licenses and certificates that are
addressed in the application and that are required for the
construction or operation of the proposed energy facility;
(c) A list of the statutes, rules and local ordinances that are
the standards and criteria for approval of any permit, license or
certificate addressed in the application and that are required
for the construction or operation of the proposed energy
facility; and
(d) Proposed findings specifying how the proposed energy
facility complies with the applicable standards and criteria for
approval of a site certificate.
(6) The council shall review the application for site
certification in the manner set forth in subsections (7) to (10)
of this section and shall issue a site certificate for the
facility if the council determines that the facility, with any
required conditions to the site certificate, will comply with:
(a) The requirements for expedited review as specified in this
section;
(b) The standards adopted by the council pursuant to ORS
469.501 (1)(a), (c) to (e), (g), (h) and (L) to (o);
(c) The requirements of ORS 469.503 (3); and
(d) The requirements of ORS 469.504 (1)(b).
(7) Following submission of an application for a site
certificate, the council shall hold a public informational
meeting on the application. Following the issuance of the
proposed order, the council shall hold at least one public
hearing on the application. The public hearing shall be held in
the area affected by the energy facility. The council shall mail
notice of the hearing at least 20 days prior to the hearing. The
notice shall comply with the notice requirements of ORS 197.763
(2) and shall include, but need not be limited to, the following:
(a) A description of the energy facility and the general
location of the energy facility;
(b) The name of a department representative to contact and the
telephone number at which people may obtain additional
information;
(c) A statement that copies of the application and proposed
order are available for inspection at no cost and will be
provided at reasonable cost; and
(d) A statement that the record for public comment on the
application will close at the conclusion of the hearing and that
failure to raise an issue in person or in writing prior to the
close of the record, with sufficient specificity to afford the
decision maker an opportunity to respond to the issue, will
preclude consideration of the issue, by the council or by a court
on judicial review of the council's decision.
(8) Prior to the conclusion of the hearing, the applicant may
request an opportunity to present additional written evidence,
arguments or testimony regarding the application. In the
alternative, prior to the conclusion of the hearing, the
applicant may request a contested case hearing on the
application. If the applicant requests an opportunity to present
written evidence, arguments or testimony, the council shall leave
the record open for that purpose only for a period not to exceed
14 days after the date of the hearing. Following the close of the
record, the department shall prepare a draft final order for the
council. If the applicant requests a contested case hearing, the
council may grant the request if the applicant has shown good
cause for a contested case hearing. If a request for a contested
case hearing is granted, subsections (9) to (11) of this section
do not apply, and the application shall be considered under the
same contested case procedures used for a nonexpedited
application for a site certificate.
(9) The council shall make its decision based on the record and
the draft final order prepared by the department. The council
shall, within six months of the date that the application is
deemed filed:
(a) Grant the application;
(b) Grant the application with conditions;
(c) Deny the application; or
(d) Return the application to the site certification process
required by ORS 469.320.
(10) If the application is granted, the council shall issue a
site certificate pursuant to ORS 469.401 and 469.402.
Notwithstanding subsection (6) of this section, the council may
impose conditions based on standards adopted under ORS 469.501
(1)(b), (f) and (i) to (k), but may not deny an application based
on those standards.
(11) Judicial review of the approval or rejection of a site
certificate by the council under this section shall be as
provided in ORS 469.403.
SECTION 2142. ORS 469.840 is amended to read:
469.840. (1) There is established a Northwest Regional Power
and Conservation Account. Moneys received pursuant to Public Law
96-501 shall be placed in the account.
(2) The account created by subsection (1) of this section is
continuously appropriated for disbursement to state agencies,
including but not limited to the Public Utility Commission, the
State Department of Energy { - , the State Department of Fish
and Wildlife and the Water Resources Department - } { + and the
Oregon Department of Natural Resources, + } to carry out the
purposes of Public Law 96-501, subject to legislative approval or
limitation by law or Emergency Board action.
SECTION 2143. ORS 517.430 is amended to read:
517.430. { - (1) - } The lessee of the { - Department of
State Lands - } { + Oregon Department of Natural Resources + }
under ORS 273.551 may use down timber found on the premises for
fuel, and may cut and use green timber in the construction of
buildings required in the operation of a mine on the premises,
{ - or - } for lining test pits or shafts, { - or - } for
timbering drifts or excavations { - , - } or for other mining
purposes, but for no other purpose.
{ - (2) The lessee of the State Forester under ORS 273.551
may use down timber found on the premises for fuel and may cut
and use green timber for lining test pits or shafts, or for
timbering drifts or excavations, or for other mining purposes,
but for no other purpose. - }
SECTION 2144. ORS 570.770 is amended to read:
570.770. (1) The Invasive Species Council is established within
the State Department of Agriculture. Except as provided in ORS
570.780 (1), the council shall consist of { - 15 - }
{ + 14 + } members. The following persons are voting ex officio
members of the council:
(a) The Director of Agriculture or a designated representative.
(b) The president of Portland State University or a designated
representative.
(c) The { - State Fish and Wildlife Director - }
{ + Director of the Oregon Department of Natural Resources + }
or a designated representative.
(d) The administrative head of the Sea Grant College of Oregon
State University or a designated representative.
{ - (e) The State Forester or a designated
representative. - }
{ - (f) - } { + (e) + } The Director of the Department of
Environmental Quality or a designated representative.
(2) The voting ex officio members of the council described in
subsection (1) of this section shall collectively appoint
{ - nine - } { + eight + } members to the council.
(3) The term of office of each appointed member is two years,
but an appointed member serves at the pleasure of the voting ex
officio members of the council. Before the expiration of a term,
the voting ex officio members of the council shall appoint a
successor whose term begins on January 1 next following. An
appointed member may not serve more than two successive terms on
the council. If there is a vacancy in an appointed member
position for any cause, the voting ex officio members of the
council shall make an appointment to become immediately effective
for the unexpired term.
(4) In making appointments to the council, the voting ex
officio members of the council shall endeavor to appoint persons
representative of the geographic, cultural and economic diversity
of this state. The voting ex officio members of the council may
give consideration to nominations submitted by federal and state
agencies, local governments, universities, industry and other
groups having an interest in invasive species.
(5) An appointed member of the council is not entitled to
compensation under ORS 292.495. A member of the council is not
entitled to reimbursement for expenses. At the discretion of the
council, council members may be reimbursed from funds available
to the council for actual and necessary travel and other expenses
incurred by members of the council in the performance of their
official duties, subject to the limits described in ORS 292.495.
SECTION 2145. ORS 570.780 is amended to read:
570.780. (1) Subject to available funding, the Invasive Species
Council may appoint a State Invasive Species Coordinator to serve
at the pleasure of the voting members of the council. If the
council appoints a coordinator, the coordinator shall serve as a
nonvoting ex officio member of the council.
(2) The State Department of Agriculture is responsible for
ensuring payment of the administrative expenses of the council.
The State Department of Agriculture may enter into interagency
agreements under ORS 190.110 with the { - State Department of
Fish and Wildlife, the State Forestry Department, - }
{ + Oregon Department of Natural Resources, + } the Department
of Environmental Quality, Portland State University and Oregon
State University for sharing the administrative expenses of the
council.
(3) The State Department of Agriculture shall act as the fiscal
agent of the council for purposes of:
(a) Budgeting, interagency agreements for sharing
administrative expenses or other mechanisms for paying the
administrative and other expenses of the council;
(b) Drafting and processing contracts, other agreements, grant
applications or other documents;
(c) Receiving gifts, grants, donations or other moneys on
behalf of the council and ensuring the appropriate crediting of
those moneys to the Invasive Species Council Account or the trust
account described in ORS 570.800; and
(d) Taking all reasonable actions to ensure the council is in
compliance with state financial administration laws.
SECTION 2146. ORS 634.550 is amended to read:
634.550. (1) There is created a Pesticide Analytical and
Response Center with a governing board consisting of the
following members:
(a) The Director of Agriculture or designee.
(b) The { - State Forester - } { + Director of the Oregon
Department of Natural Resources + } or designee.
{ - (c) The State Fish and Wildlife Director or designee. - }
{ - (d) - } { + (c) + } The Director of the Department of
Environmental Quality or designee.
{ - (e) - } { + (d) + } The Director of the Oregon Health
Authority or designee.
{ - (f) - } { + (e) + } The Administrator of the
Occupational Safety and Health Division or designee.
{ - (g) - } { + (f) + } The State Fire Marshal or designee.
{ - (h) - } { + (g) + } The Director of the Poison Control
and Drug Information Program of the Oregon Health and Science
University or designee.
{ - (i) - } { + (h) + } One { - citizen - }
{ + resident + } from the state at large appointed jointly by
the Director of Agriculture and the Director of the Oregon Health
Authority.
(2) The Director of Agriculture shall appoint an administrator
for the Pesticide Analytical and Response Center, who shall be
responsible to the board for performance of the duties of the
center and the board.
(3) The Director of Agriculture or designee and the Director of
the Oregon Health Authority or designee shall alternate as
chairperson of the board for terms of one year each. When one is
serving as chairperson, the other shall serve as vice
chairperson.
(4) The board shall seek expert consultation from the extension
service toxicology program, the Center for Research on
Occupational and Environmental Toxicology and such other sources
as may be needed.
(5) The functions of the board are to:
(a) Direct the activities and priorities of the administrator
of the center.
(b) Centralize receiving of information relating to actual or
alleged health and environmental incidents involving pesticides.
(c) Mobilize expertise necessary for timely and accurate
investigation of pesticide incidents and analyses of associated
samples.
(d) Identify trends and patterns of problems related to
pesticide use.
(e) Make recommendations for action to a state agency when a
majority of the board considers that such action may be warranted
on the basis of the findings of an incident investigation or on
the basis of identification of a trend or pattern of problems.
Recommended actions may include, but not be limited to,
regulatory action, modification of administrative rules, proposal
of new legislation, public education and consultation to
industry.
(f) Report in a standardized format the results of the
investigations of pesticide incidents.
(g) Establish by consensus, procedures for carrying out its
responsibilities within the limits of available resources.
(h) Prepare and submit to each session of the Legislative
Assembly a report of the activities of the center that includes a
record of recommendations made by the board and the actions
resulting from the board's work.
(6) Upon receipt of a recommendation from the board, a state
agency shall respond in a timely manner to inform the board of
actions taken or the reasons for taking no action on the
recommendation.
(7) Any medical information received by a member of the board
or by a staff member of the center in the course of carrying out
the duties of the center or the board shall be held confidential
as provided in ORS 192.518 to 192.529 and 433.008.
(8) The functions of the board do not supersede the regulatory
authority of any agency and are not in lieu of the regulatory
authority of any agency.
SECTION 2147. ORS 634.660 is amended to read:
634.660. Each of the following state agencies or services shall
implement integrated pest management practices when carrying out
the agency's duties related to pest control:
(1) State Department of Agriculture, including the control of
noxious weeds.
(2) { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + }.
(3) Department of Transportation.
{ - (4) State Parks and Recreation Department. - }
{ - (5) State Forestry Department. - }
{ - (6) - } { + (4) + } Department of Corrections.
{ - (7) - } { + (5) + } Oregon Department of Administrative
Services.
{ - (8) The Department of State Lands. - }
{ - (9) - } { + (6) + } Each Oregon institution of higher
education, for the institution's own building and grounds
maintenance.
SECTION 2148. ORS 805.256 is amended to read:
805.256. (1) After deduction of the cost of administration of
the salmon registration plate program, moneys from the surcharge
imposed by ORS 805.255 shall be { - transferred and
appropriated as follows - } { + deposited in the Oregon Natural
Resources Fund and are appropriated as follows + }:
(a) Half of the moneys { - shall be transferred to the Oregon
Watershed Enhancement Board established under ORS 541.360 and - }
are continuously appropriated to the { - board - } { + Oregon
Department of Natural Resources + } for activities under ORS
541.379 related to the restoration and protection of native
salmonid populations, watersheds, fish and wildlife habitats and
water quality, including but not limited to activities under the
Oregon Plan; and
(b) Half of the moneys { - shall be transferred to the State
Parks and Recreation Department Fund established under ORS
390.134 and continuously appropriated - } { + are continuously
appropriated to the department + } for the purposes described in
ORS 390.134 (4).
(2) As used in this section, 'the cost of administration of the
salmon registration plate program' is the sum of all Department
of Transportation expenses for the issuance or transfer of salmon
registration plates under ORS 805.255 that are above the normal
costs of issuing, renewing and transferring registration plates
in the normal course of the business of the department. These
expenses include, but are not limited to, the costs of collecting
the salmon registration plate surcharge and transferring salmon
registration plates.
SECTION 2149. Section 6, chapter 1059, Oregon Laws 1999, as
amended by section 1154, chapter 595, Oregon Laws 2009, is
amended to read:
{ + Sec. 6. + } In carrying out its responsibilities under
sections 2 to 9, chapter 1059, Oregon Laws 1999, the State
Department of Agriculture shall seek technical assistance as
appropriate from at least the following entities:
(1) Oregon Department of Administrative Services;
(2) Department of Environmental Quality;
(3) { - State Department of Fish and Wildlife - }
{ + Oregon Department of Natural Resources + };
{ - (4) State Forestry Department; - }
{ - (5) - } { + (4) + } Occupational Safety and Health
Division of the Department of Consumer and Business Services;
{ - (6) - } { + (5) + } Oregon Health Authority;
{ - (7) - } { + (6) + } Oregon Poison Center;
{ - (8) - } { + (7) + } Pesticide Analytical and Response
Center; and
{ - (9) - } { + (8) + } Office of the State Fire Marshal.
{ + NOTE: + } Section 2150 was deleted. Subsequent sections
were not renumbered.
SECTION 2151. { + + } Section 3, chapter 636, Oregon Laws
2009, as amended by section 1, chapter 888, Oregon Laws 2009, is
amended to read:
{ + Sec. 3. + } (1) Notwithstanding ORS 215.700 to 215.780,
one or two small-scale recreation communities may be established
as specified in sections 2 to 5, chapter 636, Oregon Laws 2009.
(2) If, within one year after { - the effective date of
chapter 636, Oregon Laws 2009 - } { + June 29, 2009 + }, the
owner of a Metolius resort site notifies the { - Department of
Land Conservation and Development - } { + Oregon Department of
Natural Resources + } that it has elected to seek approval of a
small-scale recreation community, the owner may, within three
years after { - the effective date of chapter 636, Oregon Laws
2009 - } { + June 29, 2009 + }, apply to a county for approval
of a small-scale recreation community.
(3) A small-scale recreation community authorized under
sections 2 to 5, chapter 636, Oregon Laws 2009, may be
established only in conjunction with a transfer of development
opportunity from a Metolius resort site. A transfer of
development opportunity must be carried out through an agreement
between the owner of a Metolius resort site and the owner of the
site proposed for development of a small-scale recreation
community. In the agreement, the owner of the Metolius resort
site must:
(a) Agree to limit the use of the Metolius resort site,
consistent with the management plan in consideration for the
opportunity to participate in the development of the small-scale
recreation community; and
(b) Agree to grant a conservation easement pursuant to ORS
271.715 to 271.795 that:
(A) Limits the use of the Metolius resort site to be consistent
with the management plan;
(B) Allows public access to that portion of the site that is
not developed; and
(C) Contains other provisions, as required by the department
{ - of Land Conservation and Development - } , that are
necessary to ensure that the conservation easement is
enforceable.
(4) A small-scale recreation community authorized under
sections 2 to 5, chapter 636, Oregon Laws 2009, must be sited on
land that is within a county that has a seasonally adjusted
average annual unemployment rate over the preceding 10 calendar
years that is more than 110 percent of the unemployment rate for
the entire state over the same period, as reported by the
Employment Department and that is either:
(a) Planned and zoned for forest use; or
(b) Rural and not subject to statewide land use planning goals
relating to agricultural lands or forestlands.
(5) A small-scale recreation community authorized under
sections 2 to 5, chapter 636, Oregon Laws 2009, may not be sited
on land that is:
(a) Within an area identified as 'Area 1' or 'Area 2' in the
management plan.
(b) Within an area described in ORS 197.455 in which
destination resorts may not be sited.
(c) Within an area protected by or inventoried as a significant
resource in an acknowledged comprehensive plan provision
implementing statewide land use planning goals relating to:
(A) Open space, scenic and historic areas and natural
resources;
(B) Estuarine resources;
(C) Coastal shorelands; or
(D) Beaches and dunes.
(d) Within an area identified as subject to a natural hazard by
an acknowledged comprehensive plan provision implementing a
statewide land use planning goal relating to protection from
natural hazards.
SECTION 2152. { + + } Section 5, chapter 636, Oregon Laws
2009, as amended by section 3, chapter 888, Oregon Laws 2009, is
amended to read:
{ + Sec. 5. + } (1) An application for a small-scale
recreation community under sections 2 to 5, chapter 636, Oregon
Laws 2009, may be filed only by the owner of a Metolius resort
site and the owner of the site on which development of the
small-scale recreation community is proposed and must be filed
jointly by the owners. The owners shall file a copy of the
application with the
{ - Department of Land Conservation and Development - }
{ + Oregon Department of Natural Resources + } at the same time
that the owners file the application with the county having land
use jurisdiction over the proposed development site.
(2) A county shall review an application for a small-scale
recreation community under sections 2 to 5, chapter 636, Oregon
Laws 2009, as a conditional use in a forest zone and as a land
division under ORS chapter 92.
(3) In addition to the standards set forth in sections 2 to 5,
chapter 636, Oregon Laws 2009, the small-scale recreation
community must meet the land division standards and other
development standards of the county, including standards for
streets, utilities and services, unless the standards conflict
with sections 2 to 5, chapter 636, Oregon Laws 2009. If the
development standards of the county are dependent on the zoning
of the site, the county shall apply the development standards for
the county's most dense rural residential zone.
(4) If more than two applications for a small-scale recreation
community are filed under sections 2 to 5, chapter 636, Oregon
Laws 2009, and a county has not yet approved an application, the
department shall determine which of the applications may proceed,
taking into consideration:
(a) The time at which each application was filed;
(b) The unemployment rate in the counties, if more than one
county is involved; and
(c) The findings set forth in section 1, chapter 636, Oregon
Laws 2009.
(5) When two applications for small-scale recreation
communities have been approved, additional applications may not
be considered.
(6) A county may charge a fee to cover the costs of processing
an application.
SECTION 2153. Section 6, chapter 636, Oregon Laws 2009, as
amended by section 3, chapter 5, Oregon Laws 2010, is amended to
read:
{ + Sec. 6. + } (1) There is established the Oregon Transfer
of Development Rights Pilot Program in the { - Department of
Land Conservation and Development - } { + Oregon Department of
Natural Resources + }. Working with { - the State Forestry
Department, - } the State Department of Agriculture and local
governments and with other state agencies, as appropriate, the
{ - Department of Land Conservation and Development - }
{ + Oregon Department of Natural Resources + } shall implement
the pilot program.
(2) The { - Land Conservation and Development Commission - }
{ + Oregon Natural Resources Commission + } shall adopt rules to
implement the pilot program. The commission, by rule, may:
(a) Establish a maximum ratio of transferable development
rights to severed development interests in a sending area for
each pilot project. The maximum ratio:
(A) Must be calculated to protect lands planned and zoned for
forest use and to create incentives for owners of land in the
sending area to participate in the pilot project; and
(B) May not exceed one transferable development right to one
severed development interest if the receiving area is outside of
an urban growth boundary.
(b) Require participating owners of land in a sending area to
grant conservation easements pursuant to ORS 271.715 to 271.795,
or otherwise obligate themselves, to ensure that additional
residential development of their property does not occur.
(c) Require participating owners of land in a sending area to
allow reasonable public access to the property.
(3) The commission, by rule, shall establish a process for
selecting pilot projects from among potential projects nominated
by local governments. The process must require local governments
to nominate potential projects by submitting a concept plan for
each proposed pilot project, including proposed amendments, if
any, to the comprehensive plan and land use regulations
implementing the plan that are necessary to implement the pilot
project.
(4) When selecting a pilot project, the commission must find
that the pilot project is:
(a) Reasonably likely to provide a net benefit to the forest
economy or the agricultural economy of this state;
(b) Designed to avoid or minimize adverse effects on
transportation, natural resources, public facilities and
services, nearby urban areas and nearby farm and forest uses; and
(c) Designed so that new development authorized in a receiving
area does not conflict with a resource or area inventoried under
a statewide land use planning goal relating to natural resources,
scenic and historic areas and open spaces, or with an area
identified as a Conservation Opportunity Area in the ' Oregon
Conservation Strategy' adopted by the State Fish and Wildlife
Commission and published by the State Department of Fish and
Wildlife in September of 2006.
(5) The { + Oregon Natural Resources + } Commission may select
up to three pilot projects for the transfer of development rights
under sections 6 to 8, chapter 636, Oregon Laws 2009.
(6) A sending area for a pilot project under sections 6 to 8,
chapter 636, Oregon Laws 2009:
(a) Must be planned and zoned for forest use;
(b) May not exceed 10,000 acres; and
(c) Must contain four or fewer dwelling units per square mile.
(7) The commission may establish additional requirements for
sending areas.
(8)(a) Except as provided otherwise in paragraph (b) of this
subsection, a local government participating in a pilot project
shall select a receiving area for the pilot project based on the
following priorities:
(A) First priority is lands within an urban growth boundary;
(B) Second priority is lands that are adjacent to an urban
growth boundary and that are subject to an exception from a
statewide land use planning goal relating to agricultural lands
or forestlands;
(C) Third priority is lands that are within an urban
unincorporated community or a rural community in an acknowledged
comprehensive plan.
(b) The commission may authorize a local government to select
lower priority lands over higher priority lands for a receiving
area in a pilot project only if the local government has
established, to the satisfaction of the commission, that
selecting higher priority lands as the receiving area is not
likely to result in the severance and transfer of a significant
proportion of the development interests in the sending area
within five years after the receiving area is established.
(c) If lands described in paragraph (a)(B) of this subsection
are selected for use as a receiving area in a pilot project, the
minimum residential density of development allowed under sections
6 to 8, chapter 636, Oregon Laws 2009, must be at least 10
dwelling units per net acre.
(d) A receiving area may not be located within 10 miles of the
Portland metropolitan area urban growth boundary.
(9) The commission may establish additional requirements for
receiving areas.
(10) The commission, by rule, may provide a bonus in the form
of a higher ratio if a substantial portion of the new development
in the receiving area of the pilot project is affordable housing
within an urban growth boundary.
SECTION 2154. { + + } Section 7, chapter 636, Oregon Laws
2009, is amended to read:
{ + Sec. 7. + } (1) Notwithstanding contrary provisions of
statewide land use planning goals relating to public facilities
and services and urbanization, and notwithstanding ORS 215.700 to
215.780, a local government may change its comprehensive plan and
land use regulations implementing the plan to allow residential
development in a receiving area consistent with sections 6 to
8 { + , chapter 636, Oregon Laws 2009, + } { - of this 2009
Act - } if the { - Land Conservation and Development
Commission - } { + Oregon Natural Resources Commission + } has
approved a concept plan for the pilot project.
(2) The local governments having land use jurisdiction over
lands included in the sending area and the receiving area for the
pilot project shall adopt amendments to their respective
comprehensive plans and land use regulations implementing the
plans that are consistent with subsection (3) of this section.
(3) When the commission has approved a proposed concept plan,
the local governments having land use jurisdiction over the
affected sending area and affected receiving area shall adopt
overlay zone provisions and corresponding amendments to the
comprehensive plan and land use regulations implementing the plan
that identify the additional residential development allowed
through participation in the pilot project. The { - Department
of Land Conservation and Development - } { + Oregon Department
of Natural Resources + } shall review the overlay zones and
corresponding comprehensive plan amendments in the manner of
periodic review under ORS 197.628 to 197.650.
(4) Notwithstanding ORS 197.296 and 197.298 and statewide land
use planning goals relating to urbanization, a local government
may amend its urban growth boundary to include adjacent lands in
a receiving area, consistent with an approved concept plan, if
the net residential density of development authorized in the
receiving area is at least 10 dwelling units per acre.
(5) Local governments or other entities may establish a
development rights bank or other system to facilitate the
transfer of development rights.
(6) A county shall review an application for a pilot project
under sections 6 to 8 { + , chapter 636, Oregon Laws 2009, + }
{ - of this 2009 Act - } as a comprehensive plan amendment. A
county may apply other procedures, including master plan
approval, site plan review or conditional use review as the
county finds appropriate to subsequent phases of review of the
pilot project.
SECTION 2155. { + + } Section 8, chapter 636, Oregon Laws
2009, is amended to read:
{ + Sec. 8. + } (1) The { - Department of Land Conservation
and Development, the State Forestry Department - } { + Oregon
Department of Natural Resources + }, a local government
participating in the Oregon Transfer of Development Rights Pilot
Program or a third-party holder identified by the department
{ - of Land Conservation and Development - } may hold, monitor
or enforce a conservation easement pursuant to ORS 271.715 to
271.795 or other property interest to ensure that lands in
sending areas do not retain residential development rights
transferred under sections 6 to 8 { + , chapter 636, Oregon Laws
2009 + } { - of this 2009 Act - } .
(2) An entity that is eligible to be a holder of a conservation
easement may acquire, from a willing seller in the manner
provided by ORS 271.715 to 271.795, the right to carry out a use
of land authorized under rules of the { - Land Conservation and
Development Commission - } { + Oregon Natural Resources
Commission + } implementing the pilot program.
SECTION 2156. { + + } Section 9, chapter 636, Oregon Laws
2009, as amended by section 4, chapter 888, Oregon Laws 2009, is
amended to read:
{ + Sec. 9. + } (1) As used in this section:
(a) 'Community forestlands' has the meaning given that term in
ORS 530.600.
(b) 'Skyline Forest' means that certain real property
consisting of approximately 33,000 contiguous acres in Deschutes
County owned on June 1, 2009, by Cascade Timberlands (Oregon) LLC
and located within sections 7, 8, 15, 16, 17, 18, 19, 20, 21, 22,
26, 27, 28, 29, 30, 31, 32, 33, 34, 35 and 36, township 16 south,
range 10 east; sections 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 13,
14, 15, 16, 22, 23, 24, 25, 26, 27, 35 and 36, township 17 south,
range 10 east; and sections 6, 7, 8, 9, 17, 18, 19, 20, 29, 30,
31, 32 and 33, township 17 south, range 11 east.
(c) 'Skyline Forest Sustainable Development Area' means a
portion of up to 3,000 contiguous acres of the tract known as the
Skyline Forest that is located in township 16 south, range 10
east, Deschutes County: portions of the northwest quarter,
southwest quarter, southeast quarter, northeast quarter of
section 7; portions of the northwest quarter, southwest quarter,
southeast quarter of section 8; portions of the southwest quarter
of section 16; portions of the northwest quarter, southwest
quarter, southeast quarter, northeast quarter of section 17;
portions of the northwest quarter, southwest quarter, southeast
quarter, northeast quarter of section 18; section 19; portions of
the northwest quarter, southwest quarter, northeast quarter of
section 20; portions of the northwest quarter of section 21;
portions of the northwest quarter of section 29; and portions of
the north half of section 30.
(d) 'Skyline Conservation Tract' means the portion of the
Skyline Forest consisting of approximately 30,000 contiguous
acres that is not included within the Skyline Forest Sustainable
Development Area.
(e) 'Southern Conservation Tract' means that certain real
property consisting of approximately 34,700 acres in Deschutes
and Klamath Counties owned on June 1, 2009, by Cascade
Timberlands (Oregon) LLC and located within one of the following
areas:
(A) 'Area one' consists of approximately 14,000 acres of land
located within sections 1, 2, 3, 10, 11, 12, 13, 14, 15, 21, 22,
23, 25, 26, 27, 28, 29, 32, 33, 34 and 35 of township 22 south,
range 9 east, Deschutes County; and sections 5, 6, 7, 8, 17, 18,
30 and 31 of township 22 south, range 10 east, Deschutes County;
(B) 'Area two' consists of approximately 9,700 acres of land
located within sections 2, 3, 4, 5, 9, 10, 11, 14, 15, 17, 19,
20, 21, 22, 23, 27, 28, 29, 30, 31, 32, 33 and 34 of township 23
south, range 9 east, Klamath County and the portion of Parcel 3,
Partition Plat No. 34-08 located in township 23 south, range 9
east, Klamath County; and
(C) 'Area three' consists of approximately 11,000 acres of land
located within sections 14, 23, 24, 25, 26, 34 and 35 of township
23 south, range 9 east; sections 3, 4, 8, 9 and 17 of township 24
south, range 9 east; section 1 of township 25 south, range 7
east; sections 1, 2, 3, 4, 9, 10, 12, 13, 14, 15, 16 and 17 of
township 25 south, range 8 east; Parcel 1, Partition Plat No.
34-08 located in township 24 south, ranges 7 and 8 east, and
township 25 south, range 8 east, Klamath County; and the portion
of Parcel 3, Partition Plat No. 34-08 located in township 24
south, ranges 8 and 9 east, Klamath County and lying west of U.S.
Route 97.
(f) 'Land trust' means the Deschutes Land Trust, an Oregon
nonprofit corporation or another nonprofit conservation
organization that is either accredited by the Land Trust
Accreditation Commission or is nationally recognized as a land
conservation organization, the primary mission of which is land
conservation.
(2) Contingent upon satisfaction of the requirements of
subsection (3) of this section, the Skyline Forest Sustainable
Development Area may be developed and used for the following
purposes:
(a) The Skyline Forest Sustainable Development Area may contain
up to 282 residential units, a caretaker's residence, a
restaurant, a small community store, a small-scale community
conference center, an equestrian facility, small-scale
recreational, commercial and basic service uses, and all utility,
maintenance and security facilities necessary to support the
development. The residential units may be permanent residences,
rental units or lodging units. The specific number of residential
units allowed within the Skyline Forest Sustainable Development
Area, up to a maximum of 282, is dependent upon the number of
acres of the Skyline Conservation Tract and the Southern
Conservation Tract conveyed to a land trust or a federal or state
agency pursuant to this section. Up to:
(A) 137 residential units shall be allowed within the Skyline
Forest Sustainable Development Area in exchange for the
conveyance of the Skyline Conservation Tract to a land trust;
(B) 183 residential units shall be allowed within the Skyline
Forest Sustainable Development Area in exchange for the
conveyance of the Skyline Conservation Tract and area one of the
Southern Conservation Tract to a land trust or to a federal or
state agency;
(C) 224 residential units shall be allowed within the Skyline
Forest Sustainable Development Area in exchange for the
conveyance of the Skyline Conservation Tract, area one and area
two of the Southern Conservation Tract to a land trust or to a
federal or state agency; or
(D) 282 residential units shall be allowed within the Skyline
Forest Sustainable Development Area in exchange for the
conveyance of the Skyline Conservation Tract, area one, area two
and area three of the Southern Conservation Tract to a land trust
or to a federal or state agency.
(b) The Skyline Forest Sustainable Development Area may not
contain a golf course or golf-related facilities.
(c) All development, not including access roads and utility
lines to the Skyline Forest Sustainable Development Area and up
to five acres for maintenance and security facilities, shall be
located on 1,200 contiguous acres within the Skyline Forest
Sustainable Development Area. The owner shall use the remaining
undeveloped 1,800 acres of the Skyline Forest Sustainable
Development Area for the primary purposes of minimizing the risk
of wildfire and maintaining wildlife habitat value. However, an
equestrian facility may be located within the otherwise
undeveloped 1,800 acres if the facility is located on no more
than 40 acres contiguous to the developed portion of the Skyline
Forest Sustainable Development Area. The owner shall cause a
conservation easement pursuant to ORS 271.715 to 271.795 to be
recorded on the entirety of the undeveloped 1,800 acres
prohibiting partitions and development, but allowing access
roads, utility lines, maintenance and security facilities and
recreational uses, such as picnic grounds, trails, the equestrian
facility and restrooms. The conservation easement must be held by
a land trust and shall contain terms agreed to by the { - State
Department of Fish and Wildlife and the State Forestry
Department - } { + Oregon Department of Natural Resources + }.
(d) Roads, utility corridors and all utility facilities
necessary to serve the Skyline Forest Sustainable Development
Area shall be allowed as outright permitted uses within the
Skyline Forest Sustainable Development Area, the Skyline Forest
and on nearby lands regardless of the comprehensive plan or
zoning designation of the lands.
(e) The uses allowed by this subsection shall be allowed only
upon approval of a master plan as provided by subsection (5) of
this section. The master plan shall contain design criteria and
standards to ensure that sustainability principles will be
incorporated into the development and operation of uses within
the Skyline Forest Sustainable Development Area. The design
criteria and standards shall promote sustainable building design,
water conservation and energy conservation.
(f) The master plan described in subsection (5) of this section
shall incorporate design criteria and standards to ensure that
there will be negligible visual impacts under normal daylight
viewing conditions from Awbrey Butte and the Plainview scenic
turnout located on the McKenzie-Bend Highway No. 17, also known
as U.S. Route 20, near milepost 9. The design criteria and
standards shall also require all outdoor lighting to be downward
facing, to the extent practicable.
(g) The Skyline Forest Sustainable Development Area shall be
served by one primary access route and by one or more emergency
and secondary access routes that use existing roads as much as
practicable. The access routes may be private or public roads,
including roads managed by the United States Forest Service. The
primary access route shall intersect the McKenzie-Bend Highway
No. 17, also known as U.S. Route 20, between mileposts 3 and 6
to provide access from the eastern boundary of the Skyline Forest
Sustainable Development Area to the referenced highway.
(h) The Skyline Forest Sustainable Development Area, including
all access roads, must be developed in consultation with the
{ - State Department of Fish and Wildlife - } { + Oregon
Department of Natural Resources + } to minimize impacts on
wildlife, particularly deer and elk populations.
(i) The Skyline Forest Sustainable Development Area, including
all access roads, must be developed in consultation with the
{ - State Forestry Department - } { + Oregon Department of
Natural Resources + } and the United States Forest Service to
minimize wildfire risks.
(j) The owner of the Skyline Forest Sustainable Development
Area shall provide adequate firefighting facilities and services
to address the needs of the development. All structures shall be
designed and maintained consistent with the default wildfire
safety standards of the Oregon Forestland-Urban Interface Fire
Protection Act of 1997, as set forth in administrative rules of
the { - State Forestry Department - } { + Oregon Department
of Natural Resources + }.
(k) Any wells used to provide water for uses within the Skyline
Forest Sustainable Development Area shall be sited to minimize
impacts of groundwater use on Whychus Creek and Melvin Springs.
(3) The land uses described in subsection (2) of this section
shall be allowed within the Skyline Forest Sustainable
Development Area upon the satisfaction of the following
conditions:
(a) The owner of the Skyline Forest and the Southern
Conservation Tract transfers:
(A) The Skyline Conservation Tract to a land trust for the
purpose of creating community forestlands; and
(B) The Southern Conservation Tract, whether to a single buyer
or multiple buyers, to a land trust for the purpose of creating
community forestlands or to a federal or state agency. However,
the owner may choose to retain all or a portion of the Southern
Conservation Tract, in which case the number of residential units
allowed within the Skyline Forest Sustainable Development Area
shall be limited as set forth in subsection (2)(a) of this
section.
(b) The consideration for any transfer does not exceed the fair
market value of the property as established by an appraisal based
on the hypothetical condition or assumption that all development
rights on the properties, whether actual or potential, have been
extinguished as contemplated by subsection (7) of this section.
The appraisal must comply with the Uniform Standards of
Professional Appraisal Practice. The appraisal shall comply with
the Uniform Appraisal Standards for Federal Land Acquisitions if:
(A) The land trust or state agency proposes, in part or in
whole, to use federal funds to purchase the property and has
demonstrated a reasonable likelihood that federal funds will be
secured for the purchase; or
(B) The property is being conveyed to a federal agency.
(c) The Skyline Conservation Tract and the Southern
Conservation Tract will be managed so that wildlife and
recreational values are safeguarded and the overall forest
health, including sustainable timber production and wildfire
prevention, is maintained over the long term.
(d) The owner of the Skyline Forest Sustainable Development
Area obtains the land use approvals required by subsection (5) of
this section.
(4) The uses authorized by subsection (2) of this section shall
be allowed as outright permitted uses by Deschutes County,
following approval of the master plan required by subsection (5)
of this section by Deschutes County. The uses allowed by
subsection (2) of this section are allowed notwithstanding those
provisions of ORS 215.700 to 215.780 relating to lot size and
dwelling standards on forestlands, those statewide land use
planning goals relating to agricultural lands, forestlands,
public facilities and services, transportation and urbanization
and those provisions of Deschutes County's comprehensive plan and
land use regulations limiting uses of forestlands. Approval of
the master plan and land division applications required by
subsection (5) of this section for the development and use of the
Skyline Forest Sustainable Development Area and all associated
road and utility corridors does not require exceptions to any
statewide planning goal or amendment of any local comprehensive
plan or land use regulation. Deschutes County shall apply only
the provisions of this section as standards and criteria for an
application for, or amendment to, a master plan or land division
application or other development permit applications submitted
pursuant to this section.
(5) The owner of the Skyline Forest Sustainable Development
Area may submit an application to Deschutes County for approval
of a master plan for the development and use of the area. The
application must be submitted within five years after { - the
effective date of chapter 636, Oregon Laws 2009 - } { + June
29, 2009 + }, subject to the following:
(a) The master plan shall demonstrate compliance with
subsection (2) of this section and include a tentative land
division application to create the lots within the Skyline Forest
Sustainable Development Area.
(b) Deschutes County shall process the master plan and all land
division applications pursuant to the procedural review
provisions of its local land use regulations. However, Deschutes
County shall approve the master plan and any tentative or final
land division applications if the applications are consistent
with subsections (2) and (3) of this section. No additional land
use or land division standards shall apply to the approval and
development of the Skyline Forest Sustainable Development Area.
(c) Deschutes County shall condition final approval of the
master plan and land division applications on the execution of an
agreement to record a conservation easement in accordance with
subsection (2)(c) of this section, an agreement to transfer the
Skyline Conservation Tract to a land trust for the purpose of
creating community forestlands and, if applicable, an agreement
to transfer all or a portion of the Southern Conservation Tract
either to a land trust for the purpose of creating community
forestland or to a federal or state agency. The agreements shall
specify that recordation of the conservation easement, transfer
of the Skyline Conservation Tract and transfer of all or a
portion of the Southern Conservation Tract shall be contingent
upon the following terms:
(A) The owner of the Skyline Forest Sustainable Development
Area shall obtain all federal, state and local licenses, permits,
rights and other entitlements necessary for development of the
Skyline Forest Sustainable Development Area, each of which shall
be final and no longer subject to appeal;
(B) The land trust or the federal or state agencies, as
applicable, shall obtain adequate funding to purchase the Skyline
Conservation Tract or the Southern Conservation Tract, as
applicable, in accordance with subsection (3)(b) of this section;
and
(C) The land trust or the federal or state agencies shall
develop and implement management standards that provide
reasonable assurance to the owner of the Skyline Forest
Sustainable Development Area that the Skyline Conservation Tract
and the Southern Conservation Tract will be managed to establish
forest health, manage wildfire risk and maintain compatibility
with the Skyline Forest Sustainable Development Area.
(d) The master plan and all associated land division plans
shall govern development of the Skyline Forest Sustainable
Development Area in perpetuity and shall not expire. Regulations
requiring the submittal of final plats within a specified time
period following tentative plan approval shall not apply to the
Skyline Forest Sustainable Development Area. The master plan may
be amended at any time following an administrative review by
Deschutes County. Deschutes County shall approve the amendments
if the amended master plan remains consistent with subsections
(2) and (3) of this section.
(6) The Deschutes Land Trust, an Oregon nonprofit corporation,
shall have a right of first opportunity to purchase the Skyline
Conservation Tract and the Southern Conservation Tract, and any
purchase agreement shall provide a minimum of three years for the
Deschutes Land Trust to obtain funding for any purchase. If at
any time after two years from the date of any purchase agreement
or the date of filing of a master plan under subsection (5) of
this section, whichever is later, the Deschutes Land Trust has
failed to demonstrate a reasonable likelihood it will be able to
obtain the funds necessary to complete the purchase, the owner of
the Skyline Conservation Tract and the Southern Conservation
Tract may seek alternative buyers for any property that is the
subject of a purchase agreement under this subsection. The
Deschutes Land Trust will in good faith notify the owner of the
Skyline Conservation Tract and the Southern Conservation Tract if
at any time during the period of any purchase agreement the
Deschutes Land Trust concludes it does not wish to complete the
purchase or will be unable to obtain the necessary funding to
complete the purchase.
(7) Development and construction of uses within the Skyline
Forest Sustainable Development Area may proceed according to the
approved master plan once the transfer of fee title of the
Skyline Conservation Tract and, as applicable, all or a portion
of the Southern Conservation Tract, is complete. Following
transfer of fee title of the Skyline Conservation Tract and, as
applicable, all or a portion of the Southern Conservation Tract,
all development rights on the conveyed lands are extinguished and
the conveyed lands shall be thereafter managed as community
forestlands or as federal or state forestlands.
(8) At any time within five years after { - the effective
date of chapter 636, Oregon Laws 2009 - } { + June 29,
2009 + }, the owner of the Skyline Forest Sustainable Development
Area may either file an application for a master plan pursuant to
subsection (5) of this section, or submit written notice to
Deschutes County and the Deschutes Land Trust stating the owner's
intent to relinquish the development opportunities authorized by
this section. Until the owner of the Skyline Forest Sustainable
Development Area files a master plan application or submits a
notice of relinquishment under this subsection, the owner may not
divide, develop, obtain a lot of record determination or prohibit
public access to any portion of the Skyline Forest. If the owner
of the Skyline Forest Sustainable Development Area submits a
notice of relinquishment under this subsection, or the owner
allows the five-year time period to elapse without taking any
action under this subsection, the development opportunities
authorized by this section shall expire and the owner may divide,
develop and prohibit public access to any portion of Skyline
Forest pursuant to the laws in effect at that time.
(9) If the owner of the Skyline Forest Sustainable Development
Area does not file a master plan within five years of
{ - the effective date of chapter 636, Oregon Laws 2009 - }
{ + June 29, 2009 + }, or if Deschutes County does not approve
a master plan as provided in subsection (5) of this section
within 10 years of { - the effective date of chapter 636,
Oregon Laws 2009 - } { + June 29, 2009 + }, then the provisions
of subsection (2) of this section shall cease to have any force
or effect.
(10) The development opportunities provided by this section are
fully transferable and will run with the land in the event of a
change of ownership of the Skyline Forest or all or a portion of
the Southern Conservation Tract.
SECTION 2157. { + + } Section 10, chapter 636, Oregon Laws
2009, is amended to read:
{ + Sec. 10. + } On or before February 1, 2013, the
{ - Department of Land Conservation and Development - }
{ + Oregon Department of Natural Resources + } shall make a
report to the Seventy-seventh Legislative Assembly, in the manner
described in ORS 192.245:
(1) Evaluating the Oregon Transfer of Development Rights Pilot
Program established in sections 6 to 8 { + , chapter 636, Oregon
Laws 2009 + } { - of this 2009 Act - } ; and
(2) Recommending whether the pilot program should be continued,
modified, expanded or terminated.
SECTION 2158. Section 1, chapter 11, Oregon Laws 2010, is
amended to read:
{ + Sec. 1. + } (1) Notwithstanding ORS 274.705 to 274.860 or
520.240, any form of leasing for purposes of exploration,
development or production of oil, gas or sulfur is prohibited in
the territorial sea.
(2) The provisions of subsection (1) of this section do not
apply:
(a) To exploration for scientific or academic research
purposes, or geologic survey activities of the { - State
Department of Geology and Mineral Industries - } { + Oregon
Department of Natural Resources + }.
(b) In the event the Governor determines that an oil embargo
substantially affects the supply of oil to the United States.
(3) Any exploration for oil, gas or sulfur in the territorial
sea allowed under ORS 274.705 to 274.860 by the State Land Board
or the department { - of State Lands - } must conform to
standards of the Oregon Ocean Resources Management Program
established under ORS 196.405 to 196.515.
(4) For the purposes of this section:
(a) 'Gas' means:
(A) All natural gas, gas hydrates and all fluid hydrocarbons
not defined as oil in this subsection; and
(B) Condensate originally in the gaseous phase in the
reservoir.
(b) 'Oil' means crude petroleum oil and all other hydrocarbons
produced in liquid form by ordinary production methods,
regardless of gravity, other than liquid hydrocarbons originally
in a gaseous phase in the reservoir.
(c) 'Territorial sea' has the meaning given that term in ORS
196.405.
SECTION 2159. Section 1, chapter 63, Oregon Laws 2010, is
amended to read:
{ + Sec. 1. + } (1) Notwithstanding ORS 543.440, and subject
to subsections (2) and (3) of this section, a license issued for
a project under ORS 543.010 to 543.610 shall continue in effect
following a transfer of the license, rights or property of the
project to a county if:
(a) The project is located in the Umatilla Basin;
(b) The transfer of the license, rights or property is to
Umatilla County;
(c) The transfer occurred through the foreclosure of a tax
lien; and
(d) The transfer occurred on or before January 1, 2010.
(2) The license for a project described in subsection (1) of
this section, and any water right that is included in the
license, shall terminate:
(a) Upon Umatilla County commencing to operate the project for
purposes of hydroelectric generation;
(b) Two years after transfer of the license, rights or property
of the project to Umatilla County, unless the county has
transferred all county-held licenses, rights and property of the
project to a new owner that is unaffiliated with the county; or
(c) If a new owner of the project fails to comply with
subsection (3) of this section prior to operating the project.
(3) If a project is transferred as described in subsection
(2)(b) of this section:
(a) The project license authorizing the use of water by the
project for hydroelectric purposes, and any water right included
in the license, is subordinate in priority to any in-stream water
right for which a water right certificate is issued on or before
{ - the effective date of this 2010 Act - } { + March 18,
2010 + }.
(b) Prior to the new owner operating the project, the
{ - Water Resources Department - } { + Oregon Department of
Natural Resources + } shall modify the conditions of the license,
and of any water right included in the license, to include an
implementation plan for fish passage and fish screening approved
by the { - State Department of Fish and Wildlife - }
{ + department + } as described in paragraph (c) of this
subsection.
(c) The new owner of the project shall develop an
implementation plan for fish passage and fish screening for the
project. The implementation plan shall identify project repairs
or modifications necessary for the project to meet the fish
passage and fish screening criteria of the { - State Department
of Fish and Wildlife - } { + department + }. The new owner
shall submit the plan to the
{ - State Department of Fish and Wildlife - }
{ + department + } for approval. The department shall consult
with the Confederated Tribes of the Umatilla Indian Reservation
before approving or disapproving a submitted plan. { - Upon
approval of a plan by the State Department of Fish and Wildlife,
the department shall notify the Water Resources Department to - }
{ + Upon approval of a plan, the department shall + }
incorporate the approved plan as a condition of the project
license and of any water right included in the license.
(d) An implementation plan may contain provisions allowing the
new owner to operate the project while project repairs or
modifications are in progress. An implementation plan shall
include, but need not be limited to, the following:
(A) Provisions for the protection of salmonids and lamprey.
(B) Interim measures identified by the { - State Department
of Fish and Wildlife - } { + department + } to reduce
entrainment and improve fish passage. The implementation plan
shall require that the new owner install the interim measures
prior to the new owner operating the project.
(C) A schedule for making repairs or modifications that
provides for all of the repairs and modifications to be completed
no later than four years after the project resumes operation.
(D) Provisions for monitoring, reporting and site access to the
extent the { - State Department of Fish and Wildlife - }
{ + department + } considers necessary to ensure compliance with
the implementation plan.
(E) Procedures for immediately addressing significant fish
mortality, or significant delay in fish passage, resulting from
project operations. The procedures shall include, at a minimum,
provisions for giving notice to the { - State Department of
Fish and Wildlife and Water Resources Department - }
{ + department + }, and for suspending project operations until
the cause of the mortality or delay is identified and remedied.
(4) Notwithstanding any provision of a license for a project
described in subsection (1) of this section, the license is not
subject to termination based upon a failure to make beneficial
use of water:
(a) During the period of any legal proceeding for the
foreclosure of a tax lien;
(b) During a period, not exceeding two years, in which Umatilla
County owns the project; or
(c) During a period, not exceeding five years following
transfer of the license, rights or property of the project from
Umatilla County to a new owner, if the new owner is actively
engaged in:
(A) Attempting to obtain government authorization for operation
of the project; or
(B) Attempting to install interim measures to reduce
entrainment and improve fish passage under an implementation
plan.
(5) If the water right that is included in the license of a
project described in subsection (1) of this section is terminated
based upon a failure to make beneficial use of water, the
{ - Water Resources - } department shall convert the water
right to an in-stream water right as provided under ORS 543A.305.
(6) Subject to subsections (1) to (4) of this section, a new
owner that acquires a license, right or property of a project
described in subsection (1) of this section following Umatilla
County ownership of the license, right or property is considered
a successor or assignee of an original licensee for purposes of
ORS 543.440.
SECTION 2160. ORS 541.390 is amended to read:
541.390. In addition to the duties conferred on the Natural
Resources Division of the State Department of Agriculture under
ORS 561.400 and 568.210 to 568.808 and 568.900 to 568.933, the
division shall:
(1) In cooperation with the { - Oregon Watershed Enhancement
Board - } { + Oregon Department of Natural Resources + },
provide appropriate personnel who, under the direction of the
{ - board - } { + Oregon Department of Natural Resources + },
shall:
(a) Serve as community advisors to cooperatively develop
watershed enhancement projects with volunteers; and
(b) Cooperatively evaluate watershed enhancement projects with
those responsible for project implementation.
(2) Provide technical assistance to individuals responsible for
implementation of a watershed enhancement project.
(3) Work with the { - Oregon Watershed Enhancement Board - }
{ + Oregon Department of Natural Resources + } to coordinate the
implementation of enhancement projects with the activities of
other agencies, including but not limited to, those state and
federal agencies participating in coordinated resource management
planning.
{ +
REPEALS + }
SECTION 2161. ORS 197.030, 197.035, 197.075, 197.085, 197.095,
197.810, 197.815, 197.832, 273.071, 273.161, 273.165, 273.171,
273.175, 273.183, 390.005, 390.114, 390.117, 390.127, 390.131,
390.200, 390.231, 390.295, 496.080, 496.090, 496.108, 496.112,
496.116, 496.121, 496.300, 496.306, 496.311, 496.815, 508.326,
516.020, 516.080, 516.090, 516.120, 516.130, 516.133, 517.735,
522.275, 526.008, 526.009, 526.016, 526.031, 526.054, 526.600,
526.610, 526.615, 526.620, 526.625, 526.632, 526.650, 526.660,
526.670, 526.730, 536.022, 536.025, 536.026, 536.027, 536.032,
536.037, 536.039, 537.249, 537.895, 541.360, 541.362 and 541.363
are repealed.
{ +
UNIT CAPTIONS + }
SECTION 2162. { + The unit captions used in this 2011 Act are
provided only for the convenience of the reader and do not become
part of the statutory law of this state or express any
legislative intent in the enactment of this 2011 Act. + }
{ +
OPERATIVE DATE + }
SECTION 2163. { + (1) Sections 1 to 27, 412 to 421, 577 to
584, 902 to 911, 1091 to 1098a, 1113 to 1121, 1258 to 1268, 1750
to 1757, 1781 to 1790 and 2082 to 2090 of this 2011 Act, the
amendments to statutes by sections 28 to 411, 422 to 576, 585 to
901, 912 to 1090, 1099 to 1112, 1122 to 1257, 1269 to 1749k, 1758
to 1780, 1791 to 2081 and 2091 to 2160 of this 2011 Act and the
repeal of ORS 197.030, 197.035, 197.075, 197.085, 197.095,
197.810, 197.815, 197.832, 273.071, 273.161, 273.165, 273.171,
273.175, 273.183, 390.005, 390.114, 390.117, 390.127, 390.131,
390.200, 390.231, 390.295, 496.080, 496.090, 496.108, 496.112,
496.116, 496.121, 496.300, 496.306, 496.311, 496.815, 508.326,
516.020, 516.080, 516.090, 516.120, 516.130, 516.133, 517.735,
522.275, 526.008, 526.009, 526.016, 526.031, 526.054, 526.600,
526.610, 526.615, 526.620, 526.625, 526.632, 526.650, 526.660,
526.670, 526.730, 536.022, 536.025, 536.026, 536.027, 536.032,
536.037, 536.039, 537.249, 537.895, 541.360, 541.362 and 541.363
by section 2161 of this 2011 Act become operative on July 1,
2012.
(2) Notwithstanding subsection (1) of this section:
(a) The Governor may appoint the Director of the Oregon
Department of Natural Resources under section 2 of this 2011 Act
and the members of the Oregon Natural Resources Commission under
section 11 of this 2011 Act before the operative date specified
in subsection (1) of this section; and
(b) Once appointed, the director and the commission may adopt
rules before the operative date specified in subsection (1) of
this section for the purpose of administering sections 1 to 27,
412 to 421, 577 to 584, 902 to 911, 1091 to 1098a, 1113 to 1121,
1258 to 1268, 1750 to 1757, 1781 to 1790 and 2082 to 2090 of this
2011 Act, the amendments to statutes by sections 28 to 411, 422
to 576, 585 to 901, 912 to 1090, 1099 to 1112, 1122 to 1257, 1269
to 1749k, 1758 to 1781, 1791 to 2081 and 2091 to 2160 of this
2011 Act and the repeal of ORS 197.030, 197.035, 197.075,
197.085, 197.095, 197.810, 197.815, 197.832, 273.071, 273.161,
273.165, 273.171, 273.175, 273.183, 390.005, 390.114, 390.117,
390.127, 390.131, 390.200, 390.231, 390.295, 496.080, 496.090,
496.108, 496.112, 496.116, 496.121, 496.300, 496.306, 496.311,
496.815, 508.326, 516.020, 516.080, 516.090, 516.120, 516.130,
516.133, 517.735, 522.275, 526.008, 526.009, 526.016, 526.031,
526.054, 526.600, 526.610, 526.615, 526.620, 526.625, 526.632,
526.650, 526.660, 526.670, 526.730, 536.022, 536.025, 536.026,
536.027, 536.032, 536.037, 536.039, 537.249, 537.895, 541.360,
541.362 and 541.363 by section 2161 of this 2011 Act. + }
{ +
EMERGENCY CLAUSE + }
SECTION 2164. { + 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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