2011 ORS § 196.825¹
Criteria for issuance of permit
- • conditions
- • consultation with public bodies
- • hearing
- • appeal
(1) The Director of the Department of State Lands shall issue a permit applied for under ORS 196.815 (Application for permit) 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 (Definitions for ORS 196.600 to 196.655) to 196.905 (Applicability); and
(b) Would not unreasonably interfere with the paramount policy of this state to preserve the use of its waters for navigation, fishing and public recreation.
(2) If the director issues a permit applied for under ORS 196.815 (Application for permit) to a person that proposes a removal or fill activity for construction or maintenance of a linear facility, and if that person is not a landowner or a person authorized by a landowner to conduct the proposed removal or fill activity on a property, then the person may not conduct removal or fill activity on that property until the person obtains:
(a) The landowners consent;
(b) A right, title or interest with respect to the property that is sufficient to undertake the removal or fill activity; or
(c) A court order or judgment authorizing the use of the property.
(3) In determining whether to issue a permit, the director shall consider all of the following:
(a) The public need for the proposed fill or removal and the social, economic or other public benefits likely to result from the proposed fill or removal. When the applicant for a permit is a public body, the director may accept and rely upon the public bodys 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 (Definitions for ORS 196.600 to 196.905). In determining whether the applicant has provided all practicable mitigation, the director shall consider the findings regarding wetlands set forth in ORS 196.668 (Legislative findings) and whether the proposed mitigation advances the policy objectives for the protection of wetlands set forth in ORS 196.672 (Policy).
(4) The director may issue a permit for a project that results in a substantial fill in an estuary for a nonwater dependent use only if the project is for a public use and would satisfy a public need that outweighs harm to navigation, fishery and recreation and if the proposed fill meets all other criteria contained in ORS 196.600 (Definitions for ORS 196.600 to 196.655) to 196.905 (Applicability).
(5) If the director issues a permit, the director may impose such conditions as the director considers necessary to carry out the purposes of ORS 196.805 (Policy) and 196.830 (Estuarine resource replacement as condition for fill or removal from estuary) 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 (Public body defined), 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.
(6)(a) The director may request comment from interested parties and adjacent property owners on any application for a permit.
(b) The director shall furnish to any person, upon written request and at the expense of the person who requests the copy, a copy of any application for a permit or authorization under this section or ORS 196.850 (Waiving permit requirement in certain cases).
(c) For permit applications for a removal or fill activity for construction or maintenance of a linear facility that are deemed complete by the director, the director shall notify by first-class mail, electronic mail or electronic facsimile transmission all landowners whose land is identified in the permit application and all landowners whose land is adjacent to the property of a landowner whose land is identified in the permit application.
(7) 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 (Notice of right to hearing) to 183.430 (Hearing on refusal to renew license), 183.440 (Subpoenas in contested cases) to 183.460 (Examination of evidence by agency) and 183.470 (Orders in contested cases). 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 directors initial order. Appeals from the directors final order may be taken to the Court of Appeals in the manner provided by ORS 183.482 (Jurisdiction for review of contested cases).
(8) Except for a permit issued under the process set forth in ORS 517.952 (Definitions for ORS 517.702 to 517.989) to 517.989 (Statutes and rules applicable to consolidated application), the director shall:
(a) Determine whether an application is complete within 30 days from the date the Department of State Lands receives the application. If the director determines that an application is complete, the director shall distribute the application for comment pursuant to subsection (5) 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 (10)(b) of this section; or
(B) The applicant and the director agree to a longer time period.
(9) Permits issued under this section shall be in lieu of any permit or authorization that might be required for the same operation under ORS 164.775 (Deposit of trash within 100 yards of waters or in waters), 164.785 (Placing offensive substances in waters, on highways or other property), 468.020 (Rules and standards), 468.035 (Functions of department), 468.045 (Functions of director), 468.055 (Contracts with Oregon Health Authority), 468.060 (Enforcement of rules by health agencies), 468.110 (Appeal), 468.120 (Public hearings), 468B.005 (Definitions for water pollution control laws) to 468B.030 (Effluent limitations) and 468B.048 (Rules for standards of quality and purity) to 468B.085 (Depositing vehicles or manufactured structures into water prohibited), so long as:
(a) The operation is that for which the permit or authorization is issued; and
(b) The standards for granting the permit or authorization are substantially the same as those established pursuant to ORS 164.775 (Deposit of trash within 100 yards of waters or in waters), 164.785 (Placing offensive substances in waters, on highways or other property), 468.020 (Rules and standards), 468.035 (Functions of department), 468.045 (Functions of director), 468.055 (Contracts with Oregon Health Authority), 468.110 (Appeal), 468.120 (Public hearings), 468B.005 (Definitions for water pollution control laws) to 468B.030 (Effluent limitations) and 468B.048 (Rules for standards of quality and purity) to 468B.085 (Depositing vehicles or manufactured structures into water prohibited) to the extent they affect water quality.
(10)(a) Any public body, as defined in ORS 174.109 (Public body defined), 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 (5) of this section if the permit action requires certification under the Federal Water Pollution Control Act (P.L. 92-500), as amended.
(11) In determining whether to issue a permit, the director may consider only standards and criteria in effect on the date the director receives the completed application.
(12) As used in this section:
(a) Applicant means a landowner, a person authorized by a landowner to conduct a removal or fill activity or a person that proposes a removal or fill activity for construction or maintenance of a linear facility.
(b) Completed application means a signed permit application form that contains all necessary information for the director to determine whether to issue a permit, including:
(A) A map showing the project site with sufficient accuracy to easily locate the removal or fill site;
(B) A project plan showing the project site and proposed alterations;
(C) The fee required under ORS 196.815 (Application for permit);
(D) Any changes that may be made to the hydraulic characteristics of waters of this state and a plan to minimize or avoid any adverse effects of those changes;
(E) If the project may cause substantial adverse effects on aquatic life or aquatic habitat within this state, documentation of existing conditions and resources and identification of the potential impact if the project is completed;
(F) An analysis of alternatives that evaluates practicable methods to minimize and avoid impacts to waters of this state;
(G) If the project is to fill or remove material from wetlands, a wetlands mitigation plan; and
(H) Any other information that the director deems pertinent and necessary to make an informed decision on whether the application complies with the policy and standards set forth in this section.
(c) Linear facility includes any railway, highway, road, pipeline, water or sewer line, communication line, overhead or underground electrical transmission or distribution line or similar facility. [Formerly 541.625 and then 196.695; 1991 c.735 §25; 1993 c.741 §18; 1995 c.370 §1; 1995 c.472 §1; 2001 c.460 §2; 2001 c.516 §3; 2003 c.253 §§9,10; 2003 c.738 §§17a,18a; 2007 c.849 §§4,5; 2009 c.342 §2; 2009 c.343 §20; 2011 c.370 §1]