ORS 196.810
Permit for removal of material from or fill of waters

  • rules

(1)

Intentionally left blank —Ed.

(a)

Except as otherwise specifically permitted under ORS 196.600 (Definitions for ORS 196.600 to 196.655) to 196.921 (Applicability), a person may not remove any material from the beds or banks of any waters of this state or fill any waters of this state without a permit issued under authority of the Director of the Department of State Lands, or in a manner contrary to the conditions set out in the permit, or in a manner contrary to the conditions set out in an order approving a wetland conservation plan.

(b)

Notwithstanding the permit requirements of this section and notwithstanding the provisions of ORS 196.800 (Definitions for ORS 196.600 to 196.921) (3) and (13), if any removal or fill activity is proposed in essential indigenous anadromous salmonid habitat, except for those activities customarily associated with agriculture, a permit is required. “Essential indigenous anadromous salmonid habitat” as defined under this section shall be further defined and designated by rule by the Department of State Lands in consultation with the State Department of Fish and Wildlife and in consultation with other affected parties.

(c)

A person is not required to obtain a permit under paragraph (b) of this subsection for prospecting or other nonmotorized activities resulting in the removal from or fill of less than one 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 (Screening or by-pass devices for water diversions), 498.316 (Exemption from screening or by-pass devices), 498.326 (Department guidelines for screening and by-pass projects) or 509.600 (Destroying, injuring or taking fish near fishway) to 509.645 (Filing protest with commission).

(e)

Intentionally left blank —Ed.

(A)

Notwithstanding the permit requirements of this section and notwithstanding the provisions of ORS 196.800 (Definitions for ORS 196.600 to 196.921) (3) and (13), if any removal or fill activity is proposed in Oregon’s territorial sea that is related to an ocean renewable energy facility as defined in ORS 274.870 (Definitions for ORS 274.870 to 274.879), a permit is required.

(B)

An application for a permit related to an ocean renewable energy facility in the territorial sea must include all of the information required by that part of the Territorial Sea Plan that addresses the development of ocean renewable energy facilities in the territorial sea.

(C)

The Department of State Lands may not issue a removal or fill permit for an ocean renewable energy facility that does not comply with the criteria described in that part of the Territorial Sea Plan that addresses the development of ocean renewable energy facilities in the territorial sea.

(f)

Nothing in this section limits or otherwise changes the exemptions under ORS 196.921 (Applicability).

(g)

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 (“Public body” defined), may not issue a lease or permit contrary or in opposition to the conditions set out in the permit issued under ORS 196.600 (Definitions for ORS 196.600 to 196.655) to 196.921 (Applicability).

(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 (“Public body” defined), 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 (Definitions for ORS 196.600 to 196.655) to 196.921 (Applicability).

(4)

Notwithstanding subsection (1) of this section, the Department of State Lands may issue, orally or in writing, an emergency authorization to a person for the removal of material from the beds or banks or filling of any waters of this state in an emergency, for the purpose of making repairs or for the purpose of preventing irreparable harm, injury or damage to persons or property. The emergency authorization issued under this subsection:

(a)

Shall contain conditions of operation that the department determines are necessary to minimize impacts to water resources or adjoining properties.

(b)

Shall be based, whenever practicable, on the recommendations contained in an on-site evaluation by an employee or representative of the department.

(c)

If issued orally, shall be confirmed in writing by the department within five days.

(d)

Does not relieve the person from payment of a fee calculated in the manner provided in ORS 196.815 (Application for permit). [Formerly 541.615 and then 196.680; 1993 c.765 §101; 1997 c.190 §1; 1997 c.508 §1; 2001 c.65 §1; 2001 c.923 §4; 2003 c.14 §96; 2003 c.738 §20; 2007 c.71 §63; 2007 c.625 §4; 2007 c.849 §14; 2013 c.198 §3; 2015 c.386 §10]
Note: Operation of the amendments to 196.810 (Permit for removal of material from or fill of waters) by section 2, chapter 516, Oregon Laws 2001, is dependent upon further approval by the Legislative Assembly. See section 11, chapter 516, Oregon Laws 2001, as amended by section 19, chapter 11, Oregon Laws 2009 (second note under 196.800 (Definitions for ORS 196.600 to 196.921)). The text that is operative after that approval, including amendments by section 97, chapter 14, Oregon Laws 2003, section 64, chapter 71, Oregon Laws 2007, section 5, chapter 625, Oregon Laws 2007, section 15, chapter 849, Oregon Laws 2007, and section 11, chapter 386, Oregon Laws 2015, is set forth for the user’s convenience.
196.810 (Permit for removal of material from or fill of waters). (1)(a) Except as otherwise specifically permitted under ORS 196.600 (Definitions for ORS 196.600 to 196.655) to 196.921 (Applicability), a person may not remove any material from the beds or banks of any waters of this state or fill any waters of this state without a permit issued under authority of the Director of the Department of State Lands, or in a manner contrary to the conditions set out in the permit, or in a manner contrary to the conditions set out in an order approving a wetland conservation plan.

(b)

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 (Screening or by-pass devices for water diversions), 498.316 (Exemption from screening or by-pass devices), 498.326 (Department guidelines for screening and by-pass projects) or 509.600 (Destroying, injuring or taking fish near fishway) to 509.645 (Filing protest with commission).

(d)

Intentionally left blank —Ed.

(A)

Notwithstanding the permit requirements of this section and notwithstanding the provisions of ORS 196.800 (Definitions for ORS 196.600 to 196.921) (3) and (13), if any removal or fill activity is proposed in Oregon’s territorial sea that is related to an ocean renewable energy facility as defined in ORS 274.870 (Definitions for ORS 274.870 to 274.879), a permit is required.

(B)

An application for a permit related to an ocean renewable energy facility in the territorial sea must include all of the information required by that part of the Territorial Sea Plan that addresses the development of ocean renewable energy facilities in the territorial sea.

(C)

The Department of State Lands may not issue a removal or fill permit for an ocean renewable energy facility that does not comply with the criteria described in that part of the Territorial Sea Plan that addresses the development of ocean renewable energy facilities in the territorial sea.

(e)

Nothing in this section limits or otherwise changes the exemptions under ORS 196.921 (Applicability).

(2)

A public body, as defined in ORS 174.109 (“Public body” defined), may not issue a lease or permit contrary or in opposition to the conditions set out in the permit issued under ORS 196.600 (Definitions for ORS 196.600 to 196.655) to 196.921 (Applicability).

(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 (“Public body” defined), 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 (Definitions for ORS 196.600 to 196.655) to 196.921 (Applicability).

(4)

Notwithstanding subsection (1) of this section, the Department of State Lands may issue, orally or in writing, an emergency authorization to a person for the removal of material from the beds or banks or filling of any waters of this state in an emergency, for the purpose of making repairs or for the purpose of preventing irreparable harm, injury or damage to persons or property. The emergency authorization issued under this subsection:

(a)

Shall contain conditions of operation that the department determines are necessary to minimize impacts to water resources or adjoining properties.

(b)

Shall be based, whenever practicable, on the recommendations contained in an on-site evaluation by an employee or representative of the department.

(c)

If issued orally, shall be confirmed in writing by the department within five days.

(d)

Does not relieve the person from payment of a fee calculated in the manner provided in ORS 196.815 (Application for permit).

(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.

Source: Section 196.810 — Permit for removal of material from or fill of waters; rules, https://www.­oregonlegislature.­gov/bills_laws/ors/ors196.­html.

Notes of Decisions

Complaint must allege the statutory amount of material filled or removed. State ex rel Cox v. Wolfe, 25 Or App 551, 549 P2d 1281 (1976)

Notwithstanding that mining claim was on Federal property, federal mining laws did not act to preempt state regulation pursuant to this section. State ex rel Cox v. Hibbard, 31 Or App 269, 570 P2d 1190 (1977)

Since this section does not clearly indicate legislative intent to dispense with culpable mental state requirement, offense was not violation under ORS 161.105. McNutt v. State of Oregon, 56 Or App 545, 642 P2d 692 (1982), aff’d 295 Or 580, 668 P2d 1201 (1983)

This statute, defining offense of removal of material from stream contrary to conditions of a permit, does not clearly indicate legislative intent to dispense with culpable mental state and may be upgraded from violation to misdemeanor if district attorney elects to plead and prove criminal negligence. McNutt v. State of Oregon, 56 Or App 545, 642 P2d 692 (1982), aff’d 295 Or 580, 668 P2d 1201 (1983)

Removal or fill of 50 cubic yards or more of material in connection with activities customarily associated with agriculture requires permit if removal or fill is in salmonid stream. Bridgeview Vineyards, Inc. v. State Land Board, 211 Or App 251, 154 P3d 734 (2007), Sup Ct review denied

Attorney General Opinions

Right of private owner and ports to fill tidelands as subject to public rights, (1971) Vol 35, p 844; fresh water wetland or marsh area as “waters of this state” requiring permit prior to any filling or removal of material, (1979) Vol 39, p 690; Division of State Lands’ authority to require lease or fill or removal permit for private company to dredge submerged offshore lands to harvest clams, (1980) Vol 40, p 35; Approval of projects located within scenic waterway and involving less than 50 cubic yards of material, (1982) Vol. 42, p 211

196.105
Definitions for ORS 196.105 to 196.125
196.107
Legislative findings on management plan
196.109
Effect of revision of urban area boundaries within scenic area on management plan
196.110
Land use regulation in Columbia River Gorge National Scenic Area
196.115
Appeal from decision of Columbia River Gorge Commission or county
196.120
Exercise of eminent domain
196.125
Buffer by regulation around Columbia River Gorge National Scenic Area prohibited
196.150
Compact provisions
196.155
Authority for state officers and agencies to carry out duties under compact
196.160
Membership on Columbia River Gorge Commission
196.165
Status of commission employees for purposes of certain benefits
196.175
Pacific Ocean Resources Compact ratified
196.180
Compact provisions
196.185
Representation on compact
196.200
Definitions for ORS 196.200 to 196.240 and 196.993
196.205
Establishment of Willamette Falls Locks Authority as independent public corporation
196.210
Membership of authority
196.215
Executive director
196.220
Powers and duties of authority
196.225
Creation of tax-exempt entity by authority
196.230
Revenue bonds issued by authority
196.235
Financing agreements
196.240
Audits
196.405
Definitions for ORS 196.405 to 196.515
196.407
Policy
196.408
Duties of state agencies
196.410
Legislative findings for offshore oil and gas leasing
196.415
Legislative findings for ocean resources management
196.420
Policy
196.425
Oregon Ocean Resources Management Program
196.435
Primary agency for certain federal purposes
196.438
Ocean Policy Advisory Council
196.443
Duties of council
196.448
Member compensation
196.451
Technical advisory committee
196.453
Project review panels
196.455
Coordination with federal programs
196.465
Compatibility of acknowledged comprehensive plans
196.471
Territorial Sea Plan review requirements
196.485
State agency coordination requirements
196.515
Short title
196.540
Marine reserves
196.542
Limitation on ability of State Fish and Wildlife Commission to adopt prohibitions on fishing by rule
196.545
Work plan
196.550
Funding
196.555
Reporting
196.565
Oregon Ocean Science Trust
196.566
Trust duties
196.567
Oregon Ocean Science Fund
196.568
Reimbursement from fund
196.569
Report
196.570
Agreements between Oregon Ocean Science Trust and private organizations
196.571
Policy
196.572
Oregon Coordinating Council on Ocean Acidification and Hypoxia
196.573
Council duties
196.575
Authorization to obtain federal oceanographic data
196.580
Liaison program duties
196.583
Requirement to share geological data regarding territorial sea floor
196.600
Definitions for ORS 196.600 to 196.655
196.605
Purpose
196.610
Powers of Director of Department of State Lands
196.615
Program for mitigation banks
196.620
Resource values and credits for mitigation banks
196.623
Watershed enhancement project as mitigation bank
196.625
Fill and removal activities in mitigation banks
196.630
Rules
196.635
Director to consult and cooperate with other agencies and interested parties
196.640
Oregon Removal-Fill Mitigation Fund
196.643
Payments to comply with permit condition, authorization or resolution of violation
196.645
Sources of fund
196.650
Use of fund
196.655
Report on Oregon Removal-Fill Mitigation Fund
196.660
Effect of ORS 196.600 to 196.655
196.665
Short title
196.668
Legislative findings
196.672
Policy
196.674
Statewide Wetlands Inventory
196.676
Response to notices from local governments
196.678
Wetland conservation plans
196.681
Duties of department
196.682
Permits required for removal or fill
196.684
Amendment of plans
196.686
Acknowledged estuary management plans
196.687
Regulation of alteration or fill of artificially created wetlands
196.688
Public information program
196.692
Rules
196.795
Streamlining process for administering state removal or fill permits
196.800
Definitions for ORS 196.600 to 196.921
196.805
Policy
196.810
Permit for removal of material from or fill of waters
196.812
Large woody debris
196.815
Application for permit
196.816
General permits allowing removal of certain amount of material for maintaining drainage
196.817
General permits
196.818
Wetland delineation reports
196.820
Prohibition against issuance of permits to fill Smith Lake or Bybee Lake
196.825
Criteria for issuance of permit
196.830
Estuarine resource replacement as condition for fill or removal from estuary
196.835
Hearing regarding issuance of permit
196.845
Investigations and surveys
196.850
Waiving permit requirement in certain cases
196.855
Noncomplying removal of material or filling as public nuisance
196.860
Enforcement powers of director
196.865
Revocation, suspension or refusal to renew permit
196.870
Abatement proceedings
196.875
Double and treble damages for destruction of public right of navigation, fishery or recreation
196.880
Fill under permit presumed not to affect public rights
196.885
Annual report of fill and removal activities
196.890
Civil penalties
196.895
Imposition of civil penalties
196.900
Schedule of civil penalties
196.906
Legislative findings and declarations
196.909
Definitions
196.911
Maintenance without permit
196.913
Prohibitions
196.915
State agencies’ review and responses to notice
196.917
Notice of violation
196.919
Memoranda of understanding
196.921
Applicability
196.931
Monitoring fill and removal activities
196.990
Penalties for unpermitted removal from or filling of waters
196.993
Penalties for unauthorized use of Willamette Falls Locks
Green check means up to date. Up to date