2017 ORS 196.810¹
Permit required to remove material from bed or banks of waters
  • status of permit
  • exceptions
  • rules

(1)(a) Except as otherwise specifically permitted under ORS 196.600 (Definitions for ORS 196.600 to 196.655) to 196.905 (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 196.905) (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)(A) Notwithstanding the permit requirements of this section and notwithstanding the provisions of ORS 196.800 (Definitions for ORS 196.600 to 196.905) (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 196.905 (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 196.905 (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 196.905 (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 required to remove material from bed or banks 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. 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 required to remove material from bed or banks of waters). (1)(a) Except as otherwise specifically permitted under ORS 196.600 (Definitions for ORS 196.600 to 196.655) to 196.905 (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)(A) Notwithstanding the permit requirements of this section and notwithstanding the provisions of ORS 196.800 (Definitions for ORS 196.600 to 196.905) (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 196.905 (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 196.905 (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 196.905 (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.

Note: See second note under 196.800 (Definitions for ORS 196.600 to 196.905).

(formerly 541.615)

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 (Culpability requirement inapplicable to certain violations and offenses). 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

Atty. Gen. 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

(formerly 541.605 to 541.695)

Notes of Decisions

These sec­tions, regulating landfills, are codifica­tion of common law public trust doctrine that public use of lands underlying navigable wa­ters may not be substantially modified except for wa­ter-related purposes. Morse v. Division of State Lands, 34 Or App 853, 581 P2d 520 (1978), aff’d 285 Or 197, 590 P2d 79 (1979)

Atty. Gen. Opinions

Right of private owner and ports to fill tidelands as subject to public rights, (1971) Vol 35, p 844; state’s authority to prevent or control removal by dredging of a privately owned island in a navigable river, (1972) Vol 36, p 285; authority of the legislature to extinguish public rights in navigable wa­ters and to charge a fee therefor, (1973) Vol 36, p 348; authority to issue permit for removal of ocean shore natural products from state recrea­tion areas, (1974) Vol 36, p 807; authority to pay for Removal and Fill Permit Program ad­min­is­tra­­tion out of Common School Fund, (1980) Vol 40, p 190

Law Review Cita­tions

4 EL 351-355 (1974); 10 EL 675 (1980); 61 OLR 523 (1982); 19 EL 637 (1989); 21 EL 152 (1991)

1 Legislative Counsel Committee, CHAPTER 196—Columbia River Gorge; Ocean Resource Planning; Wetlands; Removal and Fill, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors196.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 196, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano196.­html (2017) (last ac­cessed Mar. 30, 2018).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.