2015 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 landowner’s 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 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 (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 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 (Jurisdiction for review of contested cases).

(8) Except for a permit issued under the process set forth in ORS 517.952 (Definitions for ORS 517.952 to 517.989) to 517.989 (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;

(B) The applicant and the director agree to a longer time period; or

(C) The director determines that an extension is necessary to coordinate the issuance of a proprietary authorization decision for an ocean renewable energy facility under ORS 274.873 (Proprietary authorizations for ocean renewable energy facilities) and a removal or fill permit decision.

(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 local health authorities), 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; 2015 c.386 §13]

(formerly 541.625)

Notes of Decisions

Evidence, that known fishery values of submerged Columbia River land proposed for fill appeared to be greater than speculative economic benefits of proposed fill, was insufficient as matter of law to support issuance of permit for fill. Moe v. Division of State Lands, 31 Or App 3, 569 P2d 675 (1977)

Evidence was sufficient to support finding by Division of State Lands that public interest in best use of wa­ter resources was better served by retaining peti­tioner's salt marsh in unimproved state, rather than permitting peti­tioner to fill 32 acres of marsh in order to construct recrea­tional complex. Saxon v. Division of State Lands, 31 Or App 511, 570 P2d 1197 (1977)

This sec­tion, together with [former] ORS 541.610 and rules promulgated by Division of State Lands, es­tab­lished identifiable standards for determining best use of peti­tioner's land adjoining salt marsh. Saxon v. Division of State Lands, 31 Or App 511, 570 P2d 1197 (1977)

Division's rule that landfill projects are permissible only if for wa­ter-related purposes is consistent with legislative directive of this sec­tion that landfill projects may not "unreasonably interfere" with preserva­tion of wa­ters for naviga­tion, fishery and recrea­tional use. Morse v. Division of State Lands, 31 Or App 1309, 572 P2d 1075 (1977), Sup Ct review denied

Director of Division of State Lands lacked authority to issue estuarian land fill permit for purpose of extending municipal airport runway, in absence of finding that public need for airport enlarge­ment outweighed detri­ment to use of wa­ters for naviga­tion, fishing and recrea­tional purposes. Morse v. Oregon Division of State Lands, 285 Or 197, 590 P2d 709 (1979)

Where Director of Division of State Lands failed to make findings relating to public need for dike, order granting permit to maintain dike across tidal slough was reversed. 1000 Friends v. Div. of State Lands, 46 Or App 425, 611 P2d 1177 (1980), Sup Ct review denied

Statutory scheme does not require division to determine what is the best use in given instance; it does require that uses enumerated in [former] ORS 541.610 be considered and that division find that proposed removal is not inconsistent with any one or more of them. Kalmiopsis Audubon Soc. v. Division of State Lands, 66 Or App 810, 676 P2d 885 (1984)

Directive to consider alternatives to project for which fill or removal is proposed requires considera­tion of develop­ment facilitated by proposed fill or removal. Examilotis v. Depart­ment of State Lands, 239 Or App 522, 244 P3d 880 (2010)

Depart­ment of State Lands may consider only project impacts associated with applica­tion's fill and removal components. Examilotis v. Depart­ment of State Lands, 239 Or App 522, 244 P3d 880 (2010)

Atty. Gen. Opinions

Lessee filling tidelands as requiring a permit, public rights and condi­tions for issuance of permits, (1971) Vol 35, p 844

Law Review Cita­tions

4 EL 353-354 (1974)

(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 (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 196, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano196.­html (2015) (last ac­cessed Jul. 16, 2016).
 
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.