2017 ORS 196.830¹
Estuarine resource replacement as condition for fill or removal from estuary
  • considerations
  • other permit conditions

(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 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 (Criteria for issuance of permit). [Formerly 541.626 and then 196.700; 2005 c.22 §136]

(formerly 541.626)

Atty. Gen. Opinions

Applica­tion of mitiga­tion require­ments to filling posi­tions of McIntosh Slough, (1980) Vol 40, p 501

Law Review Cita­tions

16 WLR 367 (1979)

(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.