2017 ORS 196.850¹
Waiving permit requirement in certain cases
  • rules
  • notice
  • review
  • fees
  • disposition of fees

(1) Notwithstanding ORS 196.810 (Permit required to remove material from bed or banks of waters), the Department of State Lands may, by rule, grant general authorization for removal of material from the bed or banks of any waters of this state or the filling of any waters of this state without a permit from the department if the department finds that the activities subject to the general authorization:

(a) Are substantially similar in nature;

(b) Would cause only minimal individual and cumulative environmental impacts; and

(c) Would not result in long-term harm to water resources of the state.

(2) A general authorization may be granted on a statewide or other geographic basis.

(3) The department shall condition any general authorization upon actions necessary to minimize environmental impacts.

(4) The department shall provide notice of any proposed general authorization to affected federal and state agencies, local governments, tribal governments and the public. The notice shall include:

(a) A clear description of the proposal; and

(b) Draft findings and any proposed conditions pursuant to this section.

(5) Any person proposing to conduct an action under a general authorization shall:

(a) Notify the department in writing prior to conducting the action.

(b) Pay the applicable fee to the department as determined under subsection (9) of this section.

(6) The department shall amend or rescind any general authorization upon a determination that the activities conducted under the authorization have resulted in or would result in more than minimal environmental impacts or long-term harm to the water resources of this state.

(7) The department shall review each general authorization adopted pursuant to this section every five years. The review shall include public notice and opportunity for public hearing. After the review, the department may either modify, reissue or rescind the general authorization.

(8) In addition to the grounds for review set forth in ORS 183.400 (Judicial determination of validity of rule) (4), on judicial review of the validity of a rule adopted under this section, the rule shall be reviewable for substantial evidence in the rulemaking record. The record shall include copies of all documents before the agency relevant to the findings required by subsection (1) of this section.

(9) If the rule adopting a general authorization under this section is:

(a) For actions that result in moving less than 50 cubic yards of material, the department may not charge a fee for the general authorization.

(b) For actions that result in moving 50 or more cubic yards of material, the department may establish a fee for the general authorization. The fee may not exceed $250 and shall be based on the cost of processing the general authorization.

(10) The department shall credit any fee collected under this section to the Common School Fund for use by the department in administration of ORS 196.600 (Definitions for ORS 196.600 to 196.655) to 196.905 (Applicability). [1989 c.837 §9 (enacted in lieu of 541.640); renumbered 196.850 (Waiving permit requirement in certain cases) in 1989; 2003 c.253 §11; 2007 c.849 §6]

Note: Operation of the amendments to 196.850 (Waiving permit requirement in certain cases) by section 4, 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 12, chapter 253, Oregon Laws 2003, and section 7, chapter 849, Oregon Laws 2007, is set forth for the user’s convenience.

196.850 (Waiving permit requirement in certain cases). (1) Notwithstanding ORS 196.810 (Permit required to remove material from bed or banks of waters), the Department of State Lands may, by rule, grant general authorization for removal of material from the bed or banks of any waters of this state or the filling of any waters of this state without a permit from the department if the department finds that the activities subject to the general authorization:

(a) Are substantially similar in nature;

(b) Would cause only minimal individual and cumulative environmental impacts; and

(c) Would not result in long-term harm to water resources of the state.

(2) A general authorization may be granted on a statewide or other geographic basis.

(3) The department shall condition any general authorization upon actions necessary to minimize environmental impacts.

(4) The department shall provide notice of any proposed general authorization to affected federal and state agencies, local governments, tribal governments and the public. The notice shall include:

(a) A clear description of the proposal; and

(b) Draft findings and any proposed conditions pursuant to this section.

(5) Any person proposing to conduct an action under a general authorization shall:

(a) Notify the department in writing prior to conducting the action. The person may not commence the action until the person receives a letter of authorization from the department.

(b) Pay the applicable fee to the department as determined under subsection (10) of this section.

(6) The Director of the Department of State Lands shall waive the requirements of subsection (5) of this section if the director issues a general authorization and the authorized activity:

(a) Involves less than 50 cubic yards of material;

(b) Will be conducted during periods that minimize adverse effects to fish and wildlife in accordance with guidance provided by the State Department of Fish and Wildlife;

(c) Will not dam or divert a waterway in a manner that obstructs fish passage or vessel navigation; and

(d) Will not violate water quality standards as established by the Department of Environmental Quality.

(7) The Department of State Lands shall amend or rescind any general authorization upon a determination that the activities conducted under the authorization have resulted in or would result in more than minimal environmental impacts or long-term harm to the water resources of this state.

(8) The department shall review each general authorization adopted pursuant to this section every five years. The review shall include public notice and opportunity for public hearing. After the review, the department may either modify, reissue or rescind the general authorization.

(9) In addition to the grounds for review set forth in ORS 183.400 (Judicial determination of validity of rule) (4), on judicial review of the validity of a rule adopted under this section, the rule shall be reviewable for substantial evidence in the rulemaking record. The record shall include copies of all documents before the agency relevant to the findings required by subsection (1) of this section.

(10) If the rule adopting a general authorization under this section is:

(a) For actions that result in moving less than 50 cubic yards of material, the department may not charge a fee for the general authorization.

(b) For actions that result in moving 50 or more cubic yards of material, the department may establish a fee for the general authorization. The fee may not exceed $250 and shall be based on the cost of processing the general authorization.

(11) The department shall credit any fee collected under this section to the Common School Fund for use by the department in administration of ORS 196.600 (Definitions for ORS 196.600 to 196.655) to 196.905 (Applicability).

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

(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.