2017 ORS 196.860¹
Enforcement powers of director

(1) If the Director of the Department of State Lands determines that material is being removed from or filling is occurring in any of the waters of this state without a permit issued under ORS 196.825 (Criteria for issuance of permit), 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, the director may:

(a) Investigate, hold hearings, make orders and take action, as provided in ORS 196.600 (Definitions for ORS 196.600 to 196.655) to 196.905 (Applicability), as soon as possible.

(b) For the purpose of investigating conditions relating to the removal or filling, through the employees or the duly authorized representatives of the Department of State Lands, enter at reasonable times upon any private or public property.

(c) Conduct public hearings in accordance with ORS chapter 183.

(d) Publish findings and recommendations as they are developed relative to public policies and procedures necessary for the correction of conditions or violations of ORS 196.600 (Definitions for ORS 196.600 to 196.655) to 196.905 (Applicability).

(e) Give notice of any proposed order relating to a violation by personal service or by mailing the notice by registered or certified mail to the person affected. Any person aggrieved by a proposed order of the director may request a hearing within 20 days of the date of personal service or mailing of the notice. Hearings shall be conducted under the provisions of ORS chapter 183 applicable to contested cases, and judicial review of final orders shall be conducted in the Court of Appeals according to ORS 183.482 (Jurisdiction for review of contested cases). If no hearing is requested or if the party fails to appear, a final order shall be issued upon a prima facie case on the record of the agency.

(f) Take appropriate action for the enforcement of any rules or final orders. Any violation of ORS 196.600 (Definitions for ORS 196.600 to 196.655) to 196.905 (Applicability) or of any rule or final order of the director under ORS 196.600 (Definitions for ORS 196.600 to 196.655) to 196.905 (Applicability) may be enjoined in civil abatement proceedings brought in the name of the State of Oregon. In any such proceedings the director may seek and the court may award a sum of money sufficient to compensate the public for any destruction or infringement of any public right of navigation, fishery or recreation resulting from the violation. Proceedings thus brought by the director shall set forth if applicable the dates of notice and hearing and the specific rule or order of the director, together with the facts of noncompliance, the facts giving rise to the public nuisance, and a statement of the damages to any public right of navigation, fishery or recreation, if any, resulting from the violation.

(2)(a) In addition to the administrative action the director may take under subsection (1) of this section, the director may enter an order requiring any person to cease and desist from any violation if the director determines that the violation presents an imminent and substantial risk of injury, loss or damage to water resources.

(b) An order under this subsection:

(A) May be entered without prior notice or hearing.

(B) Shall be served upon the person by personal service or by registered or certified mail.

(C) Shall state that a hearing will be held on the order if a written request for hearing is filed by the person subject to the order within 10 days after receipt of the order.

(D) May not be stayed during the pendency of a hearing conducted under paragraph (c) of this subsection.

(c) If a person subject to an order under this subsection files a timely demand for hearing, the director shall hold a contested case hearing according to the applicable provisions of ORS chapter 183. If the person fails to request a hearing, the order shall be entered as a final order upon prima facie case made on the record of the agency.

(d) Neither the director nor any duly authorized representative of the department shall be liable for any damages a person may sustain as a result of a cease and desist order issued under this subsection.

(e) The state and local police shall cooperate in the enforcement of any order issued under this subsection and shall require no further authority or warrant in executing or enforcing the order. If any person fails to comply with an order issued under this subsection, the circuit court of the county in which the violation occurred or is threatened shall compel compliance with the director’s order in the same manner as with an order of that court.

(3) As used in this section, “violation” means removing material from or placing fill in any of the waters of this state without a permit or in a manner contrary to the conditions set out in a permit issued under ORS 196.825 (Criteria for issuance of permit). [Formerly 541.650 and then 196.725; 2007 c.71 §66; 2007 c.849 §16]

(formerly 541.650)

Notes of Decisions

Tradi­tional rules of equity apply to court’s en­force­­ment powers under this sec­tion, so trial court may balance equities in fashioning its remedies. State ex rel Cox v. Davidson Ind., 291 Or 839, 635 P2d 630 (1981)

(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.