2015 ORS 196.905¹
Applicability
  • rules

(1) Nothing in ORS 196.600 (Definitions for ORS 196.600 to 196.655) to 196.905 (Applicability) applies to filling the beds of the waters of this state for the purpose of constructing, operating and maintaining dams or other diversions for which permits or certificates have been or shall be issued under ORS chapter 537 or 539 and for which preliminary permits or licenses have been or shall be issued under ORS 543.010 (Definitions for ORS 543.010 to 543.610) to 543.610 (Acquisition of project by state or municipality).

(2) Nothing in ORS 196.600 (Definitions for ORS 196.600 to 196.655) to 196.905 (Applicability) applies to removal of materials from the beds or banks or filling of the waters of a nonnavigable natural waterway, or any portion thereof, in this state, if:

(a) Such waterway or portion is situated within forestland; and

(b) Such removal or filling is directly connected with a forest management practice conducted in accordance with ORS 527.610 (Short title) to 527.770 (Good faith compliance with best management practices not violation of water quality standards), 527.990 (Criminal penalties) and 527.992 (Civil penalties).

(3) Nothing in ORS 196.800 (Definitions for ORS 196.600 to 196.905) to 196.900 (Schedule of civil penalties) applies to removal or filling, or both, on converted wetlands for normal farming and ranching activities such as plowing, grazing, seeding, planting, cultivating, conventional crop rotation or harvesting.

(4) Nothing in ORS 196.800 (Definitions for ORS 196.600 to 196.905) to 196.900 (Schedule of civil penalties) applies to removal or filling, or both, on lands zoned for exclusive farm use as described in ORS 215.203 (Zoning ordinances establishing exclusive farm use zones) for the following activities:

(a) Drainage or maintenance of farm or stock ponds; or

(b) Maintenance of farm roads in such a manner as to not significantly adversely affect wetlands or any other waters of this state.

(5) Nothing in ORS 196.800 (Definitions for ORS 196.600 to 196.905) to 196.900 (Schedule of civil penalties) applies to removal or filling, or both, for subsurface drainage by deep ripping, tiling or moling on converted wetlands that are zoned for exclusive farm use pursuant to ORS 215.203 (Zoning ordinances establishing exclusive farm use zones).

(6) Nothing in ORS 196.800 (Definitions for ORS 196.600 to 196.905) to 196.900 (Schedule of civil penalties) applies to removal or filling, or both, for any activity defined as a farm use in ORS 215.203 (Zoning ordinances establishing exclusive farm use zones), on lands zoned for exclusive farm use pursuant to ORS 215.203 (Zoning ordinances establishing exclusive farm use zones), if the lands are converted wetlands that are also certified as prior converted cropland by the Natural Resources Conservation Service of the United States Department of Agriculture, or its successor agency, so long as commercial agricultural production on the land has not been abandoned for five or more years.

(7) Nothing in ORS 196.800 (Definitions for ORS 196.600 to 196.905) to 196.900 (Schedule of civil penalties) applies to removal or filling, or both, for the reestablishment of crops under federal conservation reserve program provisions set forth in 16 U.S.C. 3831 as in effect on January 1, 2010.

(8) The exemptions in subsections (3) to (7) of this section do not apply to any fill or removal that involves changing an area of wetlands to a nonfarm use.

(9) Nothing in ORS 196.800 (Definitions for ORS 196.600 to 196.905) to 196.900 (Schedule of civil penalties) applies to removal or filling, or both, for the maintenance or reconstruction of structures such as dikes, dams, levees, groins, riprap, tidegates, drainage ditches, irrigation ditches and tile drain systems, provided that:

(a) The structure was serviceable within the past five years; and

(b) Such maintenance or reconstruction would not significantly adversely affect wetlands or other waters of this state to a greater extent than the wetlands or waters of this state were affected as a result of the original construction of those structures.

(10) Nothing in ORS 196.800 (Definitions for ORS 196.600 to 196.905) to 196.900 (Schedule of civil penalties) applies to removal or filling, or both, for maintenance, including emergency reconstruction of recently damaged parts, of currently serviceable roads or transportation structures such as groins and riprap protecting roads, causeways and bridge abutments or approaches.

(11) Nothing in ORS 196.600 (Definitions for ORS 196.600 to 196.655) to 196.905 (Applicability) applies to removal or filling, or both, within the beds or banks of any waters of this state conducted as part of a surface mining operation, that is the subject of a memorandum of agreement between the Department of State Lands and the State Department of Geology and Mineral Industries in which the State Department of Geology and Mineral Industries is assigned sole responsibility for permitting as described in ORS 517.797 (Memorandum of agreement with Department of State Lands regarding permitting).

(12) The Department of State Lands may adopt a rule that exempts from the requirement to obtain a permit under ORS 196.800 (Definitions for ORS 196.600 to 196.905) to 196.900 (Schedule of civil penalties) voluntary habitat restoration projects that have only minimal adverse impact on waters of this state.

(13) Nothing in ORS 196.800 (Definitions for ORS 196.600 to 196.905) to 196.900 (Schedule of civil penalties) applies to removal or filling, or both, for a change in the point of diversion to withdraw surface water for beneficial use if the change in the point of diversion is necessitated by a change in the location of the surface water and authorized by the Water Resources Department.

(14) As used in this section:

(a) "Converted wetlands" means agriculturally managed wetlands that, on or before June 30, 1989, were brought into commercial agricultural production by diking, draining, leveling, filling or any similar hydrologic manipulation and by removal or manipulation of natural vegetation, and that are managed for commercial agricultural purposes.

(b) "Converted wetlands" does not include any stream, slough, ditched creek, spring, lake or any other waters of this state that are located within or adjacent to a converted wetland area. [Formerly 541.695 and then 196.770; 1999 c.610 §1; 2009 c.342 §3; 2011 c.16 §1; 2011 c.406 §3]

Note: Operation of the amendments to 196.905 (Applicability) by section 6, 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 13, chapter 253, Oregon Laws 2003, section 4, chapter 342, Oregon Laws 2009, section 2, chapter 16, Oregon Laws 2011, and section 4, chapter 406, Oregon Laws 2011, is set forth for the user’s convenience.

196.905 (Applicability). (1) Notwithstanding the exemptions in subsections (3) to (8) of this section, a permit under ORS 196.600 (Definitions for ORS 196.600 to 196.655) to 196.905 (Applicability) is required for any fill or removal of material in or from the waters of this state when:

(a) The fill or removal is a part of an activity whose purpose is to bring an area of state waters into a use to which it was not previously subject; and

(b)(A) The flow or circulation of the waters of this state may be impaired; or

(B) The reach of the waters may be reduced.

(2) Nothing in ORS 196.600 (Definitions for ORS 196.600 to 196.655) to 196.905 (Applicability) applies to removal of materials from the beds or banks or filling of the waters of a nonnavigable natural waterway, or any portion thereof, in this state, if:

(a) Such waterway or portion is situated within forestland; and

(b) Such removal or filling is directly connected with a forest management practice conducted in accordance with ORS 527.610 (Short title) to 527.770 (Good faith compliance with best management practices not violation of water quality standards), 527.990 (Criminal penalties) and 527.992 (Civil penalties).

(3) Nothing in ORS 196.800 (Definitions for ORS 196.600 to 196.905) to 196.900 (Schedule of civil penalties) applies to removal or filling, or both, on converted wetlands for normal farming and ranching activities such as plowing, grazing, seeding, planting, cultivating, conventional crop rotation or harvesting.

(4) Nothing in ORS 196.800 (Definitions for ORS 196.600 to 196.905) to 196.900 (Schedule of civil penalties) applies to removal or filling, or both, on lands zoned for exclusive farm use as described in ORS 215.203 (Zoning ordinances establishing exclusive farm use zones) for the following activities:

(a) Drainage or maintenance of farm or stock ponds; or

(b) Maintenance of farm roads, provided that:

(A) The farm roads are constructed and maintained in accordance with construction practices designed to minimize any adverse effects to the aquatic environment;

(B) Borrow material for farm road maintenance does not come from waters of this state unless authorized by the Department of State Lands; and

(C) Maintenance activities are confined to the scope of construction for the original project.

(5) Nothing in ORS 196.800 (Definitions for ORS 196.600 to 196.905) to 196.900 (Schedule of civil penalties) applies to removal or filling, or both, for any activity defined as a farm use in ORS 215.203 (Zoning ordinances establishing exclusive farm use zones), on lands zoned for exclusive farm use pursuant to ORS 215.203 (Zoning ordinances establishing exclusive farm use zones), if the lands are converted wetlands that are also certified as prior converted cropland by the Natural Resources Conservation Service of the United States Department of Agriculture, or its successor agency, so long as commercial agricultural production on the land has not been abandoned for five or more years.

(6) Nothing in ORS 196.800 (Definitions for ORS 196.600 to 196.905) to 196.900 (Schedule of civil penalties) applies to removal or filling, or both, for the reestablishment of crops under federal conservation reserve program provisions set forth in 16 U.S.C. 3831 as in effect on January 1, 2010.

(7) The exemptions in subsections (3) to (6) of this section do not apply to any fill or removal that involves changing an area of wetlands or converted wetlands to a nonfarm use.

(8) Nothing in ORS 196.800 (Definitions for ORS 196.600 to 196.905) to 196.900 (Schedule of civil penalties) applies to removal or filling, or both, for the maintenance or reconstruction of structures such as dikes, dams, levees, groins, riprap, tidegates, drainage ditches, irrigation ditches and tile drain systems, provided that:

(a) The structure was serviceable within the past five years; and

(b) Such maintenance or reconstruction would not significantly adversely affect wetlands or other waters of this state to a greater extent than the wetlands or waters of this state were affected as a result of the original construction of those structures.

(9) Nothing in ORS 196.800 (Definitions for ORS 196.600 to 196.905) to 196.900 (Schedule of civil penalties) applies to removal or filling, or both, for temporary dams constructed for crop or pasture irrigation purposes that are less than 50 cubic yards, provided the following conditions are satisfied:

(a) The removal or filling is conducted during periods that minimize adverse effects to fish and wildlife in accordance with guidance provided by the State Department of Fish and Wildlife;

(b) The removal or filling does not jeopardize a threatened or endangered species or adversely modify or destroy the habitat of a threatened or endangered species listed under federal or state law; and

(c) Temporary fills are removed in their entirety and the area is restored to its approximate original elevation.

(10) Nothing in ORS 196.800 (Definitions for ORS 196.600 to 196.905) to 196.900 (Schedule of civil penalties) applies to removal or filling, or both, for maintenance, including emergency reconstruction of recently damaged parts, of currently serviceable roads or transportation structures such as groins and riprap protecting roads, causeways and bridge abutments or approaches.

(11) Nothing in ORS 196.800 (Definitions for ORS 196.600 to 196.905) to 196.900 (Schedule of civil penalties) applies to removal or filling, or both, for the maintenance of access roads constructed to move mining equipment, subject to the following conditions:

(a) The access roads are constructed and maintained in accordance with construction practices that minimize adverse effects to the aquatic environment;

(b) Borrow material for access road maintenance does not come from waters of this state unless authorized by the Department of State Lands; and

(c) Maintenance activities are confined to the scope of construction for the original project.

(12) Nothing in ORS 196.600 (Definitions for ORS 196.600 to 196.655) to 196.905 (Applicability) applies to removal or filling, or both, within the beds or banks of any waters of this state conducted as part of a surface mining operation that is the subject of a memorandum of agreement between the Department of State Lands and the State Department of Geology and Mineral Industries in which the State Department of Geology and Mineral Industries is assigned sole responsibility for permitting as described in ORS 517.797 (Memorandum of agreement with Department of State Lands regarding permitting).

(13) The department may adopt a rule that exempts from the requirement to obtain a permit under ORS 196.800 (Definitions for ORS 196.600 to 196.905) to 196.900 (Schedule of civil penalties) voluntary habitat restoration projects that have only minimal adverse impact on waters of this state.

(14) Nothing in ORS 196.800 (Definitions for ORS 196.600 to 196.905) to 196.900 (Schedule of civil penalties) applies to removal or filling, or both, for a change in the point of diversion to withdraw surface water for beneficial use if the change in the point of diversion is necessitated by a change in the location of the surface water and authorized by the Water Resources Department.

(15) As used in this section:

(a)(A) "Converted wetlands" means agriculturally managed wetlands that, on or before June 30, 1989, were brought into commercial agricultural production by diking, draining, leveling, filling or any similar hydrologic manipulation and by removal or manipulation of natural vegetation, and that are managed for commercial agricultural purposes.

(B) "Converted wetlands" does not include any stream, slough, ditched creek, spring, lake or any other waters of this state that are located within or adjacent to a converted wetland area.

(b) "Harvesting" means physically removing crops or other agricultural products.

(c) "Plowing" includes all forms of primary tillage, including moldboard, chisel or wide-blade plowing, discing, harrowing or similar means of breaking up, cutting, turning over or stirring soil to prepare it for planting crops or other agricultural products. "Plowing" does not include:

(A) The redistribution of soil, rock, sand or other surface materials in a manner that changes areas of waters of this state into dry land; or

(B) Rock crushing activities that result in the loss of natural drainage characteristics, the reduction of water storage and recharge capability, or the overburdening of natural water filtration capacity.

(d) "Seeding" means the sowing of seed or placement of seedlings to produce crops or other agricultural products.

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

Notes of Decisions

"Maintenance" of farm road includes addi­tional filling necessary to restore recently lost func­tion of existent road, whether or not road is in serviceable condi­tion at time of work. Owen v. Division of State Lands, 189 Or App 466, 76 P3d 158 (2003)

Both listed ac­tivity and corresponding removal or filling must occur on "converted wetlands" or "exclusive farm use zoned lands." Bridgeview Vineyards, Inc. v. State Land Board, 211 Or App 251, 154 P3d 734 (2007), Sup Ct review denied

"Structure" means wa­terway that is excavated or designed to remove wa­ter, not wa­terway that is naturally created. Gienger v. Depart­ment of State Lands, 230 Or App 178, 214 P3d 75 (2009), Sup Ct review denied

(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.