ORS 196.921
Applicability

  • rules

(1)

Nothing in ORS 196.600 (Definitions for ORS 196.600 to 196.655) to 196.921 (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 196.921 (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 196.921) 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 196.921) 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 196.921) 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 196.921) 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 196.921) 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 196.921) 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 196.921) 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 196.921 (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 196.921) 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 196.921) 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)

Unless otherwise provided in a proposed order or in a final order issued in a contested case, nothing in ORS 196.800 (Definitions for ORS 196.600 to 196.921) to 196.900 (Schedule of civil penalties) applies to removal or filling, or both, originally intended or subsequently used for the establishment, repair, restoration, resumption or replacement of the following uses, if the use was established on or before January 1, 2017, on lands zoned for exclusive farm use, forest use or mixed farm and forest use:

(a)

A dwelling:

(A)

Described in ORS 215.213 (Uses permitted in exclusive farm use zones in counties that adopted marginal lands system prior to 1993) (1) or (3) or 215.283 (Uses permitted in exclusive farm use zones in nonmarginal lands counties) (1);

(B)

Established subject to county approval under ORS 215.402 (Definitions for ORS 215.402 to 215.438 and 215.700 to 215.780) to 215.438 (Transmission towers); or

(C)

Lawfully established on or before December 31, 1973;

(b)

An agricultural building as defined in ORS 455.315 (Exemption of agricultural buildings, agricultural grading, equine facilities and dog training facilities); or

(c)

Activities that:

(A)

Are associated with a dwelling or agricultural building described in this subsection;

(B)

Have received county approval, if necessary, under ORS 215.402 (Definitions for ORS 215.402 to 215.438 and 215.700 to 215.780) to 215.438 (Transmission towers); and

(C)

Are located on the same lot or parcel as the dwelling or agricultural building.

(15)

Nothing in ORS 196.800 (Definitions for ORS 196.600 to 196.921) to 196.921 (Applicability) applies to removal or filling, or both, as part of a voluntary project for stream restoration and habitat improvement authorized by the State Department of Fish and Wildlife under ORS 496.266 (Environmental restoration weirs).

(16)

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.

(c)

“Replacement” means the construction of a new structure that is substantially similar in size, sited in a substantially similar location and constructed in place of a previously existing structure. [Formerly 196.905; 2021 c.63 §4]
Note: Operation of the amendments to 196.921 (Applicability) (formerly 196.905) 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 (second note under 196.800 (Definitions for ORS 196.600 to 196.921)). 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, section 4, chapter 406, Oregon Laws 2011, section 2, chapter 428, Oregon Laws 2017, and section 5, chapter 63, Oregon Laws 2021, is set forth for the user’s convenience.
196.921 (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 196.921 (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)

Intentionally left blank —Ed.

(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 196.921 (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 196.921) 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 196.921) 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 196.921) 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 196.921) 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 196.921) 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 196.921) 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 196.921) 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 196.921) 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 196.921 (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 196.921) 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 196.921) 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)

Unless otherwise provided in a proposed order or in a final order issued in a contested case, nothing in ORS 196.800 (Definitions for ORS 196.600 to 196.921) to 196.900 (Schedule of civil penalties) applies to removal or filling, or both, originally intended or subsequently used for the establishment, repair, restoration, resumption or replacement of the following uses, if the use was established on or before January 1, 2017, on lands zoned for exclusive farm use, forest use or mixed farm and forest use:

(a)

A dwelling:

(A)

Described in ORS 215.213 (Uses permitted in exclusive farm use zones in counties that adopted marginal lands system prior to 1993) (1) or (3) or 215.283 (Uses permitted in exclusive farm use zones in nonmarginal lands counties) (1);

(B)

Established subject to county approval under ORS 215.402 (Definitions for ORS 215.402 to 215.438 and 215.700 to 215.780) to 215.438 (Transmission towers); or

(C)

Lawfully established on or before December 31, 1973;

(b)

An agricultural building as defined in ORS 455.315 (Exemption of agricultural buildings, agricultural grading, equine facilities and dog training facilities); or

(c)

Activities that:

(A)

Are associated with a dwelling or agricultural building described in this subsection;

(B)

Have received county approval, if necessary, under ORS 215.402 (Definitions for ORS 215.402 to 215.438 and 215.700 to 215.780) to 215.438 (Transmission towers); and

(C)

Are located on the same lot or parcel as the dwelling or agricultural building.

(16)

Nothing in ORS 196.800 (Definitions for ORS 196.600 to 196.921) to 196.921 (Applicability) applies to removal or filling, or both, as part of a voluntary project for stream restoration and habitat improvement authorized by the State Department of Fish and Wildlife under ORS 496.266 (Environmental restoration weirs).

(17)

As used in this section:

(a)

Intentionally left blank —Ed.

(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)

“Replacement” means the construction of a new structure that is substantially similar in size, sited in a substantially similar location and constructed in place of a previously existing structure.

(e)

“Seeding” means the sowing of seed or placement of seedlings to produce crops or other agricultural products.
(Monitoring; Education; Reports)

Source: Section 196.921 — Applicability; rules, https://www.­oregonlegislature.­gov/bills_laws/ors/ors196.­html.

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

196.105
Definitions for ORS 196.105 to 196.125
196.107
Legislative findings on management plan
196.109
Effect of revision of urban area boundaries within scenic area on management plan
196.110
Land use regulation in Columbia River Gorge National Scenic Area
196.115
Appeal from decision of Columbia River Gorge Commission or county
196.120
Exercise of eminent domain
196.125
Buffer by regulation around Columbia River Gorge National Scenic Area prohibited
196.150
Compact provisions
196.155
Authority for state officers and agencies to carry out duties under compact
196.160
Membership on Columbia River Gorge Commission
196.165
Status of commission employees for purposes of certain benefits
196.175
Pacific Ocean Resources Compact ratified
196.180
Compact provisions
196.185
Representation on compact
196.200
Definitions for ORS 196.200 to 196.240 and 196.993
196.205
Establishment of Willamette Falls Locks Authority as independent public corporation
196.210
Membership of authority
196.215
Executive director
196.220
Powers and duties of authority
196.225
Creation of tax-exempt entity by authority
196.230
Revenue bonds issued by authority
196.235
Financing agreements
196.240
Audits
196.405
Definitions for ORS 196.405 to 196.515
196.407
Policy
196.408
Duties of state agencies
196.410
Legislative findings for offshore oil and gas leasing
196.415
Legislative findings for ocean resources management
196.420
Policy
196.425
Oregon Ocean Resources Management Program
196.435
Primary agency for certain federal purposes
196.438
Ocean Policy Advisory Council
196.443
Duties of council
196.448
Member compensation
196.451
Technical advisory committee
196.453
Project review panels
196.455
Coordination with federal programs
196.465
Compatibility of acknowledged comprehensive plans
196.471
Territorial Sea Plan review requirements
196.485
State agency coordination requirements
196.515
Short title
196.540
Marine reserves
196.542
Limitation on ability of State Fish and Wildlife Commission to adopt prohibitions on fishing by rule
196.545
Work plan
196.550
Funding
196.555
Reporting
196.565
Oregon Ocean Science Trust
196.566
Trust duties
196.567
Oregon Ocean Science Fund
196.568
Reimbursement from fund
196.569
Report
196.570
Agreements between Oregon Ocean Science Trust and private organizations
196.571
Policy
196.572
Oregon Coordinating Council on Ocean Acidification and Hypoxia
196.573
Council duties
196.575
Authorization to obtain federal oceanographic data
196.580
Liaison program duties
196.583
Requirement to share geological data regarding territorial sea floor
196.600
Definitions for ORS 196.600 to 196.655
196.605
Purpose
196.610
Powers of Director of Department of State Lands
196.615
Program for mitigation banks
196.620
Resource values and credits for mitigation banks
196.623
Watershed enhancement project as mitigation bank
196.625
Fill and removal activities in mitigation banks
196.630
Rules
196.635
Director to consult and cooperate with other agencies and interested parties
196.640
Oregon Removal-Fill Mitigation Fund
196.643
Payments to comply with permit condition, authorization or resolution of violation
196.645
Sources of fund
196.650
Use of fund
196.655
Report on Oregon Removal-Fill Mitigation Fund
196.660
Effect of ORS 196.600 to 196.655
196.665
Short title
196.668
Legislative findings
196.672
Policy
196.674
Statewide Wetlands Inventory
196.676
Response to notices from local governments
196.678
Wetland conservation plans
196.681
Duties of department
196.682
Permits required for removal or fill
196.684
Amendment of plans
196.686
Acknowledged estuary management plans
196.687
Regulation of alteration or fill of artificially created wetlands
196.688
Public information program
196.692
Rules
196.795
Streamlining process for administering state removal or fill permits
196.800
Definitions for ORS 196.600 to 196.921
196.805
Policy
196.810
Permit for removal of material from or fill of waters
196.812
Large woody debris
196.815
Application for permit
196.816
General permits allowing removal of certain amount of material for maintaining drainage
196.817
General permits
196.818
Wetland delineation reports
196.820
Prohibition against issuance of permits to fill Smith Lake or Bybee Lake
196.825
Criteria for issuance of permit
196.830
Estuarine resource replacement as condition for fill or removal from estuary
196.835
Hearing regarding issuance of permit
196.845
Investigations and surveys
196.850
Waiving permit requirement in certain cases
196.855
Noncomplying removal of material or filling as public nuisance
196.860
Enforcement powers of director
196.865
Revocation, suspension or refusal to renew permit
196.870
Abatement proceedings
196.875
Double and treble damages for destruction of public right of navigation, fishery or recreation
196.880
Fill under permit presumed not to affect public rights
196.885
Annual report of fill and removal activities
196.890
Civil penalties
196.895
Imposition of civil penalties
196.900
Schedule of civil penalties
196.906
Legislative findings and declarations
196.909
Definitions
196.911
Maintenance without permit
196.913
Prohibitions
196.915
State agencies’ review and responses to notice
196.917
Notice of violation
196.919
Memoranda of understanding
196.921
Applicability
196.931
Monitoring fill and removal activities
196.990
Penalties for unpermitted removal from or filling of waters
196.993
Penalties for unauthorized use of Willamette Falls Locks
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