2017 ORS 215.418¹
Approval of development on wetlands
  • notice

(1) After the Department of State Lands has provided the county with a copy of the applicable portions of the Statewide Wetlands Inventory, the county shall provide notice to the department, the applicant and the owner of record, within five working days of the acceptance of any complete application for the following that are wholly or partially within areas identified as wetlands on the Statewide Wetlands Inventory:

(a) Subdivisions;

(b) Building permits for new structures;

(c) Other development permits and approvals that allow physical alteration of the land involving excavation and grading, including permits for removal or fill, or both, or development in floodplains and floodways;

(d) Conditional use permits and variances that involve physical alterations to the land or construction of new structures; and

(e) Planned unit development approvals.

(2) The provisions of subsection (1) of this section do not apply if a permit from the department has been issued for the proposed activity.

(3) Approval of any activity described in subsection (1) of this section shall include one of the following notice statements:

(a) Issuance of a permit under ORS 196.665 (Short title) and 196.800 (Definitions for ORS 196.600 to 196.905) to 196.900 (Schedule of civil penalties) by the department required for the project before any physical alteration takes place within the wetlands;

(b) Notice from the department that no permit is required; or

(c) Notice from the department that no permit is required until specific proposals to remove, fill or alter the wetlands are submitted.

(4) If the department fails to respond to any notice provided under subsection (1) of this section within 30 days of notice, the county approval may be issued with written notice to the applicant and the owner of record that the proposed action may require state or federal permits.

(5) The county may issue local approval for parcels identified as or including wetlands on the Statewide Wetlands Inventory upon providing to the applicant and the owner of record of the affected parcel a written notice of the possible presence of wetlands and the potential need for state and federal permits and providing the department with a copy of the notification of

comprehensive plan map or zoning map amendments for specific properties.

(6) Notice of activities authorized within an approved wetland conservation plan shall be provided to the department within five days following local approval.

(7) Failure by the county to provide notice as required in this section will not invalidate county approval. [1989 c.837 §29; 1991 c.763 §24]

Note: Sections 1 to 8, chapter 84, Oregon Laws 2016, provide:

Sec. 1. Sections 2 to 6 of this 2016 Act are added to and made a part of ORS chapter 215. [2016 c.84 §1]

Sec. 2. Legislative findings. The Legislative Assembly finds and declares that Tillamook County experiences unique challenges related to the creation, restoration or enhancement of wetlands on lands zoned for exclusive farm use, including regularly occurring and devastating flood events and landowner conflicts. It is therefore in the public interest to establish a pilot program in Tillamook County that applies conditional use review for the creation, restoration or enhancement of wetlands on lands zoned for exclusive farm use, and that incorporates a means for stakeholders to engage in a collaborative process for ensuring the protection and enhancement of agricultural land uses and wetlands. [2016 c.84 §2]

Sec. 3. Definitions. As used in sections 2 to 6 of this 2016 Act:

(1) “Mitigation bank” has the meaning given that term in ORS 196.600 (Definitions for ORS 196.600 to 196.655).

(2) “Permit” has the meaning given that term in ORS 215.402 (Definitions for ORS 215.402 to 215.438 and 215.700 to 215.780).

(3) “Reclamation” has the meaning given that term in ORS 517.750 (Definitions for ORS 517.702 to 517.989).

(4) “Riparian area” means a zone of transition from an aquatic ecosystem to a terrestrial ecosystem, dependent upon surface or subsurface water, in which existing or potential elements of the soil-vegetation complex are influenced by the surface or subsurface water that the zone is dependent upon.

(5) “Surface mining” has the meaning given that term in ORS 517.750 (Definitions for ORS 517.702 to 517.989).

(6) “Wetlands” has the meaning given that term in ORS 196.800 (Definitions for ORS 196.600 to 196.905). [2016 c.84 §3]

Sec. 4. Pilot program for reviewing creation, restoration or enhancement of wetlands in exclusive farm use zones. (1) Notwithstanding ORS 215.283 (Uses permitted in exclusive farm use zones in nonmarginal lands counties) (1)(m), the governing body of Tillamook County may, by ordinance or regulation, adopt a pilot program for reviewing, subject to ORS 215.296 (Standards for approval of certain uses in exclusive farm use zones), the creation, restoration or enhancement of wetlands in any area zoned for exclusive farm use.

(2) Notwithstanding ORS 215.296 (Standards for approval of certain uses in exclusive farm use zones) (10), ordinances or regulations adopted by the governing body under the pilot program may not establish standards in addition to the standards described in ORS 215.296 (Standards for approval of certain uses in exclusive farm use zones) (1) for approving the creation, restoration or enhancement of wetlands in areas zoned for exclusive farm use.

(3) Notwithstanding any contrary provision of ORS 215.416 (Permit application), the ordinances or regulations adopted as part of the pilot program shall provide for a mechanism by which, upon request by the applicant and prior to the approval or denial of a permit under the procedures required by ORS 215.402 (Definitions for ORS 215.402 to 215.438 and 215.700 to 215.780) to 215.438 (Transmission towers), the following parties may enter into a project-specific collaborative process for settling disputes concerning the application:

(a) The applicant;

(b) Any person whose use of the person’s property may be adversely affected by the proposed use;

(c) Any person who is entitled to notice under ORS 215.416 (Permit application) (11)(c);

(d) Representatives of any state or federal agency that is involved in the project for which the application for the use was submitted or that has expertise related to issues raised by the application or by comments received by the governing body; and

(e) For the purpose of assisting in the project-specific collaborative process, any person with technical expertise in:

(A) Creating, restoring or enhancing wetlands in Tillamook County;

(B) Creating, restoring or enhancing wetlands in areas with site characteristics similar to those identified in the application for the use; or

(C) The impacts of wetlands on agricultural operations.

(4) If an applicant requests to enter into a project-specific collaborative process adopted under subsection (3) of this section, the periods set forth in ORS 215.427 (Final action on permit or zone change application) (1) and (5) for the governing body of a county or its designee to take final action on the application shall be extended in the manner provided for in ORS 215.427 (Final action on permit or zone change application) (10).

(5) If the parties to a project-specific collaborative process requested under subsection (3) of this section agree to conditions that, if imposed on the proposed use, would satisfy the standards for approval set forth in ORS 215.296 (Standards for approval of certain uses in exclusive farm use zones) (1) in a manner that is acceptable to all parties, an approval of the application for the permit shall include the conditions agreed to by the parties.

(6) The governing body shall discontinue a project-specific collaborative process requested under subsection (3) of this section if, at any time during the process, the applicant requests that the governing body resume processing the permit application under the procedures required by ORS 215.402 (Definitions for ORS 215.402 to 215.438 and 215.700 to 215.780) to 215.438 (Transmission towers). [2016 c.84 §4]

Sec. 5. Planning process. (1) As part of a pilot program authorized by section 4 of this 2016 Act, the governing body of Tillamook County shall, subject to subsection (4) of this section, initiate a planning process to:

(a) Identify areas zoned for exclusive farm use that are suitable for future wetland creation, restoration or enhancement projects; and

(b) Designate areas zoned for exclusive farm use as priority areas for maintenance of agricultural use.

(2) The governing body shall engage stakeholders in the planning process, including, but not limited to, representatives of conservation interests and agricultural interests, state and federal agencies and Indian tribes.

(3) A planning process initiated under this section shall include consideration of:

(a) The historic location and quantity of wetlands within the county;

(b) The location and quantity of wetlands within the county at the time the planning process is initiated;

(c) Agricultural interests within the county, and the land use patterns necessary for the stability of agricultural and associated farming practices;

(d) The amount and location of potential wetland projects that would provide the greatest benefits to fish recovery, fish and wildlife habitat, flood mitigation and other values;

(e) Locations where future wetland projects would be most likely to provide the greatest benefits to fish recovery, fish and wildlife habitat, flood mitigation and other values while remaining compatible with the land use patterns necessary for the stability of agricultural and associated farming practices;

(f) Locations where the creation, restoration or enhancement of wetlands is likely to materially alter the stability of the agricultural land use patterns or cause a significant change to farming practice, alone or in combination with other wetlands in the area; and

(g) Locations or land-use arrangements, opportunities, conditions or approaches that could best enable benefits to fish recovery, fish and wildlife habitat, flood mitigation and other values in a manner that complements the land use patterns necessary for the stability of agricultural and associated farming practices.

(4) The governing body is not required to initiate the planning process provided for in this section if the governing body determines that adequate funding, which may include funding from any combination of local, state, federal or other sources, is not reasonably available.

(5) If a plan developed under this section is acknowledged pursuant to ORS 197.625 (Acknowledgment of comprehensive plan or land use regulation changes), the governing body may, by ordinance, adopt a process for denying permits or streamlining the permitting process for permit applications subject to the pilot program under section 4 of this 2016 Act. Ordinances adopted under this section must provide for a process that is consistent with the priorities identified in the plan. [2016 c.84 §5]

Sec. 6. Applicability of pilot program provisions. Sections 4 and 5 of this 2016 Act and ordinances and regulations adopted pursuant to sections 4 and 5 of this 2016 Act do not apply to the creation, restoration or enhancement of wetlands:

(1) For purposes related to a mitigation bank;

(2) For reclamation of lands affected by surface mining;

(3) If the wetlands are created, restored or enhanced for the purpose of meeting conditions necessary to comply with a National Pollutant Discharge Elimination System permit or water pollution control facility permit issued by the Department of Environmental Quality pursuant to ORS 468B.050 (Water quality permit);

(4) For which construction had commenced, or required permits had been issued, prior to the adoption of ordinances or regulations by the governing body of Tillamook County under section 4 of this 2016 Act; and

(5) If the creation, restoration or enhancement of the wetlands only involves planting vegetation in a wetland or riparian area. [2016 c.84 §6]

Sec. 7. Reporting requirements. (1) The governing body of Tillamook County shall provide for the production and filing of a report on the progress of a pilot program adopted under section 4 of this 2016 Act in the manner provided in ORS 192.245 (Form of report to legislature), to the interim committees of the Legislative Assembly related to environment and natural resources no later than September 15 of each odd-numbered year following the effective date of this 2016 Act [January 1, 2017], until and including September 15, 2025.

(2) In developing a report required by this section, the governing body must consult with stakeholders including, but not limited to, representatives of conservation interests and agricultural interests, state and federal agencies and Indian tribes.

(3) A report required by this section must include, but need not be limited to:

(a) Information on whether and to what extent the governing body has taken action as provided for in sections 4 and 5 of this 2016 Act and the form of the action taken;

(b) The number of permit applications received under the pilot program adopted under section 4 of this 2016 Act, the number of applicants that have requested entering into a project-specific collaborative process to settle disputes concerning their applications and the disposition of applications received under the pilot program; and

(c) Any significant successes, challenges or recommendations for legislation related to the pilot program.

(4) The report that is required to be filed under this section no later than September 15, 2025, shall include information detailing the success of the pilot program and recommendations on whether the pilot program should be made permanent. [2016 c.84 §7]

Sec. 8. Sections 2 to 7 of this 2016 Act are repealed on January 2, 2027. [2016 c.84 §8]

Notes of Decisions

Peti­tioner who at­tempted to ap­peal county planning director’s decision to county planning com­mis­sion, where no local ap­peal was provided in county ordinance, could not challenge pro­ce­dures or merits of director’s decision in ap­peal to LUBA from com­mis­sioner’s refusal to consider matter, after failing to bring direct timely ap­peal to LUBA from first decision. Smith v. Douglas County, 98 Or App 379, 780 P2d 232 (1989), Sup Ct review denied

Law Review Cita­tions

10 WLJ 395 (1974)

Chapter 215

Notes of Decisions

Published notice is adequate if prop­erty owners can reasonably ascertain that prop­erty in which they hold interest may be affected. Clackamas County v. Emmert, 14 Or App 493, 513 P2d 532 (1973), Sup Ct review denied

Statutory scheme es­tab­lishing LCDC and granting it authority to es­tab­lish state-wide land use planning goals does not unconstitu­tionally delegate legislative power where both standards (under this chapter) and safeguards ([former] ORS 197.310) exist. Meyer v. Lord, 37 Or App 59, 586 P2d 367 (1978)

Where county had not yet adopted comprehensive plan but had zoned certain por­tions “primarily agricultural,” county had not enacted adequate interim measures to protect its agricultural land until exclusive farm use zoning was completed. Columbia County v. LCDC, 44 Or App 749, 606 P2d 1184 (1980)

Atty. Gen. Opinions

Fasano v. Bd. of County Commrs., applica­tion to county governing bodies and planning com­mis­sions, (1974) Vol 36, p 960; binding effect on govern­mental agencies of the adop­tion of interim Willamette River Greenway boundaries, (1975) Vol 37, p 894

Law Review Cita­tions

36 EL 25 (2006)

1 Legislative Counsel Committee, CHAPTER 215—County Planning; Zoning; Housing Codes, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors215.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 215, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano215.­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.