ORS 390.845
Administration of scenic waterways and related adjacent lands

  • limitations on use
  • condemnation
  • rules

(1)

Except as provided in ORS 390.835 (Highest and best use of waters within scenic waterways), scenic waterways shall be administered by the State Parks and Recreation Department, each in such manner as to protect and enhance the values which caused such scenic waterway to be included in the system. In such administration primary emphasis shall be given to protecting the aesthetic, scenic, fish and wildlife, scientific and recreation features, based on the special attributes of each area.

(2)

After consultation with the State Board of Forestry, the State Department of Agriculture and the affected counties and with the concurrence of the Water Resources Commission, the department shall adopt rules governing the management of related adjacent land. Such rules shall be adopted in accordance with ORS chapter 183. Such rules shall reflect management principles, standards and plans applicable to scenic waterways, their shore lines and related adjacent land and, if necessary, establish varying intensities of protection or development based on special attributes of each area. Such management principles, standards and plans shall protect or enhance the aesthetic and scenic values of the scenic waterways and permit compatible agricultural, forestry and other land uses. Specifically, and not in limitation of the foregoing, such rules shall provide that:

(a)

No roads, railroads or utilities shall be constructed within any scenic waterway except where necessary to serve the permissible uses, as defined in subsection (2) of this section and in the rules of the department, of the related adjacent land or unless department approval of such use is obtained as provided in subsection (4) or (5) of this section. The department wherever practicable shall require the sharing of land and airspace by such roads, railroads and utilities. All permissible roads, railroads and utilities shall be located in such a manner as to minimize the disturbance of the natural beauty of a scenic waterway;

(b)

Forest crops shall be harvested in such manner as to maintain as nearly as reasonably is practicable the natural beauty of the scenic waterway;

(c)

Occupants of related adjacent land shall avoid pollution of waters within a scenic waterway;

(d)

The surface of related adjacent land shall not be disturbed for prospecting or mining unless the department’s approval is obtained under subsection (4) or (5) of this section; and

(e)

Unless department approval of the proposed use is obtained under subsection (4) or (5) of this section, no commercial, business or industrial structures or buildings other than structures or buildings erected in connection with an existing use shall be erected or placed on related adjacent land. All structures and buildings erected or placed on such land shall be in harmony with the natural beauty of the scenic waterway and shall be placed a sufficient distance from other structures or buildings so as not to impair substantially such natural beauty. No signs or other forms of outdoor advertising that are visible from waters within a scenic waterway shall be constructed or maintained.

(3)

No person shall put related adjacent land to uses that violate ORS 390.805 (Definitions for ORS 390.805 to 390.925) to 390.925 (Enforcement) or the rules of the department adopted under ORS 390.805 (Definitions for ORS 390.805 to 390.925) to 390.925 (Enforcement) or to uses to which the land was not being put before December 3, 1970, or engage in the cutting of trees, or mining, or prospecting on such lands or construct roads, railroads, utilities, buildings or other structures on such lands, unless the owner of the land has given to the department written notice of such proposed use at least one year prior thereto and has submitted to the department with the notice a specific and detailed description of such proposed use or has entered into agreement for such use with the department under subsection (5) of this section. The owner may, however, act in emergencies without the notice required by ORS 390.805 (Definitions for ORS 390.805 to 390.925) to 390.925 (Enforcement) when necessary in the interests of public safety.

(4)

Upon receipt of the written notice provided in subsection (3) of this section, the department shall first determine whether in its judgment the proposed use would impair substantially the natural beauty of a scenic waterway. If the department determines that the proposal, if put into effect, would not impair substantially the natural beauty of the scenic waterway, the department shall notify in writing the owner of the related adjacent land that the owner may immediately proceed with the proposed use as described to the department. If the department determines that the proposal, if put into effect, would impair substantially the natural beauty of the scenic waterway, the department shall notify in writing the owner of the related adjacent land of such determination and no steps shall be taken to carry out such proposal until at least one year after the original notice to the department. During such period:

(a)

The department and the owner of the land involved may agree upon modifications or alterations of the proposal so that implementation thereof would not in the judgment of the department impair substantially the natural beauty of the scenic waterway; or

(b)

The department may acquire by purchase, gift or exchange, the land involved or interests therein, including scenic easements, for the purpose of preserving the natural beauty of the scenic waterway.

(5)

The department, upon written request from an owner of related adjacent land, shall enter into negotiations and endeavor to reach agreement with such owner establishing for the use of such land a plan that would not impair substantially the natural beauty of the scenic waterway. At the time of such request for negotiations, the owner may submit a plan in writing setting forth in detail proposed uses. Three months after the owner makes such a request for negotiations with respect to use of land, either the department or the owner may give written notice that the negotiations are terminated without agreement. Nine months after the notice of termination of negotiations the owner may use land in conformity with any specific written plan submitted by the owner prior to or during negotiations. In the event the department and the owner reach agreement establishing a plan for land use, such agreement is terminable upon at least one year’s written notice by either the department or the owner.

(6)

With the concurrence of the Water Resources Commission, the department may institute condemnation proceedings and by condemnation acquire related adjacent land:

(a)

At any time subsequent to nine months after the receipt of notice of a proposal for the use of such land that the department determines would, if carried out, impair substantially the natural beauty of a scenic waterway unless the department and the owner of such land have entered into an agreement as contemplated by subsection (4) or (5) of this section or the owner shall have notified the department of the abandonment of such proposal; or

(b)

At any time related adjacent land is used in a manner violating ORS 390.805 (Definitions for ORS 390.805 to 390.925) to 390.925 (Enforcement), the rules of the department or any agreement entered into by the department pursuant to subsection (4) or (5) of this section; or

(c)

At any time related adjacent land is used in a manner which, in the judgment of the department, impairs substantially the natural beauty of a scenic waterway, if the department has not been given at least one year’s advance written notice of such use and if there is not in effect department approval of such use pursuant to subsection (4) or (5) of this section.

(7)

In such condemnation the owner of the land shall not receive any award for the value of any structure, utility, road or other improvement constructed or erected upon the land after December 3, 1970, unless the department has received written notice of such proposed structure, utility, road or other improvement at least one year prior to commencement of construction or erection of such structure, utility, road or other improvement or unless the department has given approval for such improvement under subsection (4) or (5) of this section. If the person owned the land on December 3, 1970, and for a continuous period of not less than two years immediately prior thereto, the person shall receive no less for the land than its value on December 3, 1970. The department shall not acquire by condemnation a scenic easement in land. When the department acquires any related adjacent land that is located between a lake or river and other land that is owned by a person having the right to the beneficial use of waters in the river by virtue of ownership of the other land:

(a)

The right to the beneficial use of such waters shall not be affected by such condemnation; and

(b)

The owner of the other land shall retain a right of access to the lake or river necessary to use, store or divert such waters as the owner has a right to use, consistent with concurrent use of the land so condemned as a part of the Oregon Scenic Waterways System.

(8)

Any owner of related adjacent land, upon written request to the department, shall be provided copies of rules then in effect or thereafter adopted by the department pursuant to ORS 390.805 (Definitions for ORS 390.805 to 390.925) to 390.925 (Enforcement).

(9)

The department shall furnish to any member of the public upon written request and at expense of the member a copy of any notice filed pursuant to subsection (3) of this section.

(10)

If a scenic waterway contains lands or interests therein owned by or under the jurisdiction of an Indian tribe, the United States, another state agency or local governmental agency, the department may enter into agreement with the tribe or the federal, state or local agency for the administration of such lands or interests therein in furtherance of the purposes of ORS 390.805 (Definitions for ORS 390.805 to 390.925) to 390.925 (Enforcement). [1971 c.1 §5; 1971 c.459 §1; 1973 c.756 §2; 1981 c.236 §3; 1983 c.334 §4]

Source: Section 390.845 — Administration of scenic waterways and related adjacent lands; limitations on use; condemnation; rules, https://www.­oregonlegislature.­gov/bills_laws/ors/ors390.­html.

Notes of Decisions

Value of improvements upon land condemned pursuant to ORS 390.805 to 390.925 is measured as of date of taking, and not as of date of Act, where development of land began before effective date of Act. State Hwy. Comm. v. Chaparral Recreation Assn., 13 Or App 346, 510 P2d 352 (1973)

Provisions of this section authorizing condemnation of “related adjacent land” (for which, despite department’s disapproval, owner proposed and refused to abandon plan substantially impairing natural beauty of scenic waterway) were constitutionally applied where there was substantial evidence that taking landowners’ property was reasonably necessary and that they had made no timely and effective abandonment of objectionable proposal. State ex rel Dept. of Trans. v. Hilderbrand, 35 Or App 403, 582 P2d 13 (1978)

Structures and buildings erected in connection with existing use are subject to prior notice requirement unless exempted by department rule. State Dept. of Trans. v. Solomon, 57 Or App 72, 643 P2d 1312 (1982), Sup Ct review denied

Attorney General Opinions

Authority to designate segment of Snake River as a scenic waterway, (1972) Vol 35, p 1226

Law Review Citations

4 EL 301 (1974); 19 EL 853 (1989)

390.005
Definitions
390.010
Policy of state toward outdoor recreation resources
390.050
Park and recreation violations
390.060
Definitions for ORS 390.060 to 390.067
390.063
Lottery bonds for state park projects
390.065
Findings
390.067
Request for issuance of state park lottery bonds
390.111
Creation of department
390.112
Additional criteria for acquiring and developing new historic sites, parks and recreation areas
390.114
State Parks and Recreation Commission
390.117
Commission officers
390.121
Powers of commission
390.122
Requirements for establishing priorities for acquisition
390.124
Commission rulemaking authority
390.127
State Parks and Recreation Director
390.131
Duties of director
390.134
State Parks and Recreation Department Fund
390.135
Parks Subaccount
390.137
State Parks and Recreation Department Operating Fund
390.139
Oregon Adopt-a-Park Program
390.140
Powers and duties of State Parks and Recreation Director
390.141
Agreements between State Parks and Recreation Department and private organizations
390.142
Rules
390.143
Agreements to provide interpretive services to recreational facilities
390.144
Rules for ORS 390.143
390.150
Gifts and grants for State Parks and Recreation Department
390.153
Parks Donation Trust Fund
390.155
Authority for State Parks and Recreation Department to accept gifts or donations
390.180
Standards for recreational planning and fund disbursement
390.182
Statewide accessibility design standards for recreation projects
390.190
Revolving fund
390.195
Use of state correctional institution adult in custody labor for maintenance and improvement at state parks
390.200
Authority of department to require fingerprints
390.230
Fort Stevens Military Reservation
390.231
Development of Crissey Field as state park
390.232
Tax on government camping and recreational vehicle spaces
390.235
Permits and conditions for excavation or removal of archaeological or historical material
390.237
Removal without permit
390.240
Mediation and arbitration of disputes
390.241
Office of Outdoor Recreation
390.242
Associate Director of Outdoor Recreation
390.243
Outdoor Recreation Advisory Committee
390.245
Commemorative coins authorized
390.247
Design
390.250
Development of recreational use of lands by Jackson County
390.255
Use of funds to acquire land interests
390.260
Application to Willamette River Greenway
390.262
Oregon Main Street Revitalization Grant Program
390.264
Oregon Main Street Revitalization Grant Program Fund
390.270
Definitions for ORS 390.270 to 390.290
390.275
Purpose of ORS 390.270 to 390.290
390.280
Duties of State Parks and Recreation Department
390.285
Application by local governing body for reimbursement
390.290
Schedule for reimbursement of local governing bodies
390.292
Willamette Falls Park Fund
390.295
Jurisdiction of State Forestry Department and State Parks and Recreation Department
390.300
Tillamook Forest Recreation Trust Account
390.303
Reconnect Forest Park Fund
390.305
Salmonberry Trail
390.307
Salmonberry Trail Trust Fund
390.308
Oregon Coast Trail
390.310
Definitions for ORS 390.310 to 390.368
390.314
Legislative findings and policy
390.318
Preparation of development and management plan
390.322
Submission of plan to Land Conservation and Development Commission
390.330
Grants for acquisition of lands by local government units
390.332
Acquisition of scenic easements near Willamette River
390.334
Acquisition of scenic easements in lands subject to development plan
390.338
Limitations on use of condemnation power
390.340
Department rules
390.350
Intergovernmental agreements
390.360
Title to, and use and disposition of, lands acquired by local governmental units
390.364
Taxation of lands subject to scenic easements
390.368
Authority to contract landscaping and repair of damage to lands subject to scenic easement
390.400
Public electric vehicle charging stations
390.405
Parks and Recreation Transportation Electrification Fund
390.550
Definitions
390.555
All-Terrain Vehicle Account
390.560
Uses of All-Terrain Vehicle Account
390.565
All-Terrain Vehicle Advisory Committee
390.570
Class I all-terrain vehicle operator permits
390.575
Class III all-terrain vehicle operator permits
390.577
Class IV all-terrain vehicle operator permit
390.580
All-terrain vehicle operating permit
390.585
Rules
390.590
Out-of-state all-terrain vehicle permit
390.605
Definitions
390.610
Policy
390.615
Ownership of Pacific shore
390.620
Pacific shore not to be alienated
390.630
Acquisition along ocean shore for state recreation areas or access
390.632
Public access to coastal shorelands
390.635
Jurisdiction of department over recreation areas
390.640
Permit required for improvements on ocean shore
390.650
Improvement permit procedure
390.655
Standards for improvement permits
390.659
Hearing before director regarding department action on improvement permit
390.660
Regulation of use of lands adjoining ocean shores
390.661
Improvement without permit or contrary to permit conditions as public nuisance
390.663
Investigation of violation within ocean shore
390.666
Revocation, suspension or nonrenewal of improvement permit
390.669
Action by state or any person to abate public nuisance
390.672
Damages for destruction or infringement of public right of navigation, fishery or recreation
390.674
Imposition of civil penalties
390.676
Schedule of civil penalties
390.678
Motor vehicle and aircraft use regulated in certain zones
390.685
Effect of ORS 390.605, 390.615, 390.678 and 390.685
390.690
Title and rights of state unimpaired
390.705
Prohibition against placing certain conduits across recreation area and against removal of natural products
390.715
Permits for pipe, cable or conduit across ocean shore, state recreation areas and submerged lands
390.725
Permits for removal of products along ocean shore
390.729
Permits for operation of all-terrain vehicles on ocean shore
390.755
Periodic reexamination of vegetation line
390.760
Exceptions from vegetation line
390.770
Vegetation line described
390.805
Definitions for ORS 390.805 to 390.925
390.815
Policy
390.826
Designated scenic waterways
390.827
Effect of ORS 390.826 on rights of Indian tribes
390.835
Highest and best use of waters within scenic waterways
390.845
Administration of scenic waterways and related adjacent lands
390.848
Passes for use of parts of Deschutes River
390.851
Activities prohibited on parts of Deschutes River without pass
390.855
Designation of additional scenic waterways
390.865
Authority of legislature over designation of additional scenic waterways
390.875
Transfer of public lands in scenic waterways to department
390.885
Exchange of property within scenic waterway for property outside waterway
390.895
Use of federal funds
390.905
Effect of ORS 390.805 to 390.925 on other state agencies
390.910
Intergovernmental cooperation
390.915
Determination of value of scenic easement for tax purposes
390.925
Enforcement
390.930
Definitions for ORS 390.930 to 390.940
390.932
Creation of Deschutes River Scenic Waterway Recreation Area
390.934
Management of Deschutes River Scenic Waterway Recreation Area
390.936
Rules
390.938
Guidelines for management and development
390.940
Relationship to other laws
390.950
Short title
390.956
Policy
390.959
Composition of trails system
390.962
Criteria for establishing trails
390.965
Hearing required
390.968
Selection of rights of way for trails
390.971
Department duties and powers
390.974
Intergovernmental cooperation to obtain property for use in trail system
390.977
Oregon Recreation Trails Advisory Council
390.980
Funds for purposes of ORS 390.950 to 390.989
390.983
Trail property tax assessment
390.986
Injunctive relief for violation of ORS 390.950 to 390.989
390.989
Eminent domain does not apply to department powers or duties under ORS 390.950 to 390.989
390.990
Violations
390.992
Civil penalties
390.995
Criminal penalties
390.997
Penalties for violation of ORS 166.155 or 166.165
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