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DEPARTMENT OF STATE LANDS

 

DIVISION 100

ADMINISTRATIVE RULES GOVERNING THE ISSUANCE AND ENFORCEMENT
OF REMOVAL FILL PERMITS IN STATE SCENIC WATERWAYS

141-100-0005

Definitions

In addition to the definitions contained in ORS 390.805 through 390.835 and in OAR 141-085, the following definitions apply:

(1) "Beds" means the land within the wet perimeter and any adjacent non-vegetated dry gravel bar.

(2) "Emergency Circumstances" means immediate natural or human caused events the effects of which require prompt action to prevent irreparable harm, injury or damage to persons or property.

(3) "Irreparable" means without reasonable possibility of repair or restoration, or an extreme condition that cannot be corrected.

(4) "Prospecting" means to search or explore for samples of gold, silver or other precious minerals, using non-motorized methods, from among small quantities of aggregate.

(5) “Recreational Placer Mining in State Scenic Waterways” means to search or explore for samples of gold, silver or other precious minerals and remove, fill or move by artificial means, either through motorized or non-motorized methods, from or within the bed of a State Scenic Waterway by methods other than dredging. Note-Due to action by the 2001 Oregon Legislative Assembly (Oregon Laws 2001, Chapter 499, Section 4), the Department is no longer authorized to issue permits for dredging related to recreational placer mining in State Scenic Waterways.

(6) "Related Adjacent Land" means all land within 1/4 of one mile of the bank of Waldo Lake, or a river or segment of river within a State Scenic Waterway, except land that, in the Oregon Parks and Recreation Department's (OPRD) judgment, does not affect the view from the waters within a State Scenic Waterway.

(7) "State Scenic Waterway" means Waldo Lake, or a river or a segment of a river that has been designated under ORS 390.805 through 390.925 or any subsequent act, and includes related adjacent lands.

(8) "State Scenic Waterway Emergency Removal-Fill Permit" is an authorization issued by the Director for temporary, emergency-specific removal-fill activity in a State Scenic Waterway or jurisdictional waters within its related adjacent land.

(9) "State Scenic Waterway Individual Removal-fill Permit" is an authorization issued by the Department for any removal, filling or alteration of the bed and banks of a State Scenic Waterway and its related adjacent lands.

(10) "Special Attribute" means an aesthetic, scenic, environmental, scientific, recreational or similar feature identified by OPRD in a State Scenic Waterway Management Plan as the value that caused a particular waterway to be included in the Oregon Scenic Waterway Program. (ORS 390.845).

(11) "Waters of a State Scenic Waterway" are any waters within a designated State Scenic Waterway, including waters within its related adjacent lands that are subject to the jurisdiction of the Department.

(12) "Wet Perimeter" means the area of the stream that is under water, or is exposed as a non-vegetated dry gravel bar island surrounded on all sides by actively moving water at the time the activity occurs.

Stat. Auth.: ORS 196.600 – 196.692, 196.795 – 196.990, 390.805 – 390.925
Stats. Implemented: ORS 196.600 – 196.692, 196.795 – 196.990, 390.805 – 390.925
Hist.: LB 3-1994, f. 5-11-94, cert. ef. 5-15-94; DSL 3-1998, f. & cert. ef. 4-22-98; DSL 2-2006, f. 3-21-06, cert. ef. 3-27-06; DSL 3-2009, f. 2-13-09, cert. ef. 3-1-09; Renumbered from 141-100-0000, DSL 4-2011, f. & cert. ef. 3-1-11

141-100-0010

Purpose

Pursuant to ORS 390.835(2) and (3), these rules establish procedures for the consideration and processing of permit applications for fill, removal and other alterations of the beds and banks of a State Scenic Waterway and in jurisdictional waters within related adjacent lands.

Stat. Auth.: ORS 196.600 – 196.692, 196.795 – 196.990, 390.805 – 390.925
Stats. Implemented: ORS 196.600 – 196.692, 196.795 – 196.990, 390.805 – 390.925
Hist.: LB 3-1994, f. 5-11-94, cert. ef. 5-15-94; DSL 4-2011, f. & cert. ef. 3-1-11

141-100-0020

Policy

The Department will:

(1) Preserve. Preserve the natural setting and free-flowing character of State Scenic Waterways and related adjacent lands for recreation, fish and wildlife uses for present and future benefit to the public.

(2) Recognize Best Use of Waters. Recognize recreation, fish and wildlife uses as the highest and best uses of the waters of a State Scenic Waterway.

(3) Protect. Protect the outstanding scenic, geological, botanical, historic, archaeological, outdoor recreation and fish and wildlife values along State Scenic Waterways by protecting the special attributes (as listed in each Scenic Waterway Management Plan prepared by OPRD) that caused the waterway to be included in the Scenic Waterway system.

(4) Require Non-structural Techniques. Require applicants to employ streambank stabilization and rehabilitation techniques utilizing native riparian vegetation and other non-structural alternatives, unless it can be demonstrated such approaches are unlikely to be effective for the given situation under consideration by the Department.

(5) Require Permits Prohibit filling, removal and alteration of the beds and banks of State Scenic Waterways, except as provided under OAR 141-100-0035, unless a permit is issued by the Director as provided in these rules.

(6) Cooperate with Local, State and Federal Agencies. Recognize the interrelated nature of regulatory activities affecting State Scenic Waterways and the need to achieve coordinated management and protection of State Scenic Waterway values. The Department shall work in close cooperation with state, local and federal agencies, particularly OPRD, Water Resources Department (WRD), Department of Environmental Quality (DEQ), Oregon Department of Fish and Wildlife (ODFW), U.S. Army Corps of Engineers (COE), affected tribes, and local government land use planning agencies.

(7) Provide for Public Comment. Recognize the high level of public interest in State Scenic Waterway management by providing opportunities for comment on proposed policies or rules and individual applications.

(8) Ensure Compatibility with Land Use. Adhere to the Department's State Agency Coordination Plan (OAR 141-095-0005 through 141-095-0015), to assure compliance with the statewide planning goals and compatibility with acknowledged city and county comprehensive land use plans.

Stat. Auth.: ORS 196.600 – 196.692, 196.795 – 196.990, 390.805 – 390.925
Stats. Implemented: ORS 196.600 – 196.692, 196.795 – 196.990, 390.805 – 390.925
Hist.: LB 3-1994, f. 5-11-94, cert. ef. 5-15-94; DSL 3-1998, f. & cert. ef. 4-22-98; DSL 2-2006, f. 3-21-06, cert. ef. 3-27-06; DSL 3-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 4-2011, f. & cert. ef. 3-1-11

141-100-0030

Coordination with Key Agencies Involved in Scenic Waterway Management

(1) Cooperative Effort. Managing the State Scenic Waterway Program is a cooperative effort of the OPRD, WRD and the Department. In addition, ODFW, DEQ, the Department of Forestry (DOF) and the Oregon State Marine Board play key roles. Therefore, the Department will:

(a) Coordinate the review and issuance of all State Scenic Waterway removal-fill permits with the affected state agencies;

(b) Coordinate the investigation of alleged State Scenic Waterway removal-fill violations with affected agencies;

(c) Advise applicants of the need to obtain concurrence from OPRD for projects on related adjacent lands; and

(d) Seek to utilize the expertise of other state agency’s staff.

(2) Tribal and Federal Coordination. Because many State Scenic Waterways are also included in the federal Wild and Scenic River system or similar designations on tribal lands, the Department will work closely with the appropriate federal agencies including the U.S. Forest Service (USFS), U.S. Bureau of Land Management (BLM), the U.S Army Corps of Engineers (USACE) and affected tribes as follows:

(a) Fully coordinate the review and issuance of all State Scenic Waterway removal-fill permits with the analysis outlined in the Application Review Procedures for Scenic Waterway Removal-fill Permits (OAR 141-100-0045), and participate in National Environmental Protection Act review or any similar evaluations conducted by federal agencies; and

(b) Immediately notify the appropriate federal agency or affected tribe of alleged State Scenic Waterway removal-fill violations.

Stat. Auth.: ORS 196.600 – 196.692, 196.795 – 196.990, 390.805 – 390.925
Stats. Implemented: ORS 196.600 – 196.692, 196.795 – 196.990, 390.805 – 390.925
Hist.: LB 3-1994, f. 5-11-94, cert. ef. 5-15-94; DSL 2-2006, f. 3-21-06, cert. ef. 3-27-06; DSL 3-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 4-2011, f. & cert. ef. 3-1-11

141-100-0035

Exemptions from Permit Requirements in State Scenic Waterways

(1) Prospecting. A permit will not be required for non-motorized methods of recreational prospecting resulting in filling, removing or moving by artificial means less than one cubic yard of material at any one individual site and, cumulatively, not more than five cubic yards of material from within the bed or wet perimeter of any single State Scenic Waterway in a single year. Recreational prospecting is prohibited from any site where fish eggs are present.

(2) Oregon Department of Fish and Wildlife (ODFW). ODFW may construct facilities or make improvements to facilitate the passage or propagation of fish and exercise other responsibilities in managing fish and wildlife resources.

(3) Oregon Water Resources Department (OWRD). OWRD may construct and maintain stream gauge stations and other facilities related to OWRD’s duties in the administration of the water laws.

Stat. Auth.: ORS 196.600 – 196.692, 196.795 – 196.990, 390.805 – 390.925
Stats. Implemented: ORS 196.600 – 196.692, 196.795 – 196.990, 390.805 – 390.925
Hist.: DSL 4-2011, f. & cert. ef. 3-1-11

141-100-0040

Permit Types

Unless exempt under OAR 141-100-0035, one of the following types of permits is required prior to undertaking any amount of removal-fill activity within the bed and banks of a State Scenic Waterway and in waters of this state on related adjacent lands:

(1) State Scenic Waterway Individual Removal-fill Permit; or

(2) State Scenic Waterway Emergency Removal-fill Permit.

Stat. Auth.: ORS 196.600 – 196.692, 196.795 – 196.990, 390.805 – 390.925
Stats. Implemented: ORS 196.600 – 196.692, 196.795 – 196.990, 390.805 – 390.925
Hist.: LB 3-1994, f. 5-11-94, cert. ef. 5-15-94; DSL 3-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 4-2011, f. & cert. ef. 3-1-11

141-100-0045

State Scenic Waterway Individual Removal-Fill Permits

(1) Application Procedures. Applications for approval of all regulated removal-fill activities in State Scenic Waterways must be submitted to the Department in writing, in advance of the proposed activity, and must include all information needed to evaluate the request. The application must be submitted on the Joint Permit Application Form of the COE and the Department and must meet the standards for completed applications in OAR 141-085.

(2) Fees. Fees must be submitted for a complete application in accordance with the current fee schedule under OAR 141-085.

(3) Application Review Procedures:

(a) Applications must be reviewed within 30 calendar days from receipt and processed in a manner consistent with OAR 141-085, the Department rules for individual removal and fill permits;

(b) In reviewing an application, the Department will conduct the necessary investigations to develop a rational basis for a decision consistent with the requirements of the policies of this rule; and

(c) The Department may consult with any person, group or agency interested in or affected by a permit decision.

(4) Public Review Process. All applications for impact to State Scenic Waterways must be available for public comment for 30 calendar days.

(a) The Department will provide application notice for comment to the Department of Fish and Wildlife, Department of Environmental Quality, Department of Land Conservation and Development, Department of Agriculture, Water Resources Department, Business Development Department, State Parks and Recreation Department, State Historic Preservation Office, Department of Geology and Mineral Industries, Department of Transportation, Department of Forestry, and any other affected state and federal agency and tribes. The Department will also provide application notice to adjacent property owners listed on the application and interested persons who request notice;

(b) In accordance with the procedures in the State Agency Coordination Program, the Department will provide application notice to the appropriate local government planning department(s) for a determination of the proposed activity's compatibility or non-compatibility with the affected city and county comprehensive plan(s) and land use regulations. If it is necessary to adopt findings of compliance with the statewide planning goals, the Department will act in accordance with its State Agency Coordination Program; and

(c) Recommendations and comments regarding the project must be submitted in writing to the Director within 30 calendar days from the date the application is provided for comment. The Department will give reasonable consideration to permit conditions or comments offered by any person.

Stat. Auth.: ORS 196.600 – 196.692, 196.795 – 196.990, 390.805 – 390.925
Stats. Implemented: ORS 196.600 – 196.692, 196.795 – 196.990, 390.805 – 390.925
Hist.: LB 3-1994, f. 5-11-94, cert. ef. 5-15-94; DSL 3-1998, f. & cert. ef. 4-22-98DSL 2-2006, f. 3-21-06, cert. ef. 3-27-06; DSL 3-2009, f. 2-13-09, cert. ef. 3-1-09; Renumbered from 141-100-0050, DSL 4-2011, f. & cert. ef. 3-1-11

141-100-0052

Agency Considerations and Determinations

(1) Issuance. The Department will issue State Scenic Waterway removal-fill permits only upon written findings that:

(a) The proposed activity is consistent with the State Scenic Waterway Act (ORS 390.805 through 390.925 or an applicable OPRD Scenic Waterway Management Plan or interim classification. The Department will coordinate with OPRD and WRD prior to making this determination;

(b) The proposed activity is consistent with ORS 196.800 through 196.990 administered according to OAR 141-085 related to removal of materials from the beds or banks and filling of any waters of this state;

(c) The proposed activity meets a demonstrated need and minimizes adverse impacts to special attributes of designated State Scenic Waterways; and

(d) The proposed activity, individually or collectively, would not degrade fish, wildlife or recreation values.

(2) Denial. The Director will deny any permit application, based upon written findings, if the proposed activity is not consistent with the policies under ORS 390.805 through 390.925 for State Scenic Waterways or ORS 196.800 through 196.825 and 196.845 through 196.870 for removal of material from the bed and banks and filling any waters of this state.

(3) Findings. Written findings are required for all authorizations or denials of a permit application.

(4) Expiration. No State Scenic Individual Removal-Fill Permit will be issued for more than five years from issue date.

(5) Renewal. State Scenic Individual Removal-Fill Permits, not associated with recreational placer mining issued under OAR 141-100-0055, may be renewed for multi-year projects in the same manner as OAR 141-085.

Stat. Auth.: ORS 196.600 – 196.692, 196.795 – 196.990, 390.805 – 390.925
Stats. Implemented: ORS 196.600 – 196.692, 196.795 – 196.990, 390.805 – 390.925
Hist.: DSL 4-2011, f. & cert. ef. 3-1-11

141-100-0055

Recreational Placer Mining within State Scenic Waterways

(1) Limited Activities. No placer mining is permitted on waters within State Scenic Waterways other than recreational placer mining.

(2) Threshold. A complete application in accordance with OAR 141-085-0550 and authorization under OAR 141-100-0045 will be required for non-dredge recreational placer mining involving filling, removing or moving by artificial means any amount of material from within the bed or wet perimeter of any single scenic waterway or waters within jurisdictional waters within related adjacent lands.

(3) Eligibility Criteria. To be eligible for a Scenic Waterway Individual Removal-Fill permit for recreational, non-dredge placer mining, the operation must conform to the following:

(a) The activity must be for recreational placer mining as defined in OAR 141-100-0005(5);

(b) The activity must not dam or divert a waterway or obstruct fish passage;

(c) The activity must not occur outside the wet perimeter, nor extend the wet perimeter;

(d) The activity must not involve disturbance of rooted or embedded woody plants including trees and shrubs, regardless of their location (for example, on gravel bars);

(e) The activity must not include excavation from the streambank between the edge of the wet perimeter and the Ordinary High Water Line;

(f) The activity must not include movement of boulders, logs, stumps or other woody material from the wet perimeter other than movement by hand and non-motorized equipment;

(g) Upon completion of the mining activity all piles, pits, furrows or potholes outside the main channel of the waterway created by the activity must be leveled by hand;

(h) The recreational placer miner must obtain landowner permission before operating;

(i) The activity must occur only during the recommended in-water work period identified in the Oregon Department of Fish and Wildlife's "Oregon Guidelines for Timing of In-Water Work to Protect Fish and Wildlife Resources" and is prohibited during periods when fish eggs could be in the activity site;

(j) The activity must comply with other applicable local, state, and federal laws and regulations, including the federal Endangered Species Act; and

(k) The activity must not impede recreational boating.

(4) Annual Report Required. The authorization holder must report, on a form provided by the Department, the amount of material removed, placed or altered in each State Scenic Waterway in during the year of authorization. The Department must receive this report before December 31 of each year that the individual permit is valid.

(5) Expiration. The State Scenic Waterway Individual Removal-Fill Permit for recreational placer mining is valid for up to one year.

(6) Renewal. The State Scenic Waterway Individual Removal-Fill permit for recreational placer mining may be conditionally renewed for up to five years when annual reports are submitted for the previous year according to OAR 141-100-0055(4).

Stat. Auth.: ORS 196.600 – 196.692, 196.795 – 196.990, 390.805 – 390.925
Stats. Implemented: ORS 196.600 – 196.692, 196.795 – 196.990, 390.805 – 390.925
Hist.: DSL 3-1998, f. & cert. ef. 4-22-98; DSL 2-2006, f. 3-21-06, cert. ef. 3-27-06; DSL 3-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 4-2011, f. & cert. ef. 3-1-11

141-100-0060

Scenic Waterway Emergency Removal/Fill Permits

(1) Application Procedures. Applications for a State Scenic Waterway Emergency Removal-Fill Permit may be made verbally (e.g., by phone), or by written application, including facsimile, by the following procedures:

(a) Applicants must provide the Department the following information:

(A) Location of emergency;

(B) A description of the emergency;

(C) The proposed action to be taken; and

(D) The potential consequences of taking no action.

(b) Within five calendar days of receiving a verbal confirmation of an emergency permit for removal-fill activities, the applicant must submit to the Department a written emergency permit application and applicable fees, in accord with the procedures herein.

(2) Review Standards. The Director may issue State Scenic Waterway Emergency Removal-Fill Permits only after determination that:

(a) Natural or human-caused situation exist which cause the emergency circumstance, such as, but not limited to, flooding, landslides, wildfire, and hazardous substance spills; and

(b) It is necessary to make repairs or take action to prevent irreparable harm, injury, or damage to persons or property.

(3) Review Procedures. The Director may conduct the review of State Scenic Waterway Emergency Removal-Fill Permit applications by:

(a) Consulting with ODFW and OPRD before issuing a temporary Emergency Removal-Fill Permit as provided by ORS 390.835(3)(a) and DEQ and WRD ,if applicable. Consultation may be achieved by Memorandum of Agreement with the applicable agencies or on a case-by-case permit review;

(b) Completing an investigation sufficient to develop a rational basis for a decision consistent with the requirements of the Issuance Standards;

(c) Consulting with any applicable tribes or federal land managers and regulators, as allowed by circumstances and time constraints, and by reasonable consideration to those agencies’ recommendations for temporary permit conditions; and

(d) Assuring compatibility of the project, to the extent practical, with the affected local government(s) comprehensive plan and land use regulations.

(4) Permit Decisions:

(a) The Director may issue a State Scenic Emergency Removal-Fill Permit, only if all the review standards for emergency waterway permits are met. Emergency permit issuance by the Director may be made by written confirmation to the applicant, verbally (to be followed by written confirmation), or through procedures established in Memoranda of Agreement with other agencies (e.g., through the Oregon Emergency Response System);

(b) The Department staff may visit the site of the emergency permitted activity as soon as practicable following permit issuance; and

(c) Following the issuance of an emergency permit, the Department may review the emergency permit and determine if any further action is necessary to modify the permit conditions after the emergency has passed.

Stat. Auth.: ORS 196.600 – 196.692, 196.795 – 196.990, 390.805 – 390.925
Stats. Implemented: ORS 196.600 – 196.692, 196.795 – 196.990, 390.805 – 390.925
Hist.: LB 3-1994, f. 5-11-94, cert. ef. 5-15-94; DSL 3-1998, f. & cert. ef. 4-22-98; DSL 2-2006, f. 3-21-06, cert. ef. 3-27-06; DSL 3-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 4-2011, f. & cert. ef. 3-1-11

141-100-0070

Appeals

(1) Applicants. Any applicant whose application to the Department for a permit has been denied, or who objects to any of the permit conditions imposed by the Director, may, within 21 calendar days of the denial of the permit or the imposition of any condition, request a hearing from the Director. The hearing will be conducted as a contested case hearing in accordance with ORS 196.825(6).

(2) Aggrieved or Adversely Affected Persons. Any person, excluding permit applicants, aggrieved or adversely affected by issuance or denial of a permit by the Director may file a written request for hearing within 21 calendar days after the date the permit was granted in the manner provided by ORS 196.835.

Stat. Auth.: ORS 196.600 – 196.692, 196.795 – 196.990, 390.805 – 390.925
Stats. Implemented: ORS 196.600 – 196.692, 196.795 – 196.990, 390.805 – 390.925
Hist.: LB 3-1994, f. 5-11-94, cert. ef. 5-15-94; DSL 3-1998, f. & cert. ef. 4-22-98; DSL 2-2006, f. 3-21-06, cert. ef. 3-27-06; DSL 3-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 4-2011, f. & cert. ef. 3-1-11

141-100-0080

Enforcement

The Director is authorized to take civil, criminal and administrative action to enforce the requirements of this Division using the authorities provided by the Removal-Fill Law according to ORS 196.860 through 196.990 and OAR 141-085.

Stat. Auth.: ORS 196.600 – 196.692, 196.795 – 196.990, 390.805 – 390.925
Stats. Implemented: ORS 196.600 – 196.692, 196.795 – 196.990, 390.805 – 390.925
Hist.: LB 3-1994, f. 5-11-94, cert. ef. 5-15-94; DSL 3-1998, f. & cert. ef. 4-22-98; DSL 2-2006, f. 3-21-06, cert. ef. 3-27-06; DSL 3-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 4-2011, f. & cert. ef. 3-1-11

141-100-0090

Appeals of Enforcement Orders

Any person aggrieved by a proposed enforcement order of the Director for a removal-fill violation in a State Scenic Waterway may request a contested case hearing within 20 calendar days of the date of personal service or mailing of the notice of order. However, requesting a contested case hearing on a Cease and Desist Order must be made within 10 calendar days of the date of personal service or mailing of the notice of order. Hearing procedures are the same as for other Removal-Fill Law violations as provided in OAR 141-085.

Stat. Auth.: ORS 196.600 – 196.692, 196.795 – 196.990, 390.805 – 390.925
Stats. Implemented: ORS 196.600 – 196.692, 196.795 – 196.990, 390.805 – 390.925
Hist.: LB 3-1994, f. 5-11-94, cert. ef. 5-15-94; DSL 3-1998, f. & cert. ef. 4-22-98; DSL 3-2009, f. 2-13-09, cert. ef. 3-1-09; DSL 4-2011, f. & cert. ef. 3-1-11

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