STATE AGENCY COORDINATION PROGRAM
In accordance with ORS 197.180, this rule establishes Department policy and procedures to assure that Department activities determined to significantly affect land use are carried out in a manner that complies with the statewide land use goals and are compatible with acknowledged comprehensive plans. There are limited situations such as those related to the Health Abatement Act and Threat to Drinking Water Act where the applicable statutes obligate the Department to make decisions based exclusively on environmental, public health and safety considerations, and nothing in this program is intended to affect these responsibilities. Division 18 shall control over any inconsistent rule provisions relating to land use compliance and compatibility in OAR Chapter 340, Divisions 20, 35, 52, 61, 71, and 120.
It is the Commission's policy to coordinate the Department's programs, rules and actions that affect land use with local acknowledged plans to the fullest degree possible.
As used in these rules:
(1) "Acknowledged Comprehensive Plan" means a city or county comprehensive land use plan that has been approved by the Land Conservation and Development Commission.
(2) "Affected Local Government" means a city or county government that has land use planning jurisdiction.
(3) "Commission" means the Environmental Quality Commission.
(4) "Department" means the Department of Environmental Quality.
(5) "Director" means the Director of the Department of Environmental Quality.
(6) "DLCD" means the Department of Land Conservation and Development.
(7) "Land Use Action" means a Department rule, program or activity which has been determined to affect land use as defined by OAR 660-030-0005.
(8) "Land Use Dispute" means a difference of opinion between the Department and local government as to the compatibility of a Department land use action with the provisions of an acknowledged comprehensive plan.
(9) "Local Government" means an incorporated city or county.
(10) "LUBA" means the Land Use Board of Appeals.
(11) "LUCS" means a land use compatibility statement.
(12) "NPDES" means a wastewater discharge permit issued in accordance with requirements and procedures of the National Pollutant Discharge Elimination System.
(13) "SAC Program Document" means the Department's State Agency Coordination Program document developed pursuant to ORS 197.180.
(14) "Statewide Goals" means Oregon's Statewide Planning Goals adopted by the Land Conservation and Development Commission pursuant to ORS 197.222.
(15) "TMDL" means Total Maximum Daily Load, as defined in OAR 340-042-0030(15).
(16) "WPCF" means a state Water Pollution Control Facilities Permit.
Stat. Auth.: ORS 468.020
Stats. Implemented: ORS 197.180
Hist.: DEQ 36-1990, f. & cert. ef. 8-28-90; DEQ 10-2003, f. & cert. ef. 5-27-03
The provisions of this rule, OAR 340-018-0000 through 340-018-0200 apply to Department programs and actions subsequently determined to have significant effects on land use pursuant to ORS 197.180 and OAR 660-030-0075. Department land use actions are identified below:
(1) Air Quality Division:
(a) Approval of Noise Impact Boundaries for Motor Racing Facilities;
(b) Approval of Airport Noise Abatement Program and Noise Impact Boundaries;
(c) Approval of Notice of Construction;
(d) Issuance of Air Contaminant Discharge Permit;
(e) Issuance of Indirect Source Construction Permit;
(f) Approval of Parking and Traffic Circulation Plan.
(g) Employee Commute Options.
(2) Environmental Cleanup Division: Issuance of Environmental Hazard Notice.
(3) Hazardous and Solid Waste Division:
(a) Issuance of Solid Waste Disposal Permit;
(b) Issuance of Waste Tire Storage Permit; and
(c) Issuance of Hazardous Waste and PCB Storage, Treatment and Disposal Permit.
(4) Management Services Division: Approval of Pollution Control Bond Fund Application.
(5) Water Quality Division:
(a) Approval of Wastewater System and Facility Plans;
(b) Approval of State Revolving Loan Application;
(c) Issuance of On-site Sewer Permit;
(d) Issuance of NPDES and WPCF Permits;
(e) Development of Water Quality Wetland Protection Criteria;
(f) Requirement of an Implementation Plan to Meet Restrictions for Waste Load Allocations on Water Quality Limited Waterways (TMDLS);
(g) Certification of Water Quality Standards for Federal Permits, Licenses;
(h) Development of Action Plan for Declared Ground Water Management Area;
(i) Development of Nonpoint Source Management Plan;
(j) Development of Estuary Plans;
(k) Development of Oil Spill Regulations.
Stat. Auth.: ORS 468.020
Stats. Implemented: ORS 197.180
Hist.: DEQ 36-1990, f. & cert. ef. 8-28-90; DEQ 14-1996, f. & cert. ef. 8-14-96; DEQ 5-1997(Temp), f. & cert. ef. 3-3-97; DEQ 10-2003, f. & cert. ef. 5-27-03
Compliance with Statewide Planning Goals
(1) The Department shall to the extent required by law, achieve goal compliance for land use programs and actions identified in OAR 340-018-0030 by assuring compatibility with acknowledged comprehensive plans, except as provided in section (3) of this rule.
(2) The Department shall consider a land use action to be in compliance with the goals when the action is determined compatible with the comprehensive plan.
(3) The Department shall assure statewide goal compliance when necessary through the adoption of findings pursuant to OAR 660-030-0065(3) through the following process:
(a) The identification of applicable goals;
(b) Request for advice from DLCD or the Attorney General's office when necessary;
(c) Consultation with the affected local government; and
(d) The adoption of necessary findings.
(4) Department statutory responsibilities under ORS 222.840, the Health Abatement Law, are exempt from compliance with the statewide goals and compatibility with local comprehensive plans.
Compatibility with Acknowledged Comprehensive Plans
(1) Commission or Department actions under OAR 340-018-0030 shall be compatible with local government acknowledged comprehensive plans to the extent required by law.
(2) The Department shall rely on the compatibility procedures described in Section III, subsection (3), and Section IV, subsections (2), (3), and (4) of the SAC Program document to assure compatibility with an acknowledged comprehensive plan, which include but may not be limited to the procedures described below:
(a) An applicant's submittal of a LUCS which provides the affected local government's determination of compatibility:
(A) A LUCS shall be submitted with a Department application or required submittal information;
(B) The Department shall rely on an affirmative LUCS as a determination of compatibility with the acknowledged comprehensive plan unless otherwise obligated by statute;
(C) If the Department concludes a local government LUCS review and determination may not be legally sufficient, the Department may deny the permit application and provide notice to the applicant. In the alternative, when the applicant and local government express a willingness to reconsider the land use determination, the Department may hold the permit application in abeyance until the reconsideration is made;
(D) If the Department receives a LUCS which states that the proposed action is incompatible with the acknowledged comprehensive plan, the Department shall notify the applicant that the application cannot be processed;
(E) A local government may withdraw or modify its compatibility determination any time prior to the issuance of a permit;
(F) If more than one local government has jurisdiction related to a Department action, a LUCS review will be required from each affected local government;
(G) If a local government land use compatibility determination or underlying land use decision is appealed subsequent to the Department's receipt of the LUCS, the Department shall continue to process the action unless ordered otherwise by LUBA or a court of law stays or invalidates a local action;
(H) If a LUCS is successfully appealed after the Department has issued a permit, the Department may either proceed to revoke or suspend the permit or may decide to wait until the land use appeals process is exhausted.
(b) An applicant's submittal of a LUCS is required for the renewal or modification of the permits identified in OAR 340-018-0030 if the Department determines the permit involves a substantial modification or intensification of the permitted activity:
(A) Renewal permits require a LUCS if a permit renewal involves a modification that requires a LUCS under paragraph (B) of this subsection;
(B) Modification permits require a LUCS if:
(i) The permitted source or activity relates to the use of additional property or a physical expansion on the existing property. The LUCS applies to physical changes on the property not to existing permit conditions;
(ii) The permitted source or activity involves a significant increase in discharge to state waters or into the ground;
(iii) The permitted source or activity involves the relocation of an outfall outside of the source property;
(iv) For a major modification of an air contaminant discharge permit which means any physical change or change of operation of a source that results in a net significant emission rate increase as defined in OAR 340-020-0225(25).
(c) An applicant's submittal of evidence that a Department action has been reviewed by the affected local government and determined compatible with the local comprehensive plan;
(d) The Department provides notice to local government prior to initiating land use planning actions of statewide application, or notice to affected local governments prior to initiating an action of site-specific or area-wide application. Dispute resolution procedures pursuant to OAR 340-018-0060 are applied when the Department and local government disagree on plan compatibility;
(e) The Department provides notice to the affected local government of a Department land use action, which may include a request for local government action to assure local plan com-patibility with the Department's action.
Land Use Dispute Resolution
The Department's preference for resolving a dispute over land use compatibility is to work directly with local government until resolution is accomplished. In resolving a land use dispute, the Department shall consider one or more of the following mechanisms:
(1) Initiate meetings between the Department and affected local government to pursue resolution alternatives.
(2) Provide an application for a necessary local land use approval.
(3) Initiate an appeal of the local government's denial of land use approval.
(4) Submit a request for local land use approval at the local government's periodic review of its comprehensive plan.
(5) Request informal LCDC mediation in accord with OAR 660-030-0070.
(6) Proceed with an agency action and provide compliance with the statewide goals in accord with OAR 660-030-0065(3).
Statewide Goal Compliance and Acknowledged Plan Compatibility For New or Amended Rules and Programs Significantly Affecting Land Use
(1) New or amended rules and programs shall be evaluated in terms of compliance with ORS 197.180 and OAR Chapter 660, Division 30, with the exception of temporary rules.
(2) The Department shall determine if new or amended rules and programs affect land use pursuant to OAR 660-030-0075(2) and Section III, subsection (2) of the Department's State Agency Coordination Program document.
(3) Notice of new or amended rules and programs that affect land use shall be provided to DLCD and the land use mailing list and shall include the following information:
(a) Evidence that the rule or program is a land use program; or
(b) Evidence that the rule or program affects land use and is covered under the Department's certified State Agency Coordination Program; or
(c) Evidence that the rule or program is a land use program including an explanation of how goal compliance and plan compatibility will be assured.
Compliance with DLCD Permit Compliance and Compatibility Rule
The Department's Waste Tire Storage Permit is classified a Class B permit pursuant to OAR 660 Division 31. This permit is subject to the procedures of OAR 340-018-0040 and 340-018-0050 to assure statewide goal compliance and acknowledged plan compatibility.
Coordination with Affected State and Federal Agencies and Special Districts
The Department shall coordinate with the appropriate federal agencies and special districts on all rules and programs affecting land use as described in OAR 340-018-0030.
Cooperation with and Technical Assistance to Local Government
The Department is committed to cooperate with and provide local government with environmental quality technical assistance and data for local government land use planning purposes within Department funding and staffing capabilities.
(1) Cooperation and technical assistance may include but not be limited to the following:
(a) The provision of notice to local government of proposed rules and programs determined to affect land use;
(b) Participation in the periodic review, plan update or plan amendment process;
(c) The provision of environmental technical or scientific interpretative assistance and data.
(2) The Department's Intergovernmental Coordination Office is the initial contact point for local government. Department cooperation and assistance will be coordinated and provided as appropriate by the Department's division and region offices.
(3) The provisions and referenced provisions of this section shall apply to all local governments including those local governments recognized under the state's Coastal Zone Management Program.