ORS 196.825
Criteria for issuance of permit

  • conditions
  • consultation with public bodies
  • hearing
  • appeal

(1)

The Director of the Department of State Lands shall issue a permit applied for under ORS 196.815 (Application for permit) if the director determines that the project described in the application:

(a)

Is consistent with the protection, conservation and best use of the water resources of this state as specified in ORS 196.600 (Definitions for ORS 196.600 to 196.655) to 196.921 (Applicability); and

(b)

Would not unreasonably interfere with the paramount policy of this state to preserve the use of its waters for navigation, fishing and public recreation.

(2)

If the director issues a permit applied for under ORS 196.815 (Application for permit) to a person that proposes a removal or fill activity for construction or maintenance of a linear facility, and if that person is not a landowner or a person authorized by a landowner to conduct the proposed removal or fill activity on a property, then the person may not conduct removal or fill activity on that property until the person obtains:

(a)

The landowner’s consent;

(b)

A right, title or interest with respect to the property that is sufficient to undertake the removal or fill activity; or

(c)

A court order or judgment authorizing the use of the property.

(3)

In determining whether to issue a permit, the director shall consider all of the following:

(a)

The public need for the proposed fill or removal and the social, economic or other public benefits likely to result from the proposed fill or removal. When the applicant for a permit is a public body, the director may accept and rely upon the public body’s findings as to local public need and local public benefit.

(b)

The economic cost to the public if the proposed fill or removal is not accomplished.

(c)

The availability of alternatives to the project for which the fill or removal is proposed.

(d)

The availability of alternative sites for the proposed fill or removal.

(e)

Whether the proposed fill or removal conforms to sound policies of conservation and would not interfere with public health and safety.

(f)

Whether the proposed fill or removal is in conformance with existing public uses of the waters and with uses designated for adjacent land in an acknowledged comprehensive plan and land use regulations.

(g)

Whether the proposed fill or removal is compatible with the acknowledged comprehensive plan and land use regulations for the area where the proposed fill or removal is to take place or can be conditioned on a future local approval to meet this criterion.

(h)

Whether the proposed fill or removal is for streambank protection.

(i)

Whether the applicant has provided all practicable mitigation to reduce the adverse effects of the proposed fill or removal in the manner set forth in ORS 196.800 (Definitions for ORS 196.600 to 196.921). In determining whether the applicant has provided all practicable mitigation, the director shall consider the findings regarding wetlands set forth in ORS 196.668 (Legislative findings) and whether the proposed mitigation advances the policy objectives for the protection of wetlands set forth in ORS 196.672 (Policy).

(4)

The director may issue a permit for a project that results in a substantial fill in an estuary for a nonwater dependent use only if the project is for a public use and would satisfy a public need that outweighs harm to navigation, fishery and recreation and if the proposed fill meets all other criteria contained in ORS 196.600 (Definitions for ORS 196.600 to 196.655) to 196.921 (Applicability).

(5)

If the director issues a permit, the director may impose such conditions as the director considers necessary to carry out the purposes of ORS 196.805 (Policy) and 196.830 (Estuarine resource replacement as condition for fill or removal from estuary) and subsection (1) of this section and to provide mitigation for the reasonably expected adverse effects of project development. In formulating such conditions the director may request comment from public bodies, as defined in ORS 174.109 (“Public body” defined), federal agencies and tribal governments affected by the permit. Each permit is valid only for the time specified therein. The director shall impose, as conditions to any permit, general authorization or wetland conservation plan, measures to provide mitigation for the reasonably expected adverse effects of project development. Compensatory mitigation shall be limited to replacement of the functions and values of the impacted water resources of this state.

(6)

Intentionally left blank —Ed.

(a)

The director may request comment from interested parties and adjacent property owners on any application for a permit.

(b)

The director shall furnish to any person, upon written request and at the expense of the person who requests the copy, a copy of any application for a permit or authorization under this section or ORS 196.850 (Waiving permit requirement in certain cases).

(c)

For permit applications for a removal or fill activity for construction or maintenance of a linear facility that are deemed complete by the director, the director shall notify by first-class mail, electronic mail or electronic facsimile transmission all landowners whose land is identified in the permit application and all landowners whose land is adjacent to the property of a landowner whose land is identified in the permit application.

(7)

Any applicant whose application for a permit or authorization has been deemed incomplete or has been denied, or who objects to any of the conditions imposed under this section by the director, may, within 21 days of the denial of the permit or authorization or the imposition of any condition, request a hearing from the director. Thereupon the director shall set the matter down for hearing, which shall be conducted as a contested case in accordance with ORS 183.415 (Notice of right to hearing) to 183.430 (Hearing on refusal to renew license), 183.440 (Subpoenas in contested cases) to 183.460 (Examination of evidence by agency) and 183.470 (Orders in contested cases). After such hearing, the director shall enter an order containing findings of fact and conclusions of law. The order shall rescind, affirm or modify the director’s initial order. Appeals from the director’s final order may be taken to the Court of Appeals in the manner provided by ORS 183.482 (Jurisdiction for review of contested cases).

(8)

Except for a permit issued under the process set forth in ORS 517.952 (Definitions for ORS 517.952 to 517.989) to 517.989 (Rules applicable to consolidated application), the director shall:

(a)

Determine whether an application is complete within 30 days from the date the Department of State Lands receives the application. If the director determines that an application is complete, the director shall distribute the application for comment pursuant to subsection (5) of this section. If the director determines that the application is not complete, the director shall notify the applicant in writing that the application is deficient and explain, in the same notice, the deficiencies.

(b)

Issue a permit decision within 90 days after the date the director determines that the application is complete unless:

(A)

An extension of time is granted under subsection (10)(b) of this section;

(B)

The applicant and the director agree to a longer time period; or

(C)

The director determines that an extension is necessary to coordinate the issuance of a proprietary authorization decision for an ocean renewable energy facility under ORS 274.873 (Proprietary authorizations for ocean renewable energy facilities) and a removal or fill permit decision.

(9)

Permits issued under this section shall be in lieu of any permit or authorization that might be required for the same operation under ORS 164.775 (Deposit of trash within 100 yards of waters or in waters), 164.785 (Placing offensive substances in waters, on highways or other property), 468.020 (Rules and standards), 468.035 (Functions of department), 468.045 (Functions of director), 468.055 (Contracts with Oregon Health Authority), 468.060 (Enforcement of rules by local health authorities), 468.110 (Appeal), 468.120 (Public hearings), 468B.005 (Definitions for water pollution control laws) to 468B.030 (Effluent limitations) and 468B.048 (Rules for standards of quality and purity) to 468B.085 (Depositing vehicles or manufactured structures into water prohibited), so long as:

(a)

The operation is that for which the permit or authorization is issued; and

(b)

The standards for granting the permit or authorization are substantially the same as those established pursuant to ORS 164.775 (Deposit of trash within 100 yards of waters or in waters), 164.785 (Placing offensive substances in waters, on highways or other property), 468.020 (Rules and standards), 468.035 (Functions of department), 468.045 (Functions of director), 468.055 (Contracts with Oregon Health Authority), 468.110 (Appeal), 468.120 (Public hearings), 468B.005 (Definitions for water pollution control laws) to 468B.030 (Effluent limitations) and 468B.048 (Rules for standards of quality and purity) to 468B.085 (Depositing vehicles or manufactured structures into water prohibited) to the extent they affect water quality.

(10)

Intentionally left blank —Ed.

(a)

Any public body, as defined in ORS 174.109 (“Public body” defined), federal agency or tribal government requested by the director to comment on an application for a permit must submit its comments to the director not more than 30 days after receiving the request for comment. If a public body, federal agency or tribal government fails to comment on the application within 30 days, the director shall assume that the public body, federal agency or tribal government has no objection.

(b)

The Department of Environmental Quality shall provide comments to the director within 75 days after receiving notice under subsection (5) of this section if the permit action requires certification under the Federal Water Pollution Control Act (P.L. 92-500), as amended.

(11)

In determining whether to issue a permit, the director may consider only standards and criteria in effect on the date the director receives the completed application.

(12)

As used in this section:

(a)

“Applicant” means a landowner, a person authorized by a landowner to conduct a removal or fill activity or a person that proposes a removal or fill activity for construction or maintenance of a linear facility.

(b)

“Completed application” means a signed permit application form that contains all necessary information for the director to determine whether to issue a permit, including:

(A)

A map showing the project site with sufficient accuracy to easily locate the removal or fill site;

(B)

A project plan showing the project site and proposed alterations;

(C)

The fee required under ORS 196.815 (Application for permit);

(D)

Any changes that may be made to the hydraulic characteristics of waters of this state and a plan to minimize or avoid any adverse effects of those changes;

(E)

If the project may cause substantial adverse effects on aquatic life or aquatic habitat within this state, documentation of existing conditions and resources and identification of the potential impact if the project is completed;

(F)

An analysis of alternatives that evaluates practicable methods to minimize and avoid impacts to waters of this state;

(G)

If the project is to fill or remove material from wetlands, a wetlands mitigation plan; and

(H)

Any other information that the director deems pertinent and necessary to make an informed decision on whether the application complies with the policy and standards set forth in this section.

(c)

“Linear facility” includes any railway, highway, road, pipeline, water or sewer line, communication line, overhead or underground electrical transmission or distribution line or similar facility. [Formerly 541.625 and then 196.695; 1991 c.735 §25; 1993 c.741 §18; 1995 c.370 §1; 1995 c.472 §1; 2001 c.460 §2; 2001 c.516 §3; 2003 c.253 §§9,10; 2003 c.738 §§17a,18a; 2007 c.849 §§4,5; 2009 c.342 §2; 2009 c.343 §20; 2011 c.370 §1; 2015 c.386 §13]

Source: Section 196.825 — Criteria for issuance of permit; conditions; consultation with public bodies; hearing; appeal, https://www.­oregonlegislature.­gov/bills_laws/ors/ors196.­html.

Notes of Decisions

Evidence, that known fishery values of submerged Columbia River land proposed for fill appeared to be greater than speculative economic benefits of proposed fill, was insufficient as matter of law to support issuance of permit for fill. Moe v. Division of State Lands, 31 Or App 3, 569 P2d 675 (1977)

Evidence was sufficient to support finding by Division of State Lands that public interest in best use of water resources was better served by retaining petitioner’s salt marsh in unimproved state, rather than permitting petitioner to fill 32 acres of marsh in order to construct recreational complex. Saxon v. Division of State Lands, 31 Or App 511, 570 P2d 1197 (1977)

This section, together with [former] ORS 541.610 and rules promulgated by Division of State Lands, established identifiable standards for determining best use of petitioner’s land adjoining salt marsh. Saxon v. Division of State Lands, 31 Or App 511, 570 P2d 1197 (1977)

Division’s rule that landfill projects are permissible only if for water-related purposes is consistent with legislative directive of this section that landfill projects may not “unreasonably interfere” with preservation of waters for navigation, fishery and recreational use. Morse v. Division of State Lands, 31 Or App 1309, 572 P2d 1075 (1977), Sup Ct review denied

Director of Division of State Lands lacked authority to issue estuarian land fill permit for purpose of extending municipal airport runway, in absence of finding that public need for airport enlargement outweighed detriment to use of waters for navigation, fishing and recreational purposes. Morse v. Oregon Division of State Lands, 285 Or 197, 590 P2d 709 (1979)

Where Director of Division of State Lands failed to make findings relating to public need for dike, order granting permit to maintain dike across tidal slough was reversed. 1000 Friends v. Div. of State Lands, 46 Or App 425, 611 P2d 1177 (1980), Sup Ct review denied

Statutory scheme does not require division to determine what is the best use in given instance; it does require that uses enumerated in [former] ORS 541.610 be considered and that division find that proposed removal is not inconsistent with any one or more of them. Kalmiopsis Audubon Soc. v. Division of State Lands, 66 Or App 810, 676 P2d 885 (1984)

Directive to consider alternatives to project for which fill or removal is proposed requires consideration of development facilitated by proposed fill or removal. Examilotis v. Department of State Lands, 239 Or App 522, 244 P3d 880 (2010)

Department of State Lands may consider only project impacts associated with application’s fill and removal components. Examilotis v. Department of State Lands, 239 Or App 522, 244 P3d 880 (2010)

Where port applied to Department of State Lands for dredge project permit necessary for proposed development at port, department was not required to consider post-construction operational effects when determining whether to issue fill/removal permit because “project” as used in subsection (1) of this section refers to development that involves removal or fill activity, not to ongoing operations once development is complete. Coos Waterkeeper v. Port of Coos Bay, 284 Or App 620, 395 P3d 14 (2017), aff’d 363 Or 354, 423 P3d 60 (2018)

If Department of State Lands determines that proposed fill will interfere with “paramount policy of this state to preserve the use of its waters for navigation, fishing and public recreation,” department must then weigh interference against public-benefit considerations. Citizens for Responsible Dev. in The Dalles v. Wal-Mart Stores, Inc., 366 Or 272, 461 P3d 956 (2020)

Attorney General Opinions

Lessee filling tidelands as requiring a permit, public rights and conditions for issuance of permits, (1971) Vol 35, p 844

Law Review Citations

4 EL 353-354 (1974)

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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