ORS 196.860
Enforcement powers of director


(1)

If the Director of the Department of State Lands determines that material is being removed from or filling is occurring in any of the waters of this state without a permit issued under ORS 196.825 (Criteria for issuance of permit), or in a manner contrary to the conditions set out in the permit, or in a manner contrary to the conditions set out in an order approving a wetland conservation plan, the director may:

(a)

Investigate, hold hearings, make orders and take action, as provided in ORS 196.600 (Definitions for ORS 196.600 to 196.655) to 196.921 (Applicability), as soon as possible.

(b)

For the purpose of investigating conditions relating to the removal or filling, through the employees or the duly authorized representatives of the Department of State Lands, enter at reasonable times upon any private or public property.

(c)

Conduct public hearings in accordance with ORS chapter 183.

(d)

Publish findings and recommendations as they are developed relative to public policies and procedures necessary for the correction of conditions or violations of ORS 196.600 (Definitions for ORS 196.600 to 196.655) to 196.921 (Applicability).

(e)

Give notice of any proposed order relating to a violation by personal service or by mailing the notice by registered or certified mail to the person affected. Any person aggrieved by a proposed order of the director may request a hearing within 20 days of the date of personal service or mailing of the notice. Hearings shall be conducted under the provisions of ORS chapter 183 applicable to contested cases, and judicial review of final orders shall be conducted in the Court of Appeals according to ORS 183.482 (Jurisdiction for review of contested cases). If no hearing is requested or if the party fails to appear, a final order shall be issued upon a prima facie case on the record of the agency.

(f)

Take appropriate action for the enforcement of any rules or final orders. Any violation of ORS 196.600 (Definitions for ORS 196.600 to 196.655) to 196.921 (Applicability) or of any rule or final order of the director under ORS 196.600 (Definitions for ORS 196.600 to 196.655) to 196.921 (Applicability) may be enjoined in civil abatement proceedings brought in the name of the State of Oregon. In any such proceedings the director may seek and the court may award a sum of money sufficient to compensate the public for any destruction or infringement of any public right of navigation, fishery or recreation resulting from the violation. Proceedings thus brought by the director shall set forth if applicable the dates of notice and hearing and the specific rule or order of the director, together with the facts of noncompliance, the facts giving rise to the public nuisance, and a statement of the damages to any public right of navigation, fishery or recreation, if any, resulting from the violation.

(2)

Intentionally left blank —Ed.

(a)

In addition to the administrative action the director may take under subsection (1) of this section, the director may enter an order requiring any person to cease and desist from any violation if the director determines that the violation presents an imminent and substantial risk of injury, loss or damage to water resources.

(b)

An order under this subsection:

(A)

May be entered without prior notice or hearing.

(B)

Shall be served upon the person by personal service or by registered or certified mail.

(C)

Shall state that a hearing will be held on the order if a written request for hearing is filed by the person subject to the order within 10 days after receipt of the order.

(D)

May not be stayed during the pendency of a hearing conducted under paragraph (c) of this subsection.

(c)

If a person subject to an order under this subsection files a timely demand for hearing, the director shall hold a contested case hearing according to the applicable provisions of ORS chapter 183. If the person fails to request a hearing, the order shall be entered as a final order upon prima facie case made on the record of the agency.

(d)

Neither the director nor any duly authorized representative of the department shall be liable for any damages a person may sustain as a result of a cease and desist order issued under this subsection.

(e)

The state and local police shall cooperate in the enforcement of any order issued under this subsection and shall require no further authority or warrant in executing or enforcing the order. If any person fails to comply with an order issued under this subsection, the circuit court of the county in which the violation occurred or is threatened shall compel compliance with the director’s order in the same manner as with an order of that court.

(3)

As used in this section, “violation” means removing material from or placing fill in any of the waters of this state without a permit or in a manner contrary to the conditions set out in a permit issued under ORS 196.825 (Criteria for issuance of permit). [Formerly 541.650 and then 196.725; 2007 c.71 §66; 2007 c.849 §16]

Source: Section 196.860 — Enforcement powers of director, https://www.­oregonlegislature.­gov/bills_laws/ors/ors196.­html.

Notes of Decisions

Traditional rules of equity apply to court’s enforcement powers under this section, so trial court may balance equities in fashioning its remedies. State ex rel Cox v. Davidson Ind., 291 Or 839, 635 P2d 630 (1981)

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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