State Waters and Ocean Resources
ORS
196.921
Applicability
- rules
(1)
Nothing in ORS 196.600 (Definitions for ORS 196) to 196.921 (Applicability) applies to filling the beds of the waters of this state for the purpose of constructing, operating and maintaining dams or other diversions for which permits or certificates have been or shall be issued under ORS chapter 537 or 539 and for which preliminary permits or licenses have been or shall be issued under ORS 543.010 (Definitions for ORS 543) to 543.610 (Acquisition of project by state or municipality).(2)
Nothing in ORS 196.600 (Definitions for ORS 196) to 196.921 (Applicability) applies to removal of materials from the beds or banks or filling of the waters of a nonnavigable natural waterway, or any portion thereof, in this state, if:(a)
Such waterway or portion is situated within forestland; and(b)
Such removal or filling is directly connected with a forest management practice conducted in accordance with ORS 527.610 (Short title) to 527.770 (Good faith compliance with best management practices not violation of water quality standards), 527.990 (Criminal penalties) and 527.992 (Civil penalties).(3)
Nothing in ORS 196.800 (Definitions for ORS 196) to 196.900 (Schedule of civil penalties) applies to removal or filling, or both, on converted wetlands for normal farming and ranching activities such as plowing, grazing, seeding, planting, cultivating, conventional crop rotation or harvesting.(4)
Nothing in ORS 196.800 (Definitions for ORS 196) to 196.900 (Schedule of civil penalties) applies to removal or filling, or both, on lands zoned for exclusive farm use as described in ORS 215.203 (Zoning ordinances establishing exclusive farm use zones) for the following activities:(a)
Drainage or maintenance of farm or stock ponds; or(b)
Maintenance of farm roads in such a manner as to not significantly adversely affect wetlands or any other waters of this state.(5)
Nothing in ORS 196.800 (Definitions for ORS 196) to 196.900 (Schedule of civil penalties) applies to removal or filling, or both, for subsurface drainage by deep ripping, tiling or moling on converted wetlands that are zoned for exclusive farm use pursuant to ORS 215.203 (Zoning ordinances establishing exclusive farm use zones).(6)
Nothing in ORS 196.800 (Definitions for ORS 196) to 196.900 (Schedule of civil penalties) applies to removal or filling, or both, for any activity defined as a farm use in ORS 215.203 (Zoning ordinances establishing exclusive farm use zones), on lands zoned for exclusive farm use pursuant to ORS 215.203 (Zoning ordinances establishing exclusive farm use zones), if the lands are converted wetlands that are also certified as prior converted cropland by the Natural Resources Conservation Service of the United States Department of Agriculture, or its successor agency, so long as commercial agricultural production on the land has not been abandoned for five or more years.(7)
Nothing in ORS 196.800 (Definitions for ORS 196) to 196.900 (Schedule of civil penalties) applies to removal or filling, or both, for the reestablishment of crops under federal conservation reserve program provisions set forth in 16 U.S.C. 3831 as in effect on January 1, 2010.(8)
The exemptions in subsections (3) to (7) of this section do not apply to any fill or removal that involves changing an area of wetlands to a nonfarm use.(9)
Nothing in ORS 196.800 (Definitions for ORS 196) to 196.900 (Schedule of civil penalties) applies to removal or filling, or both, for the maintenance or reconstruction of structures such as dikes, dams, levees, groins, riprap, tidegates, drainage ditches, irrigation ditches and tile drain systems, provided that:(a)
The structure was serviceable within the past five years; and(b)
Such maintenance or reconstruction would not significantly adversely affect wetlands or other waters of this state to a greater extent than the wetlands or waters of this state were affected as a result of the original construction of those structures.(10)
Nothing in ORS 196.800 (Definitions for ORS 196) to 196.900 (Schedule of civil penalties) applies to removal or filling, or both, for maintenance, including emergency reconstruction of recently damaged parts, of currently serviceable roads or transportation structures such as groins and riprap protecting roads, causeways and bridge abutments or approaches.(11)
Nothing in ORS 196.600 (Definitions for ORS 196) to 196.921 (Applicability) applies to removal or filling, or both, within the beds or banks of any waters of this state conducted as part of a surface mining operation, that is the subject of a memorandum of agreement between the Department of State Lands and the State Department of Geology and Mineral Industries in which the State Department of Geology and Mineral Industries is assigned sole responsibility for permitting as described in ORS 517.797 (Memorandum of agreement with Department of State Lands regarding permitting).(12)
The Department of State Lands may adopt a rule that exempts from the requirement to obtain a permit under ORS 196.800 (Definitions for ORS 196) to 196.900 (Schedule of civil penalties) voluntary habitat restoration projects that have only minimal adverse impact on waters of this state.(13)
Nothing in ORS 196.800 (Definitions for ORS 196) to 196.900 (Schedule of civil penalties) applies to removal or filling, or both, for a change in the point of diversion to withdraw surface water for beneficial use if the change in the point of diversion is necessitated by a change in the location of the surface water and authorized by the Water Resources Department.(14)
Unless otherwise provided in a proposed order or in a final order issued in a contested case, nothing in ORS 196.800 (Definitions for ORS 196) to 196.900 (Schedule of civil penalties) applies to removal or filling, or both, originally intended or subsequently used for the establishment, repair, restoration, resumption or replacement of the following uses, if the use was established on or before January 1, 2017, on lands zoned for exclusive farm use, forest use or mixed farm and forest use:(a)
A dwelling:(A)
Described in ORS 215.213 (Uses permitted in exclusive farm use zones in counties that adopted marginal lands system prior to 1993) (1) or (3) or 215.283 (Uses permitted in exclusive farm use zones in nonmarginal lands counties) (1);(B)
Established subject to county approval under ORS 215.402 (Definitions for ORS 215) to 215.438 (Transmission towers); or(C)
Lawfully established on or before December 31, 1973;(b)
An agricultural building as defined in ORS 455.315 (Exemption of agricultural buildings, agricultural grading, equine facilities and dog training facilities); or(c)
Activities that:(A)
Are associated with a dwelling or agricultural building described in this subsection;(B)
Have received county approval, if necessary, under ORS 215.402 (Definitions for ORS 215) to 215.438 (Transmission towers); and(C)
Are located on the same lot or parcel as the dwelling or agricultural building.(15)
Nothing in ORS 196.800 (Definitions for ORS 196) to 196.921 (Applicability) applies to removal or filling, or both, as part of a voluntary project for stream restoration and habitat improvement authorized by the State Department of Fish and Wildlife under ORS 496.266 (Environmental restoration weirs).(16)
As used in this section:(a)
“Converted wetlands” means agriculturally managed wetlands that, on or before June 30, 1989, were brought into commercial agricultural production by diking, draining, leveling, filling or any similar hydrologic manipulation and by removal or manipulation of natural vegetation, and that are managed for commercial agricultural purposes.(b)
“Converted wetlands” does not include any stream, slough, ditched creek, spring, lake or any other waters of this state that are located within or adjacent to a converted wetland area.(c)
“Replacement” means the construction of a new structure that is substantially similar in size, sited in a substantially similar location and constructed in place of a previously existing structure. [Formerly 196.905; 2021 c.63 §4]Notes of Decisions
“Maintenance” of farm road includes additional filling necessary to restore recently lost function of existent road, whether or not road is in serviceable condition at time of work. Owen v. Division of State Lands, 189 Or App 466, 76 P3d 158 (2003)
Both listed activity and corresponding removal or filling must occur on “converted wetlands” or “exclusive farm use zoned lands.” Bridgeview Vineyards, Inc. v. State Land Board, 211 Or App 251, 154 P3d 734 (2007), Sup Ct review denied
“Structure” means waterway that is excavated or designed to remove water, not waterway that is naturally created. Gienger v. Department of State Lands, 230 Or App 178, 214 P3d 75 (2009), Sup Ct review denied