ORS 390.835
Highest and best use of waters within scenic waterways
- prohibitions
- authority of various agencies
- water rights
- conditions
- recreational prospecting
- placer mining
(1)
It is declared that the highest and best uses of the waters within scenic waterways are recreation, fish and wildlife uses. The free-flowing character of these waters shall be maintained in quantities necessary for recreation, fish and wildlife uses. No dam, or reservoir, or other water impoundment facility shall be constructed on waters within scenic waterways. No water diversion facility shall be constructed or used except by right previously established or as permitted by the Water Resources Commission, upon a finding that such diversion is necessary to uses designated in ORS 536.310 (Purposes and policies to be considered in formulating state water resources program) (12), and in a manner consistent with the policies set forth under ORS 390.805 (Definitions for ORS 390.805 to 390.925) to 390.925 (Enforcement). The Water Resources Commission shall administer and enforce the provisions of this subsection.(2)
Filling of the beds or removal of material from or other alteration of the beds or banks of scenic waterways for purposes other than recreational prospecting not requiring a permit shall be prohibited, except as permitted by the Director of the Department of State Lands upon a finding that such activity would be consistent with the policies set forth under ORS 390.805 (Definitions for ORS 390.805 to 390.925) to 390.925 (Enforcement) for scenic waterways and in a manner consistent with the policies set forth under ORS 196.800 (Definitions for ORS 196.600 to 196.921) to 196.825 (Criteria for issuance of permit) and 196.845 (Investigations and surveys) to 196.870 (Abatement proceedings) for removal of material from the beds and banks and filling of any waters of this state. The Director of the Department of State Lands shall administer and enforce the provisions of this subsection.(3)
Intentionally left blank —Ed.(a)
Upon a finding of emergency circumstances, the Director of the Department of State Lands may issue a temporary permit for the removal, filling or alteration of the beds or banks within a scenic waterway. The temporary permit shall include conditions developed after consultation with the State Department of Fish and Wildlife and the State Parks and Recreation Department.(b)
As used in this subsection, “emergency circumstances” exist if prompt action is necessary to prevent irreparable harm, injury or damage to persons or property.(4)
Any person adversely affected or aggrieved by the grant or denial of a permit under subsection (2) or (3) of this section may appeal in accordance with the procedure set forth in ORS 196.835 (Hearing regarding issuance of permit).(5)
Nothing in ORS 390.805 (Definitions for ORS 390.805 to 390.925) to 390.925 (Enforcement) affects the authority of the State Fish and Wildlife Commission to construct facilities or make improvements to facilitate the passage or propagation of fish or to exercise other responsibilities in managing fish and wildlife resources. Nothing in ORS 390.805 (Definitions for ORS 390.805 to 390.925) to 390.925 (Enforcement) affects the authority of the Water Resources Commission to construct and maintain stream gauge stations and other facilities related to the commission’s duties in administration of the water laws.(6)
Upon a finding of necessity under subsection (1) of this section, the Water Resources Commission may issue a water right for human consumption not to exceed 0.005 cubic feet per second per household, or livestock consumption uses not to exceed one-tenth of one cubic foot per second per 1,000 head of livestock, as designated in ORS 536.310 (Purposes and policies to be considered in formulating state water resources program) (12) within or above a scenic waterway if the Water Resources Commission makes the following findings:(a)
That issuing the water right does not significantly impair the free-flowing character of these waters in quantities necessary for recreation, fish and wildlife.(b)
That issuing the water right is consistent with provisions pertaining to water appropriation and water rights under ORS chapters 536 and 537 and rules adopted thereunder.(c)
That construction, operation and maintenance of the diversion system will be carried out in a manner consistent with the purposes set forth in ORS 390.805 (Definitions for ORS 390.805 to 390.925) to 390.925 (Enforcement).(d)
If the water right is for human consumption, an additional finding that:(A)
The applicant cannot reasonably obtain water from any other source;(B)
Denial of the water right would result in loss of reasonable expectations for use of the property; and(C)
The system installed to divert water shall include monitoring equipment to permit water use measurement and reporting.(e)
If the water right is for livestock consumption, an additional finding that:(A)
The right is necessary to prevent the livestock from watering in or along the stream bed;(B)
The applicant cannot reasonably obtain water from any other source; and(C)
The applicant has excluded livestock from the stream and its adjacent riparian zone.(7)
In making the findings required under subsection (6) of this section, the Water Resources Commission shall consider the existing or potential cumulative impacts of issuing the water right.(8)
The Water Resources Commission may not allow human consumption and livestock uses authorized under subsection (6) of this section in excess of a combined cumulative total of one percent of the average daily flow or one cubic foot per second, whichever is less, unless:(a)
The Water Resources Commission, the State Parks and Recreation Department, the State Department of Fish and Wildlife, the Department of Environmental Quality and the Department of State Lands unanimously agree to exceed that amount; and(b)
Exceeding that amount will not significantly impair the free-flowing character of these waters in quantities necessary for recreation, fish and wildlife.(9)
Intentionally left blank —Ed.(a)
The provisions of this section shall not apply to a water right application for the use of ground water as defined in ORS 537.515 (Definitions for ORS 537.505 to 537.795 and 537.992), except upon a finding by the Water Resources Director based on a preponderance of evidence that the use of ground water will measurably reduce the surface water flows necessary to maintain the free-flowing character of a scenic waterway in quantities necessary for recreation, fish and wildlife.(b)
The Water Resources Department shall review every application for the use of ground water to determine whether to make the finding specified in paragraph (a) of this subsection. The finding shall be based upon the application of generally accepted hydrogeologic methods using relevant and available field information concerning the proposed use.(c)
In making the determination required by paragraph (a) of this subsection, the Water Resources Department shall consider the timing of projected impacts of the proposed use in relation to other factors, including but not limited to: Changing climate, recharge, incidental precipitation, out-of-stream appropriations and return flows.(d)
If the Water Resources Director makes the finding specified in paragraph (a) of this subsection, the Water Resources Director shall issue an order denying the application unless:(A)
Mitigation is provided in accordance with subsection (10) of this section; or(B)
The applicant submits evidence to overcome the finding under paragraph (a) of this subsection.(e)
Except as provided under subsection (13) of this section, if the Water Resources Director does not make the finding specified in paragraph (a) of this subsection, the Water Resources Director shall issue an order approving the application if the application otherwise meets the requirements of ORS 537.505 (Short title) to 537.795 (ORS 537.505 to 537.795 supplementary).(f)
A protest of any order issued under this subsection may be filed in the same manner as a protest on any application for a right to appropriate ground water.(g)
Each water right permit and certificate for appropriation of ground water issued after July 19, 1995, for which a source of appropriation is within or above a scenic waterway shall be conditioned to allow the regulation of the use if analysis of data available after the permit or certificate is issued discloses that the appropriation will measurably reduce the surface water flows necessary to maintain the free-flowing character of a scenic waterway in quantities necessary for recreation, fish and wildlife in effect as of the priority date of the right or as those quantities may be subsequently reduced.(h)
Nothing in this subsection shall limit the use of ground water for a use exempted under ORS 537.545 (Exempt uses).(10)
The Water Resources Commission or Water Resources Director shall consider mitigation measures and may include mitigation measures as conditions in any water right permit or certificate to ensure the maintenance of the free-flowing character of the scenic waterway in quantities necessary for recreation, fish and wildlife.(11)
The Water Resources Commission and the Water Resources Director shall carry out their responsibilities under ORS 536.220 (Policy on water resources generally) to 536.590 (Rights acquired prior to January 1, 1956, not affected) with respect to the waters within scenic waterways in conformity with the provisions of this section.(12)
As used in this section, “measurably reduce” means that the use authorized under subsection (9) of this section will individually or cumulatively reduce surface water flows within the scenic waterway in excess of a combined cumulative total of one percent of the average daily flow or one cubic foot per second, whichever is less, unless:(a)
The Water Resources Department, the State Parks and Recreation Department, the State Department of Fish and Wildlife, the Department of Environmental Quality and the Department of State Lands unanimously agree to exceed that amount; and(b)
Exceeding that amount will not significantly impair the free-flowing character of these waters in quantities necessary for recreation, fish and wildlife.(13)
Before authorizing an appropriation that will reduce streamflows within a scenic waterway in amounts up to but not exceeding the amounts described in subsection (12) of this section, the Water Resources Director shall find:(a)
That the appropriation will not significantly impair the free-flowing character of these waters in quantities necessary for recreation, fish and wildlife.(b)
That the appropriation is consistent with provisions pertaining to water appropriations and water rights under ORS chapters 536 and 537 and the rules adopted thereunder.(c)
That construction, operation and maintenance of the appropriation will be carried out in a manner consistent with the purposes set forth in ORS 390.805 (Definitions for ORS 390.805 to 390.925) to 390.925 (Enforcement).(14)
No placer mining shall be permitted on waters within scenic waterways other than recreational placer mining.(15)
No person shall be required to obtain a permit for recreational prospecting resulting in the fill, removal or other alteration of 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 scenic waterway in a single year. Recreational prospecting shall not occur at any site where fish eggs are present.(16)
No provision of this section shall be construed to exempt recreational placer mining on a scenic waterway, other than recreational prospecting not requiring a permit, from compliance with the provisions of ORS 196.800 (Definitions for ORS 196.600 to 196.921) to 196.825 (Criteria for issuance of permit) and 196.845 (Investigations and surveys) to 196.870 (Abatement proceedings) or rules adopted pursuant to ORS 196.800 (Definitions for ORS 196.600 to 196.921) to 196.825 (Criteria for issuance of permit) and 196.845 (Investigations and surveys) to 196.870 (Abatement proceedings).(17)
Recreational placer mining, other than recreational prospecting not requiring a permit, shall not:(a)
Dam or divert a waterway or obstruct fish passage;(b)
Include nozzling, sluicing or digging outside the wet perimeter of the stream, nor extend the wet perimeter;(c)
Include movement of boulders, logs, stumps or other woody material from the wet perimeter other than movement by hand and nonmotorized equipment;(d)
Involve the disturbance of rooted or embedded woody plants, including trees and shrubs, regardless of their location;(e)
Include excavation from the streambank;(f)
Fail to level pits, piles, furrows or potholes outside the main channel of the waterway upon leaving the site;(g)
Include operation of a suction dredge without a suction dredge waste discharge permit from the Department of Environmental Quality including, but not limited to, a prohibition against dredging during periods when fish eggs could be in the dredging site gravel;(h)
Be conducted on federal lands except as allowed by agencies of the federal government;(i)
Impede boating;(j)
Include operation of a dredge between the hours of 6 p.m. and 8 a.m. within 500 feet of a residence or within 500 feet of a campground except within a federally designated recreational mining site; or(k)
Include operation of a dredge within the marked or posted swimming area of a designated campground or day use area except within a federally designated recreational mining site.(18)
As used in this section:(a)
“Bed” means the land within the wet perimeter and any adjacent nonvegetated dry gravel bar.(b)
“Prospecting” means to search or explore for samples of gold, silver or other precious minerals, using nonmotorized methods, from among small quantities of aggregate.(c)
“Recreational placer mining” includes, but is not limited to, the use of nonmotorized equipment and motorized surface dredges having an intake nozzle with an inside diameter not exceeding four inches, a motor no larger than 16 horsepower and a muffler meeting or exceeding factory-installed noise reduction standards. “Recreational placer mining” does not include recreational prospecting that does not require a permit.(d)
“Wet perimeter” means the area of the stream that is underwater, or is exposed as a nonvegetated dry gravel bar island surrounded on all sides by actively moving water at the time the activity occurs. [1971 c.1 §4; 1973 c.756 §1; 1977 c.671 §2; 1985 c.673 §177; 1989 c.320 §1; 1993 c.99 §1; 1995 c.223 §1; 1995 c.719 §1; 1997 c.223 §1; 1997 c.478 §1; 2001 c.499 §1](2)
Filling of the beds or removal of material from or other alteration of the beds or banks of scenic waterways for purposes other than recreational prospecting not requiring a permit shall be prohibited, except as permitted by the Director of the Department of State Lands upon a finding that such activity would be consistent with the policies set forth under ORS 390.805 (Definitions for ORS 390.805 to 390.925) to 390.925 (Enforcement) for scenic waterways and in a manner consistent with the policies set forth under ORS 196.800 (Definitions for ORS 196.600 to 196.921) to 196.825 (Criteria for issuance of permit) and 196.845 (Investigations and surveys) to 196.870 (Abatement proceedings) for removal of material from the beds and banks and filling of any waters of this state. The Director of the Department of State Lands shall administer and enforce the provisions of this subsection.(3)
Intentionally left blank —Ed.(a)
Upon a finding of emergency circumstances, the Director of the Department of State Lands may issue a temporary permit for the removal, filling or alteration of the beds or banks within a scenic waterway. The temporary permit shall include conditions developed after consultation with the State Department of Fish and Wildlife and the State Parks and Recreation Department.(b)
As used in this subsection, “emergency circumstances” exist if prompt action is necessary to prevent irreparable harm, injury or damage to persons or property.(4)
Any person adversely affected or aggrieved by the grant or denial of a permit under subsection (2) or (3) of this section may appeal in accordance with the procedure set forth in ORS 196.835 (Hearing regarding issuance of permit).(5)
Nothing in ORS 390.805 (Definitions for ORS 390.805 to 390.925) to 390.925 (Enforcement) affects the authority of the State Fish and Wildlife Commission to construct facilities or make improvements to facilitate the passage or propagation of fish or to exercise other responsibilities in managing fish and wildlife resources. Nothing in ORS 390.805 (Definitions for ORS 390.805 to 390.925) to 390.925 (Enforcement) affects the authority of the Water Resources Commission to construct and maintain stream gauge stations and other facilities related to the commission’s duties in administration of the water laws.(6)
Upon a finding of necessity under subsection (1) of this section, the Water Resources Commission may issue a water right for human consumption not to exceed 0.005 cubic feet per second per household, or livestock consumption uses not to exceed one-tenth of one cubic foot per second per 1,000 head of livestock, as designated in ORS 536.310 (Purposes and policies to be considered in formulating state water resources program) (12) within or above a scenic waterway if the Water Resources Commission makes the following findings:(a)
That issuing the water right does not significantly impair the free-flowing character of these waters in quantities necessary for recreation, fish and wildlife.(b)
That issuing the water right is consistent with provisions pertaining to water appropriation and water rights under ORS chapters 536 and 537 and rules adopted thereunder.(c)
That construction, operation and maintenance of the diversion system will be carried out in a manner consistent with the purposes set forth in ORS 390.805 (Definitions for ORS 390.805 to 390.925) to 390.925 (Enforcement).(d)
If the water right is for human consumption, an additional finding that:(A)
The applicant cannot reasonably obtain water from any other source;(B)
Denial of the water right would result in loss of reasonable expectations for use of the property; and(C)
The system installed to divert water shall include monitoring equipment to permit water use measurement and reporting.(e)
If the water right is for livestock consumption, an additional finding that:(A)
The right is necessary to prevent the livestock from watering in or along the stream bed;(B)
The applicant cannot reasonably obtain water from any other source; and(C)
The applicant has excluded livestock from the stream and its adjacent riparian zone.(7)
In making the findings required under subsection (6) of this section, the Water Resources Commission shall consider the existing or potential cumulative impacts of issuing the water right.(8)
The Water Resources Commission may not allow human consumption and livestock uses authorized under subsection (6) of this section in excess of a combined cumulative total of one percent of the average daily flow or one cubic foot per second, whichever is less, unless:(a)
The Water Resources Commission, the State Parks and Recreation Department, the State Department of Fish and Wildlife, the Department of Environmental Quality and the Department of State Lands unanimously agree to exceed that amount; and(b)
Exceeding that amount will not significantly impair the free-flowing character of these waters in quantities necessary for recreation, fish and wildlife.(9)
Intentionally left blank —Ed.(a)
The provisions of this section do not apply to a water right application for the use of ground water as defined in ORS 537.515 (Definitions for ORS 537.505 to 537.795 and 537.992), except upon a finding by the Water Resources Director based on a preponderance of evidence that the use of ground water will measurably reduce the surface water flows necessary to maintain the free-flowing character of a scenic waterway in quantities necessary for recreation, fish and wildlife.(b)
The Water Resources Department shall review every application for the use of ground water to determine whether to make the finding specified in paragraph (a) of this subsection. The finding shall be based upon the application of generally accepted hydrogeologic methods using relevant and available field information concerning the proposed use.(c)
In making the determination required by paragraph (a) of this subsection, the Water Resources Department shall consider the timing of projected impacts of the proposed use in relation to other factors, including but not limited to: Changing climate, recharge, incidental precipitation, out-of-stream appropriations and return flows.(d)
If the Water Resources Director makes the finding specified in paragraph (a) of this subsection, the Water Resources Director shall issue an order denying the application unless:(A)
Mitigation is provided in accordance with subsection (10) of this section; or(B)
The applicant submits evidence to overcome the finding under paragraph (a) of this subsection.(e)
Except as provided under subsection (13) of this section, if the Water Resources Director does not make the finding specified in paragraph (a) of this subsection, the Water Resources Director shall issue an order approving the application if the application otherwise meets the requirements of ORS 537.505 (Short title) to 537.795 (ORS 537.505 to 537.795 supplementary).(f)
A protest of any order issued under this subsection may be filed in the same manner as a protest on any application for a right to appropriate ground water.(g)
Each water right permit and certificate for appropriation of ground water issued after July 19, 1995, for which a source of appropriation is within or above a scenic waterway shall be conditioned to allow the regulation of the use if analysis of data available after the permit or certificate is issued discloses that the appropriation will measurably reduce the surface water flows necessary to maintain the free-flowing character of a scenic waterway in quantities necessary for recreation, fish and wildlife in effect as of the priority date of the right or as those quantities may be subsequently reduced.(h)
This subsection does not limit the use of ground water for a use exempted under ORS 537.545 (Exempt uses).(10)
The Water Resources Commission or Water Resources Director shall consider mitigation measures and may include mitigation measures as conditions in any water right permit or certificate to ensure the maintenance of the free-flowing character of the scenic waterway in quantities necessary for recreation, fish and wildlife.(11)
The Water Resources Commission and the Water Resources Director shall carry out their responsibilities under ORS 536.220 (Policy on water resources generally) to 536.590 (Rights acquired prior to January 1, 1956, not affected) with respect to the waters within scenic waterways in conformity with the provisions of this section.(12)
As used in this section, “measurably reduce” means that the use authorized under subsection (9) of this section will individually or cumulatively reduce surface water flows within the scenic waterway in excess of a combined cumulative total of one percent of the average daily flow or one cubic foot per second, whichever is less, unless:(a)
The Water Resources Department, the State Parks and Recreation Department, the State Department of Fish and Wildlife, the Department of Environmental Quality and the Department of State Lands unanimously agree to exceed that amount; and(b)
Exceeding that amount will not significantly impair the free-flowing character of these waters in quantities necessary for recreation, fish and wildlife.(13)
Before authorizing an appropriation that will reduce streamflows within a scenic waterway in amounts up to but not exceeding the amounts described in subsection (12) of this section, the Water Resources Director shall find:(a)
That the appropriation will not significantly impair the free-flowing character of these waters in quantities necessary for recreation, fish and wildlife.(b)
That the appropriation is consistent with provisions pertaining to water appropriations and water rights under ORS chapters 536 and 537 and the rules adopted thereunder.(c)
That construction, operation and maintenance of the appropriation will be carried out in a manner consistent with the purposes set forth in ORS 390.805 (Definitions for ORS 390.805 to 390.925) to 390.925 (Enforcement).(14)
Placer mining is not permitted on waters within scenic waterways, other than recreational placer mining.(15)
A person may not be required to obtain a permit for recreational prospecting or other nonmotorized recreational activity resulting in the fill, removal or other alteration of 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 scenic waterway in a single year. Recreational prospecting shall not occur at any site where fish eggs are present.(16)
This section does not exempt recreational placer mining on a scenic waterway, other than recreational prospecting not requiring a permit, from compliance with the provisions of ORS 196.800 (Definitions for ORS 196.600 to 196.921) to 196.825 (Criteria for issuance of permit) and 196.845 (Investigations and surveys) to 196.870 (Abatement proceedings) or rules adopted pursuant to ORS 196.800 (Definitions for ORS 196.600 to 196.921) to 196.825 (Criteria for issuance of permit) and 196.845 (Investigations and surveys) to 196.870 (Abatement proceedings).(17)
Recreational placer mining may not:(a)
Dam or divert a waterway or obstruct fish passage;(b)
Include nozzling, sluicing or digging outside the wet perimeter of the stream, nor extend the wet perimeter;(c)
Include movement of boulders, logs, stumps or other woody material from the wet perimeter other than movement by hand and nonmotorized equipment;(d)
Involve the disturbance of rooted or embedded woody plants, including trees and shrubs, regardless of their location;(e)
Include excavation from the streambank;(f)
Fail to level pits, piles, furrows or potholes outside the main channel of the waterway upon leaving the site;(g)
Include operation of a suction dredge without a suction dredge waste discharge permit from the Department of Environmental Quality including, but not limited to, a prohibition against dredging during periods when fish eggs could be in the dredging site gravel;(h)
Be conducted on federal lands except as allowed by agencies of the federal government;(i)
Impede boating;(j)
Include operation of a dredge between the hours of 6 p.m. and 8 a.m. within 500 feet of a residence or within 500 feet of a campground except within a federally designated recreational mining site; or(k)
Include operation of a dredge within the marked or posted swimming area of a designated campground or day use area except within a federally designated recreational mining site.(18)
As used in this section:(a)
“Bed” means the land within the wet perimeter and any adjacent nonvegetated dry gravel bar.(b)
“Prospecting” means to search or explore for samples of gold, silver or other precious minerals, using nonmotorized methods, from among small quantities of aggregate.(c)
“Recreational placer mining” includes, but is not limited to, the use of nonmotorized equipment and motorized surface dredges having an intake nozzle with an inside diameter not exceeding four inches, a motor no larger than 16 horsepower and a muffler meeting or exceeding factory-installed noise reduction standards. “Recreational placer mining” does not include recreational prospecting that does not require a permit.(d)
“Wet perimeter” means the area of the stream that is underwater, or is exposed as a nonvegetated dry gravel bar island surrounded on all sides by actively moving water at the time the activity occurs.
Source:
Section 390.835 — Highest and best use of waters within scenic waterways; prohibitions; authority of various agencies; water rights; conditions; recreational prospecting; placer mining, https://www.oregonlegislature.gov/bills_laws/ors/ors390.html.
Notes of Decisions
Where petitioner challenges Water Resources Commission’s temporary rule amending OAR 690-80-060 (5)(c), Commission’s findings and statement of need do not provide adequate support for promulgation of temporary rule and rule was therefore adopted without compliance with applicable rulemaking procedures and violates Scenic Waterways Act. Waterwatch of Oregon v. Oregon Water Res. Comm., 97 Or App 1, 774 P2d 1118 (1989)
“Mitigation” must be designed to fully offset ground water appropriation impacts on surface flows. WaterWatch v. Water Resources Commission, 199 Or App 598, 112 P3d 443 (2005)
Attorney General Opinions
Whether federal designation of portion of John Day River as scenic would supersede state law, (1977) Vol 38, p 1321; definition of “placer mining,” (1982) Vol 42, p 213; prohibition on placer mining in scenic waterways, (1994) Vol 47, p 84
Law Review Citations
19 EL 860 (1989); 36 EL 1125 (2006)
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