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]
Note: Operation of the amendments to 390.835 (Highest and best use of waters within scenic waterways) by section 8, chapter 516, Oregon Laws 2001, is dependent upon further approval by the Legislative Assembly. See section 11, chapter 516, Oregon Laws 2001. The text that is operative after that approval is set forth for the user’s convenience.
390.835 (Highest and best use of waters within scenic waterways). (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. A dam, reservoir or other water impoundment facility may not be constructed on waters within scenic waterways. A water diversion facility may not 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 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.
Note: Sections 3 and 4, chapter 499, Oregon Laws 2001, provide:
Sec. 3. In order to make recommendations to better achieve the objectives and enhance the effectiveness of the Oregon Scenic Waterways System, the State Parks and Recreation Department shall complete a review of the system administered under ORS 390.805 (Definitions for ORS 390.805 to 390.925) to 390.925 (Enforcement), including a review of the studies pertaining to the effects of recreational placer mining within scenic waterways. At the request of the State Parks and Recreation Department, the Department of State Lands, the Water Resources Department, the State Department of Fish and Wildlife, the State Marine Board and the Department of Environmental Quality shall assist in the review. The State Parks and Recreation Department may also request interested public parties to assist in the review. [2001 c.499 §3]
Sec. 4. Notwithstanding ORS 390.835 (Highest and best use of waters within scenic waterways), a permit or temporary permit for dredging issued by the Department of State Lands for the purpose of recreational placer mining within a scenic waterway is not valid after December 31, 2003, if the review described in section 3 of this 2001 Act has been completed and reported to the Seventy-second Legislative Assembly or, if the review has not been completed and reported to the Seventy-second Legislative Assembly, after December 31, 2005. [2001 c.499 §4]

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)

390.005
Definitions
390.010
Policy of state toward outdoor recreation resources
390.050
Park and recreation violations
390.060
Definitions for ORS 390.060 to 390.067
390.063
Lottery bonds for state park projects
390.065
Findings
390.067
Request for issuance of state park lottery bonds
390.111
Creation of department
390.112
Additional criteria for acquiring and developing new historic sites, parks and recreation areas
390.114
State Parks and Recreation Commission
390.117
Commission officers
390.121
Powers of commission
390.122
Requirements for establishing priorities for acquisition
390.124
Commission rulemaking authority
390.127
State Parks and Recreation Director
390.131
Duties of director
390.134
State Parks and Recreation Department Fund
390.135
Parks Subaccount
390.137
State Parks and Recreation Department Operating Fund
390.139
Oregon Adopt-a-Park Program
390.140
Powers and duties of State Parks and Recreation Director
390.141
Agreements between State Parks and Recreation Department and private organizations
390.142
Rules
390.143
Agreements to provide interpretive services to recreational facilities
390.144
Rules for ORS 390.143
390.150
Gifts and grants for State Parks and Recreation Department
390.153
Parks Donation Trust Fund
390.155
Authority for State Parks and Recreation Department to accept gifts or donations
390.180
Standards for recreational planning and fund disbursement
390.182
Statewide accessibility design standards for recreation projects
390.190
Revolving fund
390.195
Use of state correctional institution adult in custody labor for maintenance and improvement at state parks
390.200
Authority of department to require fingerprints
390.230
Fort Stevens Military Reservation
390.231
Development of Crissey Field as state park
390.232
Tax on government camping and recreational vehicle spaces
390.235
Permits and conditions for excavation or removal of archaeological or historical material
390.237
Removal without permit
390.240
Mediation and arbitration of disputes
390.241
Office of Outdoor Recreation
390.242
Associate Director of Outdoor Recreation
390.243
Outdoor Recreation Advisory Committee
390.245
Commemorative coins authorized
390.247
Design
390.250
Development of recreational use of lands by Jackson County
390.255
Use of funds to acquire land interests
390.260
Application to Willamette River Greenway
390.262
Oregon Main Street Revitalization Grant Program
390.264
Oregon Main Street Revitalization Grant Program Fund
390.270
Definitions for ORS 390.270 to 390.290
390.275
Purpose of ORS 390.270 to 390.290
390.280
Duties of State Parks and Recreation Department
390.285
Application by local governing body for reimbursement
390.290
Schedule for reimbursement of local governing bodies
390.292
Willamette Falls Park Fund
390.295
Jurisdiction of State Forestry Department and State Parks and Recreation Department
390.300
Tillamook Forest Recreation Trust Account
390.303
Reconnect Forest Park Fund
390.305
Salmonberry Trail
390.307
Salmonberry Trail Trust Fund
390.308
Oregon Coast Trail
390.310
Definitions for ORS 390.310 to 390.368
390.314
Legislative findings and policy
390.318
Preparation of development and management plan
390.322
Submission of plan to Land Conservation and Development Commission
390.330
Grants for acquisition of lands by local government units
390.332
Acquisition of scenic easements near Willamette River
390.334
Acquisition of scenic easements in lands subject to development plan
390.338
Limitations on use of condemnation power
390.340
Department rules
390.350
Intergovernmental agreements
390.360
Title to, and use and disposition of, lands acquired by local governmental units
390.364
Taxation of lands subject to scenic easements
390.368
Authority to contract landscaping and repair of damage to lands subject to scenic easement
390.400
Public electric vehicle charging stations
390.405
Parks and Recreation Transportation Electrification Fund
390.550
Definitions
390.555
All-Terrain Vehicle Account
390.560
Uses of All-Terrain Vehicle Account
390.565
All-Terrain Vehicle Advisory Committee
390.570
Class I all-terrain vehicle operator permits
390.575
Class III all-terrain vehicle operator permits
390.577
Class IV all-terrain vehicle operator permit
390.580
All-terrain vehicle operating permit
390.585
Rules
390.590
Out-of-state all-terrain vehicle permit
390.605
Definitions
390.610
Policy
390.615
Ownership of Pacific shore
390.620
Pacific shore not to be alienated
390.630
Acquisition along ocean shore for state recreation areas or access
390.632
Public access to coastal shorelands
390.635
Jurisdiction of department over recreation areas
390.640
Permit required for improvements on ocean shore
390.650
Improvement permit procedure
390.655
Standards for improvement permits
390.659
Hearing before director regarding department action on improvement permit
390.660
Regulation of use of lands adjoining ocean shores
390.661
Improvement without permit or contrary to permit conditions as public nuisance
390.663
Investigation of violation within ocean shore
390.666
Revocation, suspension or nonrenewal of improvement permit
390.669
Action by state or any person to abate public nuisance
390.672
Damages for destruction or infringement of public right of navigation, fishery or recreation
390.674
Imposition of civil penalties
390.676
Schedule of civil penalties
390.678
Motor vehicle and aircraft use regulated in certain zones
390.685
Effect of ORS 390.605, 390.615, 390.678 and 390.685
390.690
Title and rights of state unimpaired
390.705
Prohibition against placing certain conduits across recreation area and against removal of natural products
390.715
Permits for pipe, cable or conduit across ocean shore, state recreation areas and submerged lands
390.725
Permits for removal of products along ocean shore
390.729
Permits for operation of all-terrain vehicles on ocean shore
390.755
Periodic reexamination of vegetation line
390.760
Exceptions from vegetation line
390.770
Vegetation line described
390.805
Definitions for ORS 390.805 to 390.925
390.815
Policy
390.826
Designated scenic waterways
390.827
Effect of ORS 390.826 on rights of Indian tribes
390.835
Highest and best use of waters within scenic waterways
390.845
Administration of scenic waterways and related adjacent lands
390.848
Passes for use of parts of Deschutes River
390.851
Activities prohibited on parts of Deschutes River without pass
390.855
Designation of additional scenic waterways
390.865
Authority of legislature over designation of additional scenic waterways
390.875
Transfer of public lands in scenic waterways to department
390.885
Exchange of property within scenic waterway for property outside waterway
390.895
Use of federal funds
390.905
Effect of ORS 390.805 to 390.925 on other state agencies
390.910
Intergovernmental cooperation
390.915
Determination of value of scenic easement for tax purposes
390.925
Enforcement
390.930
Definitions for ORS 390.930 to 390.940
390.932
Creation of Deschutes River Scenic Waterway Recreation Area
390.934
Management of Deschutes River Scenic Waterway Recreation Area
390.936
Rules
390.938
Guidelines for management and development
390.940
Relationship to other laws
390.950
Short title
390.956
Policy
390.959
Composition of trails system
390.962
Criteria for establishing trails
390.965
Hearing required
390.968
Selection of rights of way for trails
390.971
Department duties and powers
390.974
Intergovernmental cooperation to obtain property for use in trail system
390.977
Oregon Recreation Trails Advisory Council
390.980
Funds for purposes of ORS 390.950 to 390.989
390.983
Trail property tax assessment
390.986
Injunctive relief for violation of ORS 390.950 to 390.989
390.989
Eminent domain does not apply to department powers or duties under ORS 390.950 to 390.989
390.990
Violations
390.992
Civil penalties
390.995
Criminal penalties
390.997
Penalties for violation of ORS 166.155 or 166.165
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