ORS 390.845
Administration of scenic waterways and related adjacent lands
- limitations on use
- condemnation
- rules
(1)
Except as provided in ORS 390.835 (Highest and best use of waters within scenic waterways), scenic waterways shall be administered by the State Parks and Recreation Department, each in such manner as to protect and enhance the values which caused such scenic waterway to be included in the system. In such administration primary emphasis shall be given to protecting the aesthetic, scenic, fish and wildlife, scientific and recreation features, based on the special attributes of each area.(2)
After consultation with the State Board of Forestry, the State Department of Agriculture and the affected counties and with the concurrence of the Water Resources Commission, the department shall adopt rules governing the management of related adjacent land. Such rules shall be adopted in accordance with ORS chapter 183. Such rules shall reflect management principles, standards and plans applicable to scenic waterways, their shore lines and related adjacent land and, if necessary, establish varying intensities of protection or development based on special attributes of each area. Such management principles, standards and plans shall protect or enhance the aesthetic and scenic values of the scenic waterways and permit compatible agricultural, forestry and other land uses. Specifically, and not in limitation of the foregoing, such rules shall provide that:(a)
No roads, railroads or utilities shall be constructed within any scenic waterway except where necessary to serve the permissible uses, as defined in subsection (2) of this section and in the rules of the department, of the related adjacent land or unless department approval of such use is obtained as provided in subsection (4) or (5) of this section. The department wherever practicable shall require the sharing of land and airspace by such roads, railroads and utilities. All permissible roads, railroads and utilities shall be located in such a manner as to minimize the disturbance of the natural beauty of a scenic waterway;(b)
Forest crops shall be harvested in such manner as to maintain as nearly as reasonably is practicable the natural beauty of the scenic waterway;(c)
Occupants of related adjacent land shall avoid pollution of waters within a scenic waterway;(d)
The surface of related adjacent land shall not be disturbed for prospecting or mining unless the department’s approval is obtained under subsection (4) or (5) of this section; and(e)
Unless department approval of the proposed use is obtained under subsection (4) or (5) of this section, no commercial, business or industrial structures or buildings other than structures or buildings erected in connection with an existing use shall be erected or placed on related adjacent land. All structures and buildings erected or placed on such land shall be in harmony with the natural beauty of the scenic waterway and shall be placed a sufficient distance from other structures or buildings so as not to impair substantially such natural beauty. No signs or other forms of outdoor advertising that are visible from waters within a scenic waterway shall be constructed or maintained.(3)
No person shall put related adjacent land to uses that violate ORS 390.805 (Definitions for ORS 390.805 to 390.925) to 390.925 (Enforcement) or the rules of the department adopted under ORS 390.805 (Definitions for ORS 390.805 to 390.925) to 390.925 (Enforcement) or to uses to which the land was not being put before December 3, 1970, or engage in the cutting of trees, or mining, or prospecting on such lands or construct roads, railroads, utilities, buildings or other structures on such lands, unless the owner of the land has given to the department written notice of such proposed use at least one year prior thereto and has submitted to the department with the notice a specific and detailed description of such proposed use or has entered into agreement for such use with the department under subsection (5) of this section. The owner may, however, act in emergencies without the notice required by ORS 390.805 (Definitions for ORS 390.805 to 390.925) to 390.925 (Enforcement) when necessary in the interests of public safety.(4)
Upon receipt of the written notice provided in subsection (3) of this section, the department shall first determine whether in its judgment the proposed use would impair substantially the natural beauty of a scenic waterway. If the department determines that the proposal, if put into effect, would not impair substantially the natural beauty of the scenic waterway, the department shall notify in writing the owner of the related adjacent land that the owner may immediately proceed with the proposed use as described to the department. If the department determines that the proposal, if put into effect, would impair substantially the natural beauty of the scenic waterway, the department shall notify in writing the owner of the related adjacent land of such determination and no steps shall be taken to carry out such proposal until at least one year after the original notice to the department. During such period:(a)
The department and the owner of the land involved may agree upon modifications or alterations of the proposal so that implementation thereof would not in the judgment of the department impair substantially the natural beauty of the scenic waterway; or(b)
The department may acquire by purchase, gift or exchange, the land involved or interests therein, including scenic easements, for the purpose of preserving the natural beauty of the scenic waterway.(5)
The department, upon written request from an owner of related adjacent land, shall enter into negotiations and endeavor to reach agreement with such owner establishing for the use of such land a plan that would not impair substantially the natural beauty of the scenic waterway. At the time of such request for negotiations, the owner may submit a plan in writing setting forth in detail proposed uses. Three months after the owner makes such a request for negotiations with respect to use of land, either the department or the owner may give written notice that the negotiations are terminated without agreement. Nine months after the notice of termination of negotiations the owner may use land in conformity with any specific written plan submitted by the owner prior to or during negotiations. In the event the department and the owner reach agreement establishing a plan for land use, such agreement is terminable upon at least one year’s written notice by either the department or the owner.(6)
With the concurrence of the Water Resources Commission, the department may institute condemnation proceedings and by condemnation acquire related adjacent land:(a)
At any time subsequent to nine months after the receipt of notice of a proposal for the use of such land that the department determines would, if carried out, impair substantially the natural beauty of a scenic waterway unless the department and the owner of such land have entered into an agreement as contemplated by subsection (4) or (5) of this section or the owner shall have notified the department of the abandonment of such proposal; or(b)
At any time related adjacent land is used in a manner violating ORS 390.805 (Definitions for ORS 390.805 to 390.925) to 390.925 (Enforcement), the rules of the department or any agreement entered into by the department pursuant to subsection (4) or (5) of this section; or(c)
At any time related adjacent land is used in a manner which, in the judgment of the department, impairs substantially the natural beauty of a scenic waterway, if the department has not been given at least one year’s advance written notice of such use and if there is not in effect department approval of such use pursuant to subsection (4) or (5) of this section.(7)
In such condemnation the owner of the land shall not receive any award for the value of any structure, utility, road or other improvement constructed or erected upon the land after December 3, 1970, unless the department has received written notice of such proposed structure, utility, road or other improvement at least one year prior to commencement of construction or erection of such structure, utility, road or other improvement or unless the department has given approval for such improvement under subsection (4) or (5) of this section. If the person owned the land on December 3, 1970, and for a continuous period of not less than two years immediately prior thereto, the person shall receive no less for the land than its value on December 3, 1970. The department shall not acquire by condemnation a scenic easement in land. When the department acquires any related adjacent land that is located between a lake or river and other land that is owned by a person having the right to the beneficial use of waters in the river by virtue of ownership of the other land:(a)
The right to the beneficial use of such waters shall not be affected by such condemnation; and(b)
The owner of the other land shall retain a right of access to the lake or river necessary to use, store or divert such waters as the owner has a right to use, consistent with concurrent use of the land so condemned as a part of the Oregon Scenic Waterways System.(8)
Any owner of related adjacent land, upon written request to the department, shall be provided copies of rules then in effect or thereafter adopted by the department pursuant to ORS 390.805 (Definitions for ORS 390.805 to 390.925) to 390.925 (Enforcement).(9)
The department shall furnish to any member of the public upon written request and at expense of the member a copy of any notice filed pursuant to subsection (3) of this section.(10)
If a scenic waterway contains lands or interests therein owned by or under the jurisdiction of an Indian tribe, the United States, another state agency or local governmental agency, the department may enter into agreement with the tribe or the federal, state or local agency for the administration of such lands or interests therein in furtherance of the purposes of ORS 390.805 (Definitions for ORS 390.805 to 390.925) to 390.925 (Enforcement). [1971 c.1 §5; 1971 c.459 §1; 1973 c.756 §2; 1981 c.236 §3; 1983 c.334 §4]
Source:
Section 390.845 — Administration of scenic waterways and related adjacent lands; limitations on use; condemnation; rules, https://www.oregonlegislature.gov/bills_laws/ors/ors390.html.
Notes of Decisions
Value of improvements upon land condemned pursuant to ORS 390.805 to 390.925 is measured as of date of taking, and not as of date of Act, where development of land began before effective date of Act. State Hwy. Comm. v. Chaparral Recreation Assn., 13 Or App 346, 510 P2d 352 (1973)
Provisions of this section authorizing condemnation of “related adjacent land” (for which, despite department’s disapproval, owner proposed and refused to abandon plan substantially impairing natural beauty of scenic waterway) were constitutionally applied where there was substantial evidence that taking landowners’ property was reasonably necessary and that they had made no timely and effective abandonment of objectionable proposal. State ex rel Dept. of Trans. v. Hilderbrand, 35 Or App 403, 582 P2d 13 (1978)
Structures and buildings erected in connection with existing use are subject to prior notice requirement unless exempted by department rule. State Dept. of Trans. v. Solomon, 57 Or App 72, 643 P2d 1312 (1982), Sup Ct review denied
Attorney General Opinions
Authority to designate segment of Snake River as a scenic waterway, (1972) Vol 35, p 1226
Law Review Citations
4 EL 301 (1974); 19 EL 853 (1989)
Up to date