Chapter 196 — Columbia River Gorge; Ocean Resource Planning; Wetlands; Removal and Fill

2011 EDITION

COLUMBIA RIVER GORGE; OCEAN RESOURCES; WETLANDS

MISCELLANEOUS MATTERS

COLUMBIA RIVER GORGE

196.105 Definitions for ORS 196.105 to 196.125

196.107 Legislative findings on management plan; effect of plan on land use decisions; decertification of 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; property value

196.125 Buffer by regulation around Columbia River Gorge National Scenic Area prohibited

COLUMBIA RIVER GORGE COMPACT

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

PACIFIC OCEAN RESOURCES COMPACT

196.175 Pacific Ocean Resources Compact ratified

196.180 Compact provisions

196.185 Representation on compact

OREGON OCEAN RESOURCES MANAGEMENT

(Generally)

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; restrictions

196.438 Ocean Policy Advisory Council; members; term of office; quorum

196.443 Duties of council

196.448 Member compensation; meetings

196.451 Technical advisory committee

196.453 Project review panels; guidelines

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; incorporation of plans

196.515 Short title

(Marine Reserves)

196.540 Marine reserves; rules

196.545 Work plan; use of data and recommendations

196.550 Funding

196.555 Reporting; rules

(Miscellaneous)

196.575 Authorization to obtain federal oceanographic data; joint liaison program; use of data

196.580 Liaison program duties

MITIGATION

196.600 Definitions for ORS 196.600 to 196.655

196.605 Purpose

196.610 Powers of Director of Department of State Lands; fees

196.615 Program for mitigation banks; program standards and criteria; rules

196.620 Resource values and credits for mitigation banks; use and withdrawal of credits; annual evaluation of system by director

196.623 Watershed enhancement project as mitigation bank; sale of mitigation credit

196.625 Fill and removal activities in mitigation banks; reports

196.630 Rules

196.635 Director to consult and cooperate with other agencies and interested parties

196.640 Oregon Removal-Fill Mitigation Fund; rules

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; contents

196.660 Effect of ORS 196.600 to 196.655

196.665 Short title

WETLAND CONSERVATION PLANS

196.668 Legislative findings

196.672 Policy

196.674 Statewide Wetlands Inventory; rules

196.676 Response to notices from local governments

196.678 Wetland conservation plans; contents; procedure for adopting

196.681 Duties of department; standards for approval of plan; conditions for approval; order

196.682 Permits required for removal or fill; conditions on issuance of permit

196.684 Amendment of plans; review of plans by department; review of orders by Land Use Board of Appeals

196.686 Acknowledged estuary management plans; review and approval; hearings; final order

196.687 Regulation of alteration or fill of artificially created wetlands

196.688 Public information program

196.692 Rules

REMOVAL OF MATERIAL; FILLING

Note Provision relating to fills depending on E.P.A. approval--1989 c.45 §2

196.795 Streamlining process for administering state removal or fill permits; application for state program general permit; periodic reports to legislative committee

196.800 Definitions for ORS 196.600 to 196.905

196.805 Policy

196.810 Permit required to remove material from bed or banks of waters; status of permit; exceptions; rules

196.815 Application for permit; rules; fees; disposition of fees

196.816 General permits allowing removal of certain amount of material for maintaining drainage; rules; waiver of fees

196.817 General permits; rules

196.818 Wetland delineation reports; review by Department of State Lands; fees

196.820 Prohibition against issuance of permits to fill Smith Lake or Bybee Lake; exception

196.825 Criteria for issuance of permit; conditions; consultation with public bodies; hearing; appeal

196.830 Estuarine resource replacement as condition for fill or removal from estuary; considerations; other permit conditions

196.835 Hearing regarding issuance of permit; procedure; appeals; suspension of permit pending appeal

196.845 Investigations and surveys

196.850 Waiving permit requirement in certain cases; rules; notice; review; fees; disposition of fees

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; restraining order; injunction; public compensation

196.875 Double and treble damages for destruction of public right of navigation, fishery or recreation; costs and attorney fees

196.880 Fill under permit presumed not to affect public rights; public rights extinguished

196.885 Annual report of fill and removal activities; contents of report

196.890 Civil penalties

196.895 Imposition of civil penalties

196.900 Schedule of civil penalties; rules; factors to be considered in imposing civil penalties

196.905 Applicability; rules

196.910 Monitoring fill and removal activities; public education and information materials; periodic reports to legislative committee

PENALTIES

196.990 Penalties

Note: Definitions in 197.015 apply to ORS chapter 196.

COLUMBIA RIVER GORGE

196.105 Definitions for ORS 196.105 to 196.125. As used in ORS 196.105 to 196.125:

(1) “Commission” means the Columbia River Gorge Commission established under section 5 of the Columbia River Gorge National Scenic Area Act, P.L. 99-663.

(2) “General management area” means the area within the scenic area that is not an urban area or special management area.

(3) “Management plan” means the management plan for the Columbia River Gorge National Scenic Area adopted by the commission.

(4) “Special management area” means any area identified as such in the Columbia River Gorge National Scenic Area Act.

(5) “Urban area” means the 13 towns or cities as identified in the Columbia River Gorge National Scenic Area Act. [1987 c.856 §1; 1993 c.317 §1]

196.107 Legislative findings on management plan; effect of plan on land use decisions; decertification of plan. (1) The Legislative Assembly, considering the recommendations of the Land Conservation and Development Commission, finds that the management plan adopted pursuant to the Columbia River Gorge National Scenic Area Act achieves on balance the purposes of the statewide planning goals adopted pursuant to ORS 197.230.

(2) Land use decisions subject to review under ORS 197.835 for compliance with the goals for those portions of Multnomah, Hood River and Wasco Counties within the Columbia River Gorge National Scenic Area, except land within urban area boundaries, are exempt from the requirements of ORS 197.610 to 197.625. This exemption becomes effective in a county when that county or the Columbia River Gorge Commission adopts and implements ordinances that are approved pursuant to sections 7(b) and 8(h) to 8(k) of the Columbia River Gorge National Scenic Area Act, P.L. 99-663.

(3) The Director of the Department of Land Conservation and Development may petition the Land Conservation and Development Commission to decertify the management plan at any time. If the Land Conservation and Development Commission receives a petition from the director, the Land Conservation and Development Commission shall decertify the management plan within 120 days, if it determines that any part of the management plan does not achieve on balance the purposes of the statewide planning goals adopted pursuant to ORS 197.230. [1993 c.317 §3]

196.109 Effect of revision of urban area boundaries within scenic area on management plan. If the urban area boundaries of the Columbia River Gorge National Scenic Area are revised to include land that was once within the general management area or the special management area, the management plan no longer applies to that land and the applicable provisions of ORS chapters 92, 195, 197, 215 and 227 and the rules, plans and ordinances adopted thereunder apply. [1993 c.317 §4]

196.110 Land use regulation in Columbia River Gorge National Scenic Area. (1) Notwithstanding any provision setting forth criteria or conditions for approval of a permit or requiring action by the county in ORS chapter 92, 195, 196, 197 or 215 or in a local ordinance or charter, a county may deny any permit or otherwise refuse to take any action that is inconsistent with the purposes and standards as provided in sections 3 and 6(d) of the Columbia River Gorge National Scenic Area Act, P.L. 99-663, or the scenic area management plan adopted pursuant to the Columbia River Gorge National Scenic Area Act, P.L. 99-663. When taking action on a permit application, a county shall follow procedures consistent with the procedures set out in ORS 215.402 to 215.438 and shall comply with the time limitations set out in ORS 215.427. The authority of a county to deny a permit or otherwise take action under this section shall be in addition to and not in lieu of any other authority for denial that may be exercised by the county pursuant to the provisions of ORS chapters 195, 196 and 197. Any action of a county taken pursuant to this subsection shall be appealed to the Columbia River Gorge Commission as provided in section 15(a)(2) of the Columbia River Gorge National Scenic Area Act, P.L. 99-663.

(2) Notwithstanding any other provision of law, a state agency may not take action that must be reviewed for compatibility with an acknowledged comprehensive plan or land use regulation in the Columbia River Gorge National Scenic Area until the agency determines through written findings that the action is consistent with the purposes and standards as provided in sections 3 and 6(d) of the Columbia River Gorge National Scenic Area Act, P.L. 99-663, and the interim guidelines or the scenic area management plan.

(3) A state agency may seek any of the administrative or judicial remedies or participate in any proceeding provided by the Columbia River Gorge National Scenic Area Act, P.L. 99-663.

(4) The provisions of ORS 197.180 do not apply to the Columbia River Gorge Commission. [1987 c.856 §2; 2003 c.181 §1]

196.115 Appeal from decision of Columbia River Gorge Commission or county. (1) For purposes of judicial review, decisions of the Columbia River Gorge Commission shall be subject to review solely as provided in this section, except as otherwise provided by the Columbia River Gorge National Scenic Area Act, P.L. 99-663.

(2)(a) A final action or order by the commission in a review or appeal of any action of the commission pursuant to section 10(c) or 15(b)(4) of the Columbia River Gorge National Scenic Area Act, or a final action or order by the commission in a review or appeal of any action of a county pursuant to section 15(a)(2) or 15(b)(4) of the Columbia River Gorge National Scenic Area Act, shall be reviewed by the Court of Appeals on a petition for judicial review filed and served as provided in subsections (3) and (4) of this section and ORS 183.482.

(b) On a petition for judicial review under paragraph (a) of this subsection the Court of Appeals also shall review the action of the county that is the subject of the commission’s order, if requested in the petition.

(c) The Court of Appeals shall issue a final order on review under this subsection within the time limits provided by ORS 197.855.

(d) In lieu of judicial review under paragraphs (a) and (b) of this subsection, a county action may be appealed to the Land Use Board of Appeals under ORS 197.805 to 197.855. A notice of intent to appeal the county’s action shall be filed not later than 21 days after the commission’s order on the county action becomes final.

(e) Notwithstanding ORS 197.835, the scope of review in an appeal pursuant to paragraph (d) of this subsection shall not include any issue relating to interpretation or implementation of the Columbia River Gorge National Scenic Area Act, P.L. 99-663, and any issue related to such interpretation or implementation shall be waived by the filing of an appeal under paragraph (d) of this subsection.

(f) After county land use ordinances are approved pursuant to sections 7(b) and 8(h) to (k) of the Columbia River Gorge National Scenic Area Act, P.L. 99-663, the Land Use Board of Appeals shall not review land use decisions within the general management area or special management area for compliance with the statewide planning goals. The limitation of this paragraph shall not apply if the Land Conservation and Development Commission decertifies the management plan pursuant to ORS 196.107.

(3)(a) If a petition for judicial review of a commission order is filed pursuant to subsection (2)(a) of this section, the procedures to be followed by the parties, the commission and the court, and the court’s review, shall be in accordance with ORS 183.480, 183.482 (1) to (7), 183.485, 183.486, 183.490 and 183.497, except as this section or the Columbia River Gorge National Scenic Area Act, P.L. 99-663, otherwise provides.

(b) Notwithstanding any provision of ORS 183.482:

(A) The commission shall transmit the original record or the certified copy of the entire record within 21 days after service of a petition for judicial review is served on the commission; and

(B) The parties shall file briefs with the court within the times allowed by rules of the court.

(c) The court may affirm, reverse or remand the order. If the court finds that the agency has erroneously interpreted a provision of law and that a correct interpretation compels a particular action, the court shall:

(A) Set aside or modify the order; or

(B) Remand the case to the agency for further action under a correct interpretation of the provision of law.

(d) The court shall remand the order to the agency if the court finds the agency’s exercise of discretion to be:

(A) Outside the range of discretion delegated to the agency by law;

(B) Inconsistent with an agency rule, an officially stated agency position or a prior agency practice, unless the inconsistency is explained by the agency; or

(e) The court shall set aside or remand the order if the court finds that the order is not supported by substantial evidence in the whole record.

(f) Notwithstanding any other provision of this section, in any case where review of a county action as well as a commission order is sought pursuant to subsection (2)(a) and (b) of this section, the court shall accept any findings of fact by the commission which the court finds to be supported by substantial evidence in the whole record, and such findings by the commission shall prevail over any findings by the county concerning the same or substantially the same facts.

(4)(a) Except as otherwise provided by this section or the Columbia River Gorge National Scenic Area Act, P.L. 99-663, if review of a county action is sought pursuant to subsection (2)(b) of this section, the procedures to be followed by the parties, the county and the court, and the court’s review, shall be in accordance with those provisions governing review of county land use decisions by the Land Use Board of Appeals set forth in ORS 197.830 (2) to (8), (10), (15) and (16) and 197.835 (2) to (10), (12) and (13). As used in this section, “board” as used in the enumerated provisions shall mean “court” and the term “notice of intent to appeal” in ORS 197.830 (10) shall refer to the petition described in subsection (2) of this section.

(b) In addition to the other requirements of service under this section, the petitioner shall serve the petition upon the persons and bodies described in ORS 197.830 (9), as a prerequisite to judicial review of the county action.

(c) In accordance with subsection (3)(b)(B) of this section, a party to a review of both a commission order and a county action shall file only one brief with the court, which shall address both the commission order and the county action.

(d) Review of a decision under ORS 197.830 to 197.845 shall be confined to the record. Subject to subsection (3)(f) of this section, the court shall be bound by any finding of fact of the county for which there is substantial evidence in the whole record. The court may appoint a master and follow the procedures of ORS 183.482 (7) in connection with matters that the board may take evidence for under ORS 197.835 (2).

(5) Approval of county land use ordinances by the commission pursuant to section 7 of the Columbia River Gorge National Scenic Area Act, P.L. 99-663, may be reviewed by the Court of Appeals as provided in ORS 183.482.

(6) Notwithstanding ORS 183.484, any proceeding filed in circuit court by or against the commission shall be filed with the circuit court for the county in which the commission has a principal business office or in which the land involved in the proceeding is located. [1987 c.856 §3; 1989 c.761 §17; 1993 c.317 §5; 1995 c.595 §16; 1999 c.621 §4]

196.120 Exercise of eminent domain; property value. Notwithstanding any other provision of law, in any proceeding by a state agency or local government to acquire property within the Columbia River Gorge National Scenic Area, through the exercise of the power of eminent domain, the property value shall not be reduced because of any diminution in value resulting from the potential of the taking. [1987 c.856 §6]

196.125 Buffer by regulation around Columbia River Gorge National Scenic Area prohibited. (1) Notwithstanding any other provision of law, no state agency, special district or local government may exercise any regulatory power for the purpose of establishing a scenic buffer around the Columbia River Gorge National Scenic Area. Such regulatory powers include but are not limited to:

(a) Exercising the power of eminent domain;

(b) Establishing scenic easements; or

(2) As used in this section, “Columbia River Gorge National Scenic Area” means that area designated in the Columbia River Gorge National Scenic Area Act, P.L. 99-663. [1987 c.856 §7]

COLUMBIA RIVER GORGE COMPACT

196.150 Compact provisions. The Legislative Assembly of the State of Oregon hereby ratifies the Columbia River Gorge Compact set forth below, and the provisions of such compact hereby are declared to be the law of this state upon such compact becoming effective as provided in Article III.

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A compact is entered into by and between the states of Washington and Oregon, signatories hereto, with the consent of the Congress of the United States of America, granted by an Act entitled, “The Columbia River Gorge National Scenic Area Act,” P.L. 99-663.

ARTICLE I

Columbia Gorge Commission Established

a. The States of Oregon and Washington establish by way of this interstate compact a regional agency known as the Columbia River Gorge Commission. The commission established in accordance with this compact shall have the power and authority to perform all functions and responsibilities in accordance with the provisions of this compact and of the Columbia River Gorge National Scenic Area Act (the federal Act), which is incorporated by this specific reference in this agreement. The commission’s powers shall include but not be limited to:

1. The power to sue and be sued.

2. The power to disapprove a land use ordinance enacted by a county if the ordinance is inconsistent with the management plan, as provided in P.L. 96-663 §7(b)(3)(B).

3. The power to enact a land use ordinance setting standards for the use of nonfederal land in a county within the scenic area if the county fails to enact land use ordinances consistent with the management plan, as provided in P.L. 99-663 §7(c).

4. According to the provisions of P.L. 99-663 §10(c), the power to review all proposals for major development action and new residential development in each county in the scenic area, except urban areas, and the power to disapprove such development if the commission finds the development is inconsistent with the purposes of P.L. 99-663.

b. The commission shall appoint and remove or discharge such personnel as may be necessary for the performance of the commission’s functions, irrespective of the civil service, personnel or other merit system laws of any of the party states.

c. The commission may establish and maintain, independently or in conjunction with any one or more of the party states, a suitable retirement system for its full-time employees. Employees of the commission shall be eligible for social security coverage in respect of old age and survivors insurance provided that the commission takes such steps as may be necessary pursuant to federal law to participate in such program of insurance as a governmental agency or unit. The commission may establish and maintain or participate in such additional programs of employee benefits as may be appropriate.

d. The commission shall obtain the services of such professional, technical, clerical and other personnel as may be deemed necessary to enable it to carry out its functions under this compact. The commission may borrow, accept, or contract for the services of personnel from any state of the United States or any subdivision or agency thereof, from any interstate agency, or from any institution, person, firm or corporation.

e. Funds necessary to fulfill the powers and duties imposed upon and entrusted to the commission shall be provided as appropriated by the legislatures of the states in accordance with Article IV. The commission may also receive gifts, grants, endowments and other funds from public or private sources as may be made from time to time, in trust or otherwise, for the use and benefit of the purposes of the commission and expend the same or any income therefrom according to the terms of the gifts, grants, endowments or other funds.

f. The commission may establish and maintain such facilities as may be necessary for the transacting of its business. The commission may acquire, hold and convey real and personal property and any interest therein.

g. The commission shall adopt bylaws, rules, and regulations for the conduct of its business, and shall have the power to amend and rescind these bylaws, rules and regulations. The commission shall publish its bylaws, rules and regulations in convenient form and shall file a copy thereof and of any amendment thereto, with the appropriate agency or officer in each of the party states.

ARTICLE II

The Commission Membership

a. The commission shall be made up of twelve voting members appointed by the states, as set forth herein, and one non-voting member appointed by the U.S. Secretary of Agriculture.

b. Each state governor shall appoint the members of the commission as provided in the federal Act (three members who reside in the State of Oregon, including one resident of the scenic area, to be appointed by the Governor of Oregon, and three members who reside in the State of Washington, including one resident of the scenic area, appointed by the Governor of Washington).

c. One additional member shall be appointed by the governing body of each of the respective counties of Clark, Klickitat, and Skamania in Washington, and Hood River, Multnomah, and Wasco in Oregon, provided that in the event the governing body of a county fails to make such an appointment, the Governor of the state in which the county is located shall appoint such a member.

d. The terms of the members and procedure for filling vacancies shall all be as set forth in the federal Act.

ARTICLE III

Effective Date of Compact and Commission

This compact shall take effect, and the commission may exercise its authorities pursuant to the compact and pursuant to the Columbia River Gorge National Scenic Area Act when it has been ratified by both states and upon the appointment of four initial members from each state. The date of this compact shall be the date of the establishment of the commission.

ARTICLE IV

Funding

a. The States of Washington and Oregon hereby agree to provide by separate agreement or statute of each state for funding necessary to effectuate the commission, including the establishment of compensation or expenses of commission members from each state which shall be paid by the state of origin.

b. The commission shall submit to the Governor or designated officer or officers of each party state a budget of its estimated expenditures for such period as may be required by the laws of that jurisdiction for presentation to the legislature thereof.

c. Subject to appropriation by their respective legislatures, the commission shall be provided with such funds by each of the party states as are necessary to provide the means of establishing and maintaining facilities, a staff of personnel, and such activities as may be necessary to fulfill the powers and duties imposed upon and entrusted to the commission.

d. The commission’s proposed budget and expenditures shall be apportioned equally between the states.

e. The commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the commission shall be subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the commission shall be audited yearly by the appropriate state auditing official and the report of the audit shall be included in and become a part of the annual report of the commission.

f. The accounts of the commission shall be open at any reasonable time for inspection by the public.

ARTICLE V

Severability

If any provision of this compact, or its application to any person or circumstance, is held to be invalid, all other provisions of this compact, and the application of all of its provisions to all other persons and circumstances, shall remain valid, and to this end the provisions of this compact are severable.

______________________________________________________________________________ [Formerly 390.500]

196.155 Authority for state officers and agencies to carry out duties under compact. The Governor, the Columbia River Gorge Commission and all state agencies and counties are hereby directed and provided authority to carry out their respective functions and responsibilities in accordance with the compact executed under ORS 196.150 to 196.165 and the Columbia River Gorge National Scenic Area Act. [Formerly 390.505]

196.160 Membership on Columbia River Gorge Commission. (1) Each member of the Columbia River Gorge Commission appointed by the Governor under ORS 196.150 shall be subject to Senate confirmation pursuant to section 4, Article III of the Oregon Constitution and shall serve at the pleasure of the Governor until the member’s term expires or until a disqualifying change in residence.

(2) A member shall serve a period of four years.

(3) Members of the commission appointed from Oregon are entitled to compensation and expenses as provided in ORS 292.495. [Formerly 390.510]

196.165 Status of commission employees for purposes of certain benefits. (1) The Columbia River Gorge Commission established under ORS 196.150 may designate its employees as employees and the commission as an employer subject to the Oregon Public Employees Retirement System under ORS chapters 238 and 238A or as an employer and employees subject to a retirement system provided by the State of Washington under the laws of the State of Washington.

(2) The commission may designate its employees as employees eligible under benefit plans provided under ORS 243.105 to 243.285 or under benefit plans provided under the laws of the State of Washington. [Formerly 390.515; 1991 c.67 §46; 1997 c.222 §44; 2003 c.733 §51]

PACIFIC OCEAN RESOURCES COMPACT

196.175 Pacific Ocean Resources Compact ratified. (1) The Legislative Assembly of the State of Oregon hereby ratifies the Pacific Ocean Resources Compact as set forth in ORS 196.180. This compact shall take effect after two or more of the States of Alaska, California, Hawaii or Washington ratify the compact and consent is granted by Congress as required by section 10, Article I of the Constitution of the United States.

(2) In addition to the States of Alaska, California, Hawaii and Washington, the Province of British Columbia may become an associate party to the compact, without voting power. Upon request of the Province of British Columbia and approval of Congress, the Province of British Columbia may become a full party to this compact with the same rights and powers as the party states. [1991 c.617 §1]

Note: 196.175 to 196.185 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 196 by legislative action. See Preface to Oregon Revised Statutes for further explanation.

196.180 Compact provisions. The provisions of the Pacific Ocean Resources Compact are as follows:

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ARTICLE I

Findings and Purpose

A. The parties recognize:

(1) The States of Alaska, California, Hawaii, Oregon and Washington and the Province of British Columbia have a common interest in the protection of marine and coastal resources. This common interest results from:

(a) The fluid, dynamic ocean currents and atmospheric winds that carry pollutants beyond one party’s coastal area to another.

(b) The migratory nature of many important living marine resources that depend upon the marine habitat of various parties for different parts of their lifecycle.

(d) The use of the ocean for transport of oil and other hazardous substances between ports in the various parties and other nations.

(e) A regional interest in providing a stable environment for those communities dependent upon ocean resources and ocean trade for a livelihood.

(2) Some marine resource activities, such as fisheries, are currently highly managed with regard for their regional or transboundary nature through existing state programs, regional fisheries councils, interstate compacts and international treaties. Because there are existing formal mechanisms for interstate cooperation and coordination for these marine resource activities, this compact is not intended to encompass these activities or to grant to the Pacific Ocean Resources Compact authority to regulate resource allocation or management as it may pertain to the use and consumption of marine resources.

(3) A formal interstate agreement does not exist to address and resolve issues of mutual concern or to coordinate individual programs of the parties that affect regional interests in the areas of:

(a) Prevention of oil and hazardous substance spills;

(b) Transportation of oil and other hazardous substances;

(d) Environmental monitoring and research; and

(e) Ocean resource management.

(4) Each party has jurisdiction over the submerged and submersible lands within its territorial sea and responsibility for management of many marine resources and ocean uses. Each party has unique natural resource, social, economic and political conditions for which local management by the individual party is the most appropriate.

(5) Parties now do not have an effective means to address mutual concerns related to transport of oil and hazardous substances in waters within and beyond the party’s jurisdiction that may jeopardize ocean resources and uses important to one or more coastal parties.

(6) The 1983 Presidential Proclamation of the 200-mile United States Exclusive Economic Zone has created the opportunity for all coastal states to more fully exercise and assert their responsibilities pertaining to the protection, conservation and development of ocean resources under United States jurisdiction.

(7) Citizens of the Pacific states and the Province of British Columbia are increasingly concerned with the environmental integrity of the ocean and protection of all ocean resources.

(8) Recent studies conducted in the wake of major accidental releases of oil or hazardous substances have concluded that the existing system of response to spills could be improved in the following ways to provide better protection of ocean resources:

(a) Enhanced personnel training and qualifications;

(b) Improved vessel design and integrity;

(d) Improved coordination in regulatory oversight;

(e) Enhanced traffic management; and

(f) An improved information base dealing with marine and coastal environments.

(9) A spill or discharge of oil or hazardous substance from an ocean-going vessel has the potential of causing major regional impacts.

B. Therefore, the purposes of this compact shall be:

(1) To assist in the promotion of interstate commerce by encouraging uniform regulation of the transportation of oil or hazardous substance within the compact zone.

(2) To provide a legal mechanism to regulate certain ocean activities within the United States Exclusive Economic Zone.

(3) To enhance regional coordination of issues of critical importance.

(4) To work with federal agencies to advance the best interest of the region.

(5) To foster regional cooperation and pooling of resources to reduce costs and increase effective use of scarce resources.

(6) To monitor activities of concern to the parties.

(7) To address issues of mutual concern to the Pacific states and the Province of British Columbia and enhance the parties’ influence over activities of concern that are not now addressed through existing compacts, including:

(a) Spill prevention;

(b) Transportation of oil and other hazardous substances;

(d) Environmental monitoring and research; and

(e) Ocean resource management.

(8) To foster cooperation and coordination among the parties in order to increase the effectiveness of the individual party’s ocean laws and programs.

(9) To provide technical assistance to parties for ocean activities covered by this compact.

(10) To provide for formal participation by the Province of British Columbia with the compact to more fully address issues of regional concern.

(11) To insure that the citizens of the region have opportunities to participate in discussions and deliberations of regional ocean resources issues.

(12) To establish an innovative system under which the parties can represent their shared interests within the compact zone, including:

(a) The maintenance and protection of common ocean resources; and

(b) The vessel transportation of oil and other hazardous substances.

(13) To recommend uniform safety standards for routes, crews and equipment for vessels transporting oil and hazardous substances within the compact zone and monitor the implementation of these standards and regulations by federal agencies, states or provinces and private industry.

(14) To promote more coordinated management of ocean resources that are of mutual concern.

(15) To provide a forum for the regional coordination of the individual parties’ plans for the management and protection of those areas of the Pacific Ocean and adjacent waters over which the compacting parties jointly or separately now have or may acquire jurisdiction.

ARTICLE II

Definitions

As used in this compact:

(1) “Compact” means the representative body created by Article IV of this compact.

(2) “Compact zone” means the portion of the oceans bordering the parties within the 200-mile exclusive economic zone.

(3) “Hazardous substance” or “hazardous substances” means any element or compound that, when it enters in or upon the water, presents an imminent and substantial danger to the public health or welfare or the environment, including but not limited to fish, animals, vegetation or any part of the natural habitat in which they are found. “Hazardous substance” includes but is not limited to a substance designated under 33 U.S.C. §1321 (b)(2)(A), any element, compound, mixture, solution or substance designated under 42 U.S.C. §9602, any hazardous waste having characteristics identified under or listed under 42 U.S.C. §6921, any toxic pollutant listed under 33 U.S.C. §1317 (a) and any imminently hazardous chemical substance or mixture with respect to which the Administrator of the United States Environmental Protection Agency has taken action under 15 U.S.C. §2606.

(4) “Navigable waters” means the waters of the United States, including the territorial sea.

(5) “Oil” means crude petroleum oil and any other hydrocarbons regardless of gravity, which are produced at the well in liquid form by ordinary production methods, and any petroleum products or petrochemicals of any kind and in any form whether crude, refined or a petroleum by-product, including petroleum, fuel oil, gasoline, lubricating oils, oily sludge, oily refuse or mixed with other wastes, liquefied natural gas or propane.

(6) “Party” means a state or province that ratifies this compact as provided in Article III of this compact.

(7) “Representative” means an individual appointed as provided in Article IV of this compact to represent a party to the compact.

(8) “Vessel” means a watercraft or other artificial contrivance that is constructed or adapted to carry, or that carries oil or hazardous substance in bulk as cargo or cargo residue, and that:

(a) Operates on the navigable waters of the compact zone; or

(b) Transfers oil or hazardous substance in a place subject to the jurisdiction of the United States.

ARTICLE III

Operative Dates

(1) Except as provided in paragraph (2) of this Article, this compact shall become effective when two or more of the States of Alaska, California, Hawaii or Washington ratify the compact and the consent of Congress is or has been granted as required by section 10, Article I of the Constitution of the United States.

(2) This agreement shall become operative as to the Province of British Columbia as a full party upon request of the Province of British Columbia and approval of the Congress.

ARTICLE IV

Pacific Ocean Resources Compact

(1) The Pacific Ocean Resources Compact is created and shall have its offices within the territorial limits of one of the parties, shall carry out its duties and functions in accordance with this compact, shall continue in force and effect in accordance with this compact, and, except as specifically provided in this compact, shall not be considered an agency or instrumentality of the United States for the purpose of any federal law. Each party participating in this compact shall appoint two persons, subject to the applicable laws of the appointing party, to undertake the functions and duties of representatives of the compact. This compact shall be invested with the powers and duties set forth in this compact.

(2) The term of each representative shall be four years. A representative shall hold office until a successor is appointed and qualified but the successor’s term shall expire four years from legal date of expiration of the term of the predecessor. Vacancies occurring in the office of a representative for any reason or cause shall be filled for the unexpired term by the party represented by the vacancy. Any party may remove the representative for that party in accordance with the statutes of the party concerned. Each representative may delegate to a deputy the power to be present and participate, including voting as the representative or substitute, at any meeting of or hearing by or other proceeding of the compact.

(3) The compact shall invite the Secretary of Transportation, the Administrator of the United States Environmental Protection Agency and the Administrator of the National Oceanic and Atmospheric Administration or their designees to participate as nonvoting members of the compact.

ARTICLE V

Pacific Ocean Resources Compact Authority

(1) The Pacific Ocean Resources Compact is authorized to:

(a) Facilitate the prevention of oil and hazardous substance spills by:

(A) Serving as a West Coast Spill Prevention Advisory Committee to the United States Coast Guard. As such, the compact shall advise the United States Coast Guard on matters pertaining to spill prevention within the compact zone and also shall advise the United States Coast Guard on other matters within the compact’s authority as set forth in this compact.

(B) Participating as an interested person in any rulemaking proceeding by the United States Coast Guard related to the establishment of safety standards for routes, crews and equipment for vessels transporting oil and hazardous substances. The United States Coast Guard shall adopt the recommendations of the compact, unless the United States Coast Guard makes a finding, as part of the rulemaking process, that the adoption of such recommendations would not further the prevention of oil and hazardous substance spills.

(C) As an interested person, requesting the United States Coast Guard to initiate rulemaking for the establishment or amendment of safety standards for routes, crews and equipment for vessels transporting oil and hazardous substances. The United States Coast Guard shall initiate rulemaking as requested by the compact, unless the United States Coast Guard makes a finding that the initiation of such rulemaking would not further the prevention of oil and hazardous substance spills.

(D) Making recommendations to other appropriate state, federal and regional entities regarding uniform safety standards for routes, crews and equipment for vessels transporting oil and hazardous substances in the compact zone.

(b) Insure a coordinated network of oil and hazardous substance spill response plans and programs of the parties, federal agencies and private organizations.

(c) By regulation, establish the requirements for submission of and approval by the compact of a contingency plan by any vessel transporting oil or hazardous substance in the compact zone. Such requirements shall be consistent with the requirements for response plans under section 4202 of the Oil Pollution Act of 1990 (P.L. 101-380). A plan developed in accordance with the regulations adopted by the compact and approved by the compact shall satisfy the requirements of section 4202 of the Oil Pollution Act and shall supersede any requirements of an individual party for submitting a vessel contingency or spill response plan. However, all plans approved by parties to this compact before the operative date of the compact shall remain in full force and effect until a contingency plan is approved by the compact pursuant to this paragraph. In establishing regulations under this paragraph, the compact shall work closely with officials of the parties to assure that the vessel contingency plans required under this compact include all subject areas included by the member parties, in the standards for vessel contingency plans of the parties, in aggregate, before the adoption of the compact.

(d) Establish and maintain an informational clearinghouse related to spill response, including a directory of personnel, equipment, technical expertise, organizations and other resources available to assist as part of a regional oil or hazardous substance spill response.

(e) Provide a forum for discussion and recommendation to resolve conflicts among member parties or the federal government regarding various ocean resources programs that have been or may be established by each party.

(f) Provide opportunities for public participation in compact activities by holding meetings of the compact in various locations within the territorial limits of the parties, providing opportunities for public comment at meetings and developing a public outreach program.

(g) Designate state or provincial agency officials to act on behalf of the compact as liaisons with federal agencies.

(h) Identify the regional data needs related to ocean resources and recommend a method for compiling the data in a format that can be shared by all parties.

(i) Consult with and advise any pertinent party or federal agency with regard to problems connected with ocean resources management and recommend the adoption of any rules or regulations the compact considers advisable that are within the jurisdiction of the agency.

(j) Establish sanctions and a schedule of civil penalties for violations of the rules or regulations of the compact and impose such sanctions or civil penalties in accordance with 5 U.S.C. §§551 to 559 and §§701 to 706.

(k) Request the United States Coast Guard to enforce or assist in the enforcement of any regulations adopted by the compact including but not limited to regulations related to the submission of a contingency plan or financial assurance requirements in the compact zone.

(L) Establish a schedule of reasonable fees to be assessed for the review of a contingency plan submitted under paragraph (c) of this subsection. The fees shall be sufficient to recover the costs of reviewing the plans and conducting any related inspections. The fees may be assessed in increments up to the maximum amount.

(2) In addition to the authority granted under paragraph (1) of this Article, the compact may:

(a) Accept grants and gifts.

(b) Enter into contracts for whose performance the compact shall be solely responsible in order to support its operations.

(c) Conduct and prepare, independently or in cooperation with others, studies, investigations, research and programs relating to the purposes of this compact.

(d) Conduct public hearings on matters pertaining to the purposes of this compact.

(e) Establish a standardized cost recovery formula for damages to other resources based on the amount of oil or hazardous substance spilled.

(f) Enter into an agreement with the United States Coast Guard under which the compact will administer compliance with the requirements for demonstrating financial responsibility under section 1016 of the Oil Pollution Act of 1990 in an amount established by the compact. Such proof of financial responsibility, if established by the compact, shall satisfy and supersede the requirement of any individual party for demonstrating financial responsibility. However, all financial responsibility requirements established by the parties to this compact before the compact establishes an amount under this paragraph shall remain in full force and effect until the compact establishes a requirement and enters into an agreement with the United States Coast Guard under this paragraph. In establishing the amount of financial responsibility under this paragraph, the compact shall work with officials of each party to assure that such requirements are sufficient to satisfy the requirements of the parties, in aggregate.

(g) In accordance with the provisions of 5 U.S.C. §§551 to 559 and §§701-706, enforce the rules and regulations adopted by the compact to carry out the authority of the compact as set forth in this Article.

(h) Appoint technical and advisory committees for the purpose of advising the compact on regional ocean resources issues, data needs and format and other purposes related to the compact’s activities. A technical or advisory committee appointed by the compact shall not be subject to the provisions of the Federal Advisory Committee Act (P.L. 92-463, as amended).

(i) Allow a variance from the provisions of this compact or rules or regulations adopted by the compact pursuant to this Article. A variance shall be based on a showing by the person or entity seeking the variance that the activity allowed under the variance will have no regional impact and that the variance is economically necessary. Under no circumstances may a variance result in the regulation of the transportation of oil or hazardous substance according to standards less stringent than standards imposed under federal law.

(3) The compact shall adopt all regulations necessary to carry out its duties and exercise its authority under this Article. The compact shall adopt such regulations in accordance with the provisions of 5 U.S.C. §§500 to 559.

ARTICLE VI

Pacific Ocean Resources Compact Organization

The compact shall select a chairperson and a vice chairperson. After the initial chairperson and vice chairperson are selected, the compact shall establish a rotation for the selection of the chairperson and vice chairperson so the office rotates through the parties to the compact. The compact shall appoint and at its pleasure remove or discharge such officers and employees as may be required to carry the provisions of this compact into effect and shall fix and determine their duties, qualifications and compensation. The compact shall adopt rules and regulations for the conduct of its business. It may establish and maintain one or more offices for the transaction of its business and may meet at any time or place within the territorial limits of the signatory parties but must meet at least once a year.

ARTICLE VII

Voting and Quorum

(1) A majority of the representatives shall constitute a quorum.

(2) Each representative shall be entitled to one vote. No action or decision of the compact shall be approved unless the action or decision receives a majority of the votes of the representatives, including at least one affirmative vote from each party.

ARTICLE VIII

Support Agencies

The compact may contract for the staff support necessary to carry out the purposes of this compact or request appropriate agencies of the signatory parties to act as the research agencies of the compact.

ARTICLE IX

Parties’ Powers Under Compact

Except as specifically provided in Article V of this compact, nothing in this compact shall be construed to limit the powers of any party or to repeal or prevent the enactment of any legislation or the enforcement of any requirement imposing additional conditions and restrictions to conserve ocean resources.

ARTICLE X

Absence

Continued absence of representation or of any compact representative from any party shall be brought to the attention of the appointing authority of the party not represented.

ARTICLE XI

Funding

(1) Each party shall contribute to the support of the compact.

(2) The annual contribution of each party shall be figured to the nearest $100.

(3) The compact shall prepare an annual budget which shall be approved by vote of the compact. After approval, the proposed budget shall be presented to the chief executive and legislative body of the signatory parties.

(4) Each party shall be responsible for the expenses of its own representatives.

ARTICLE XII

Withdrawal from Compact

This compact shall continue in force and remain binding upon each party until renounced by it. Renunciation of this compact must be preceded by sending six months’ notice in writing of intention to withdraw from the compact to the other parties to the compact.

______________________________________________________________________________ [1991 c.617 §2]

Note: See note under 196.175.

196.185 Representation on compact. One member of the Senate appointed by the President of the Senate and one member of the House of Representatives appointed by the Speaker of the House of Representatives shall act as the representatives of the State of Oregon on the Pacific Ocean Resources Compact in accordance with the powers and duties set forth in the compact. [1991 c.617 §3]

Note: See note under 196.175.

OREGON OCEAN RESOURCES MANAGEMENT

(Generally)

196.405 Definitions for ORS 196.405 to 196.515. As used in ORS 196.405 to 196.515, unless the context requires otherwise:

(1) “Council” means the council established in ORS 196.438.

(2) “Exclusive Economic Zone” has the meaning set forth in Proc. 5030 whereby the United States proclaimed jurisdiction over the resources of the ocean within 200 miles of the coastline.

(3) “Panel” means a project review panel established under ORS 196.453.

(4) “Plan” means the Oregon Ocean Resources Management Plan.

(5) “Territorial sea” means the waters and seabed extending three geographical miles seaward from the coastline in conformance with federal law.

(6) “Territorial Sea Plan” means the plan for Oregon’s territorial sea. [1987 c.576 §6; 1991 c.501 §2; 2003 c.744 §1]

196.407 Policy. It is the policy of this state to:

(1) Work with the States of Washington and California to explore the possibility of development of communication information systems including a computerized system of coastal and marine resource information.

(2) Work with the States of Washington and California to develop compatible programs of ocean oil spill response, damage assessment and compensation.

(3) Cooperate and coordinate with adjacent states to develop a regional approach to obtaining fisheries information. [1989 c.895 §2; 2003 c.744 §2]

196.408 Duties of state agencies. (1) State agencies shall, to the maximum extent practicable, coordinate development of coastal and ocean information systems with those in adjacent states.

(2) State agencies with responsibility for oil spill and hazardous material response, damage assessment and compensation in the marine environment shall, to the maximum extent practicable, coordinate Oregon’s plans, programs, policies and techniques with those of adjacent states.

(3) State agencies which have jurisdiction over water areas, the seabed and resources adjacent to offshore rocks and islands may coordinate with adjacent states and federal agencies to develop programs and regulations to manage uses and activities of ocean areas adjacent to coastal cliffs and offshore rocks and islands managed within the National Wildlife Refuge System.

(4) The State Department of Fish and Wildlife may coordinate with fishery managers in adjacent states to develop a uniform fish catch and monitoring system. [1989 c.895 §3; 2003 c.744 §3]

196.410 Legislative findings for offshore oil and gas leasing. The Legislative Assembly finds:

(1) Oregon’s territorial sea encompasses all the rocks and islands of the Oregon National Wildlife Refuge, borders all beaches, headlands and rocky intertidal areas and includes areas heavily used for commercial and recreational fishing. Navigation lanes for barges and vessels pass through the area.

(2) Oregon’s territorial sea is rich in marine life. Its renewable resources support significant portions of the coastal economy. It is a dynamic, hazardous marine environment within which oil spills cannot be contained.

(3) Oregon’s nearshore zone is extremely high in biological productivity, reflected by the variety and value of commercial and sport ocean fisheries catch. The Oregon coast provides a significant habitat for migrating seabirds and mammals. Oregon is unwilling to risk damaging sensitive marine environments or to sacrifice environmental quality to develop offshore oil and gas resources. [1989 c.895 §4]

196.415 Legislative findings for ocean resources management. The Legislative Assembly finds that:

(1) The Pacific Ocean and its many resources are of environmental, economic, aesthetic, recreational, social and historic importance to the people of this state.

(2) Exploration, development and production of ocean resources likely to result from both federal agency programs in federal waters of the outer continental shelf and initiatives of private companies within state waters will increase the chance of conflicting demands on ocean resources for food, energy and minerals, as well as waste disposal and assimilation, and may jeopardize ocean resources and values of importance to this state.

(3) The fluid, dynamic nature of the ocean and the migration of many of its living resources beyond state boundaries extend the ocean management interests of this state beyond the three geographic mile territorial sea currently managed by the state pursuant to the federal Submerged Lands Act.

(4) Existing federal laws, the Coastal Zone Management Act of 1972, the Coastal Zone Act Reauthorization Amendments of 1990, the Magnuson Fisheries Management and Conservation Act of 1976, as amended, and the Outer Continental Shelf Lands Act of 1978, recognize the interests of coastal states in management of ocean resources in federal waters and provide for state participation in ocean resources management decisions. The Coastal Zone Act Reauthorization Amendments of 1990 require that all federal coastal activities affecting natural resources, land uses and water uses in the coastal zone must be consistent with the federally approved Oregon Coastal Management Program.

(5) The 1983 Proclamation of the 200-mile United States Exclusive Economic Zone has created an opportunity for all coastal states to more fully exercise and assert their responsibilities pertaining to the protection, conservation and development of ocean resources under United States jurisdiction.

(6) It is important that the State of Oregon develop and maintain a program of ocean resources management to promote management of living and nonliving marine resources within state jurisdiction, to insure effective participation in federal agency planning and management of ocean resources and uses which may affect this state, and to coordinate state agency management of ocean resources with local government management of coastal shorelands and resources.

(7) While much is known about the ocean, its composition, characteristics and resources, additional study and research is required to gain information and understanding necessary for sound ocean planning and management. [1987 c.576 §3; 1991 c.501 §3; 2003 c.744 §4]

196.420 Policy. It is the policy of the State of Oregon to:

(1) Conserve the long-term values, benefits and natural resources of the ocean both within the state and beyond by giving clear priority to the proper management and protection of renewable resources over nonrenewable resources;

(2) Encourage ocean resources development which is environmentally sound and economically beneficial to adjacent local governments and to the state;

(3) Assert the interests of this state as a partner with federal agencies in the sound management of the ocean resources within the United States Exclusive Economic Zone and on the continental shelf;

(4) Encourage research, study and understanding of ocean processes, marine life and other ocean resources;

(5) Encourage research and development of new, innovative marine technologies to study and utilize ocean resources; and

(6) Ensure that the Ocean Policy Advisory Council will work closely with coastal local governments to incorporate in its activities coastal local government and resident concerns, coastal economic sustainability and expertise of coastal residents. [1987 c.576 §4; 1991 c.501 §4; 2003 c.744 §5]

196.425 Oregon Ocean Resources Management Program. To ensure the conservation and development of ocean resources affecting Oregon consistent with the purposes of ORS 196.405 to 196.515, a program of ocean resource planning and management is established. This program shall be known as the Oregon Ocean Resources Management Program and is part of Oregon’s coastal management program. The Oregon Ocean Resources Management Program consists of:

(1) Applicable elements of the Oregon Coastal Management Program approved by the U.S. Secretary of Commerce on July 7, 1977, and as subsequently amended pursuant to the Coastal Zone Management Act of 1972, including statutes that apply to coastal and ocean resources, those elements of local comprehensive plans of jurisdictions within Oregon’s coastal zone as defined in the Oregon Coastal Management Program which may be affected by activities or use of resources within the ocean, and those statewide planning goals which relate to the conservation and development of ocean and coastal resources;

(2) The Ocean Policy Advisory Council or its successor;

(3) Those portions of the Oregon Ocean Resources Management Plan that are consistent with ORS 196.405 to 196.515; and

(4) The Territorial Sea Plan as reviewed by the council and submitted to the agencies represented on the council. [1987 c.576 §5; 1991 c.501 §5; 2003 c.744 §6]

196.435 Primary agency for certain federal purposes; restrictions. (1) The Department of Land Conservation and Development is designated the primary agency for coordination of ocean resources planning. The department is designated the State Coastal Management Agency for purposes of carrying out and responding to the Coastal Zone Management Act of 1972. The department shall assist:

(a) The Governor with the Governor’s duties and opportunities to respond to federal agency programs and activities affecting coastal and ocean resources; and

(b) The Ocean Policy Advisory Council.

(2) The provisions of ORS 196.405 to 196.515 do not change statutorily and constitutionally mandated responsibilities of other state agencies.

(3) ORS 196.405 to 196.515 do not provide the Land Conservation and Development Commission with authority to adopt specific regulation of ocean resources or ocean uses. [1987 c.576 §7; 1989 c.325 §1; 1991 c.501 §21; 2003 c.744 §7]

196.438 Ocean Policy Advisory Council; members; term of office; quorum. (1) The Governor shall establish an Ocean Policy Advisory Council that is staffed by the State Department of Fish and Wildlife, the Department of Land Conservation and Development and other departments as the Governor deems necessary. The council shall be composed of:

(a) The Governor or the Governor’s designee, as a nonvoting member;

(b) The director or the director’s designee of the following agencies, as nonvoting members:

(A) Department of Environmental Quality;

(B) State Department of Fish and Wildlife;

(D) Department of Land Conservation and Development;

(E) Department of State Lands;

(F) Parks and Recreation Department;

(G) State Department of Agriculture; and

(H) On behalf of the State Board of Higher Education, the director or director’s designee of Oregon State University, Sea Grant College;

(c) A member of the governing body of Coos, Curry, Douglas or Lane County to be appointed by the Governor, chosen in consultation with and with the approval of a majority of the members of the governing bodies of Coos, Curry, Douglas and Lane Counties;

(d) A member of the governing body of Clatsop, Lincoln or Tillamook County to be appointed by the Governor, chosen in consultation with and with the approval of a majority of the members of the governing bodies of Clatsop, Lincoln and Tillamook Counties;

(e) An elected city official from a coastal city bordering the territorial sea to be appointed by the Governor with advice from an Oregon coastal zone management association;

(f) A representative of each of the following ocean interests, to be appointed by the Governor, and subject to confirmation by the Senate pursuant to section 4, Article III, Oregon Constitution:

(A) Commercial ocean fisheries of the North Coast from Newport north;

(B) Commercial ocean fisheries of the South Coast south of Newport;

(D) Charter, sport or recreation ocean fisheries of the South Coast south of Newport;

(E) Ports marine navigation or transportation;

(F) Coastal nonfishing recreation interests of surfing, diving, kayaking or windsurfing;

(G) A coastal conservation or environmental organization;

(H) Oregon Indian tribes appointed after consultation with the Commission on Indian Services;

(I) A coastwide organization representing a majority of small ports and local governments, as a nonvoting member; and

(J) A statewide conservation or environmental organization; and

(g) Two representatives of the public, at least one of whom shall be a resident of a county bordering the territorial sea, to be appointed by the Governor.

(2) The term of office of each member appointed by the Governor is four years, but a member serves at the pleasure of the Governor. Before the expiration of the term of a member, the Governor shall appoint a successor whose term begins on July 1 next following. A member is eligible for reappointment. If there is a vacancy for any cause, the Governor shall make an appointment to become immediately effective for the unexpired term.

(3) A majority of the voting members of the council constitutes a quorum for the transaction of business.

(4) The voting members of the council shall elect a person from among the membership to chair the council. [1991 c.501 §6; 2003 c.744 §8]

Note: 196.438 to 196.448 were added to and made a part of 196.405 to 196.515 by legislative action but were not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

196.443 Duties of council. (1) The purposes of the Ocean Policy Advisory Council are to:

(a) Periodically review the Territorial Sea Plan and submit recommendations for the plan to state agencies represented on the council. The council shall recommend deletions to the Territorial Sea Plan of all site designations and management prescriptions to the Land Conservation and Development Commission.

(b) Advance the policies of ORS 196.420 to the federal government and any multistate bodies.

(c) Provide a forum for discussing ocean resource policy, planning and management issues and, when appropriate, mediating disagreements.

(d) Recommend amendments to the Oregon Ocean Resources Management Plan as needed. If the recommended amendments to the plan incorporate the establishment of a system of limited marine reserves or other protected areas, the council also shall perform an economic analysis of short-term and long-term effects that the establishment of such areas would have on coastal communities. Any recommended amendments related to marine reserves or marine protected areas shall be submitted to the State Fish and Wildlife Commission for review and approval.

(e) Offer advice to the Governor, the State Land Board, state agencies and local governments on specific ocean resources management issues.

(f) Encourage participation of federal agencies in discussion and resolution of ocean resources planning and management issues affecting Oregon.

(2) The Ocean Policy Advisory Council may not, except to the extent of fulfilling its advisory capacity under subsection (1)(e) of this section, establish fishing seasons, harvest allocations, geographic restrictions or other harvest restrictions. [1991 c.501 §8; 2003 c.744 §9]

Note: See note under 196.438.

196.445 [1987 c.576 §8; 1989 c.154 §1; 1989 c.904 §52; repealed by 1991 c.501 §18]

196.448 Member compensation; meetings. (1) A member of the Ocean Policy Advisory Council is entitled to compensation and expenses as provided in ORS 292.495.

(2) The council shall meet at least once every six months at a place, day and hour determined by the council. The council also shall meet at other times and places specified by the call of the chair or of a majority of the members of the council. [1991 c.501 §§9,10,11; 2003 c.744 §10]

Note: See note under 196.438.

196.450 [1987 c.576 §9; repealed by 1991 c.501 §18]

196.451 Technical advisory committee. (1) To aid and advise the Ocean Policy Advisory Council in the performance of its functions, the council shall establish a permanent scientific and technical advisory committee chaired by the director of the Sea Grant College program or other similarly qualified member of the Ocean Policy Advisory Council and may establish additional committees as needed.

(2) Members of the advisory committees are not entitled to compensation, but in the discretion of the council may be reimbursed from funds available to council for actual and necessary travel and other expenses incurred by them in the performance of their official duties, subject to ORS 292.495. [1991 c.501 §12]

Note: 196.451 and 196.453 were added to and made a part of 196.405 to 196.515 by legislative action but were not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

196.453 Project review panels; guidelines. (1) The Ocean Policy Advisory Council may establish project review panels to address and coordinate the interests of state, federal and local governments in specific development proposals.

(2) The council may adopt guidelines to establish criteria to create review panels and determine the scope of the activities of the panel.

(3) A panel shall not have any authority independent of the council. The authority of any panel shall be that granted to it by the council. [1991 c.501 §16; 2003 c.744 §11]

Note: See note under 196.451.

196.455 Coordination with federal programs. To insure that the Oregon Ocean Resources Management Plan and Territorial Sea Plan are coordinated with federal agency programs for coastal and ocean resources, the Ocean Policy Advisory Council may invite federal agencies with responsibility for the study and management of ocean resources or regulation of ocean activities to designate a liaison to the council to attend council meetings, respond to council requests for technical and policy information and review draft plan materials prepared by the council. [1987 c.576 §10; 1991 c.501 §13; 2003 c.744 §12]

196.465 Compatibility of acknowledged comprehensive plans. (1) The Oregon Ocean Resources Management Plan and Territorial Sea Plan, when adopted pursuant to ORS 196.471, shall be compatible with acknowledged comprehensive plans of adjacent coastal counties and cities.

(2) To insure that the plan is compatible with the comprehensive plans of adjacent coastal counties and cities, the Ocean Policy Advisory Council shall work with the Department of Land Conservation and Development and any Oregon coastal zone management association to:

(a) Meet and consult with local government officials;

(b) Distribute draft materials and working papers for review and solicit comment on council materials; and

(c) Provide technical and policy information to local governments about ocean resource issues. [1987 c.576 §11; 1991 c.501 §14; 2003 c.744 §13]

196.470 [1987 c.576 §12; repealed by 1991 c.501 §18]

196.471 Territorial Sea Plan review requirements. (1) The Land Conservation and Development Commission shall review the Territorial Sea Plan and any subsequent amendments recommended by the Ocean Policy Advisory Council to either the Territorial Sea Plan or the Oregon Ocean Resources Management Plan and make findings that the plan or amendments:

(a) Carry out the policies of ORS 196.405 to 196.515; and

(b) Are consistent with applicable statewide planning goals, with emphasis on the four coastal goals.

(2) After making the findings required by subsection (1) of this section, the commission shall adopt the Territorial Sea Plan or proposed amendments as part of the Oregon Coastal Management Program.

(3) If the commission does not make the findings required by subsection (1) of this section, the commission shall return the plan or amendments to the council for revision. The commission may specify any needed revisions.

(4) Upon adoption of the Territorial Sea Plan or subsequent amendments the commission may, after consultation with affected state agencies, identify amendments to agency ocean or coastal resource management programs necessary to conform to the provisions of the adopted plan. [1991 c.501 §20; 1993 c.18 §35]

Note: 196.471 was added to and made a part of 196.405 to 196.515 by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.

196.475 [1987 c.576 §13; 1991 c.501 §15; repealed by 2003 c.744 §14]

196.485 State agency coordination requirements; incorporation of plans. (1) If a state agency incorporates the Oregon Ocean Resources Management Plan and Territorial Sea Plan by reference in its coordination program and, upon a finding by the Land Conservation and Development Commission that the agency has amended its rules, procedures and standards to conform with the objectives and requirements of the plan and Territorial Sea Plan, the state agency shall satisfy the requirements of state agency planning and coordination required by ORS 197.180 for ocean planning.

(2) If a state agency does not incorporate the plan or Territorial Sea Plan in its coordination program, the agency shall be subject to the state agency coordination requirements of ORS chapters 195, 196 and 197 for state agency programs, procedures and standards that in any way affect ocean resources.

(3) State agency programs or rules for management of ocean resources or ocean uses shall be consistent with the Oregon Ocean Resources Management Plan and the Territorial Sea Plan. [1987 c.576 §17; 1991 c.501 §17]

196.490 [1987 c.576 §18; repealed by 1991 c.501 §18]

196.495 [1987 c.576 §19; repealed by 1991 c.501 §18]

196.500 [1987 c.576 §20; repealed by 1991 c.501 §18]

196.505 [1987 c.576 §21; repealed by 1991 c.501 §18]

196.515 Short title. ORS 196.405 to 196.485 shall be known as the Oregon Ocean Resources Management Act. [1987 c.576 §2]

(Marine Reserves)

196.540 Marine reserves; rules. The State Department of Fish and Wildlife, State Fish and Wildlife Commission, State Land Board and relevant state agencies shall, consistent with existing statutory authority, implement the November 29, 2008, recommendations from the Ocean Policy Advisory Council on marine reserves by:

(1) Adopting rules to establish, study, monitor, evaluate and enforce a pilot marine reserve at Otter Rock and a pilot marine reserve and a marine protected area at Redfish Rocks;

(2) Studying and evaluating potential marine reserves at Cape Falcon, Cascade Head and Cape Perpetua; and

(3) Supporting the development of a marine reserve proposal at Cape Arago-Seven Devils. [2009 c.847 §1]

Note: 196.540 to 196.555 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 196 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

196.545 Work plan; use of data and recommendations. (1) The State Department of Fish and Wildlife, in consultation with members from the scientific and technical advisory committee established under ORS 196.451, other relevant marine and fishery scientists, relevant state agencies, ocean users and coastal communities shall implement the activities described in ORS 196.540 by developing a work plan.

(2) The work plan shall contain the following elements regarding the marine reserves described in ORS 196.540:

(a) A biological assessment, including information on habitat characterization, biological resources, local knowledge and, for the established pilot marine reserves, monitoring plans.

(b) A socioeconomic assessment, including a description of human uses, net effects on sport and commercial fisheries and communities and, for the established pilot marine reserves, monitoring plans.

(c) Formation of community teams, with diverse and balanced stakeholder representation that includes local government, recreational fishing industry, commercial fishing industry, nonfishing industry, recreationalists, conservation, coastal watershed councils, relevant marine and avian scientists, to collaborate and develop recommendations for potential marine reserves, considering the biological and socioeconomic information developed under this section. Collaboration may be facilitated by a neutral outside party hired through a competitive bidding process.

(d) Provision of information on the process and data gathered to interested parties and made available to the public.

(e) Development of scientifically based goals specific to each of the marine reserve sites, incorporating continuity and cumulative outcomes, benefits and impacts.

(f) Provision of baseline data on Oregon’s territorial sea, as defined in ORS 196.405.

(g) Development of an enforcement plan in consultation with the Oregon State Police and representatives from affected user groups.

(h) Use of communities and volunteers to assist in implementing the work plan where feasible and practical.

(3) The data and recommendations produced from the work plan and other available nearshore data shall be used by the State Department of Fish and Wildlife, in consultation with the Ocean Policy Advisory Council, to recommend the number, size, location and restriction limits of the potential sites for marine reserve designation, consistent with Executive Order 08-07. If, through this process, it is determined that other appropriate sites need to be considered or that potential sites are not consistent with Executive Order 08-07, then the data and recommendations produced shall be provided to the public, the State Department of Fish and Wildlife and other relevant state agencies for future purposes relevant to nearshore management. [2009 c.847 §2]

Note: See note under 196.540.

196.550 Funding. (1) The State Department of Fish and Wildlife may accept only gifts, grants or contributions from any source for deposit in the State Wildlife Fund established in ORS 496.300 that are consistent with the department’s work plan specified in ORS 196.545.

(2) Any designation of marine reserves in Oregon’s territorial sea must include commitments by relevant state agencies to pursue long-term funding necessary to enforce prohibitions, support necessary research and monitoring and provide for public education.

(3) If funding cannot be secured to meet the enforcement and research-based monitoring needs associated with the goals specified in ORS 196.545 (2)(e), agencies responsible for managing the marine reserves shall make recommendations to the State Fish and Wildlife Commission and the Legislative Assembly and initiate actions to scale down or suspend fisheries prohibitions in the marine reserves. [2009 c.847 §5]

Note: See note under 196.540.

196.555 Reporting; rules. Designation of marine reserves requires periodic reporting by the State Department of Fish and Wildlife in consultation with other relevant state agencies on the accomplishment of the goals described in ORS 196.545 (2)(e). The State Department of Fish and Wildlife and the State Land Board shall, based on review of the periodic reporting, initiate appropriate rulemaking adjustments that may include size, location and restrictions on marine reserves. [2009 c.847 §6]

Note: See note under 196.540.

(Miscellaneous)

196.575 Authorization to obtain federal oceanographic data; joint liaison program; use of data. (1) The Department of Land Conservation and Development is authorized to participate on behalf of the State of Oregon with the States of Washington, California, Alaska and Hawaii in a joint liaison program with the Center for Ocean Analysis and Prediction of the National Oceanic and Atmospheric Administration.

(2) The objective of the program is to assist the states in taking maximum advantage of the oceanographic data, products and services available from the federal government through the Center for Ocean Analysis and Prediction.

(3) The Department of Land Conservation and Development shall integrate data obtained through the liaison program for use by other state agencies and maximize the use of the State Service Center for Geographic Information Systems. [1991 c.524 §§1,3]

Note: 196.575 and 196.580 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 196 by legislative action. See Preface to Oregon Revised Statutes for further explanation.

196.580 Liaison program duties. (1) The liaison program shall:

(a) Assist state and local governments to become fully aware of oceanographic data and products available from the federal government and in particular from the Center for Ocean Analysis and Prediction.

(b) Assist the Center for Ocean Analysis and Prediction and the National Oceanic and Atmospheric Administration to become more fully aware of state and local problems and the requirements of state and local governments.

(c) Assist in setting up lines of communication to move oceanographic data and products from the Center for Ocean Analysis and Prediction to the people in the states who need those data and products.

(2) The liaison program also shall include workshops for small groups of technical experts from state and local governments, academic institutions and the private sector. The workshops shall be held at the Center for Ocean Analysis and Prediction in Monterey, California, and at other facilities in the western states as appropriate. [1991 c.524 §2]

Note: See note under 196.575.

MITIGATION

196.600 Definitions for ORS 196.600 to 196.655. As used in ORS 196.600 to 196.655:

(1) “Compensatory mitigation” means activities conducted by a permittee or third party to create, restore, enhance or preserve the functions and values of the water resources of this state to compensate for the removal-fill related adverse effects of project development to waters of this state or to resolve violations of ORS 196.800 to 196.905. Compensatory mitigation for removal-fill activities does not affect permit requirements of other state departments.

(2) “Credit” means the measure of the increase in the functions and values of the water resources of this state achieved at a mitigation bank site.

(3) “Mitigation bank” means a site created, restored, enhanced or preserved in accordance with ORS 196.600 to 196.655 to compensate for unavoidable adverse impacts to waters of this state due to activities which otherwise comply with the requirements of ORS 196.600 to 196.905.

(4) “Mitigation bank instrument” means the legally binding and enforceable agreement between the Director of the Department of State Lands and a mitigation bank sponsor that formally establishes the mitigation bank and stipulates the terms and conditions of the mitigation bank’s construction, operation and long-term management.

(5) “Off-site compensatory mitigation” means activities conducted away from the project site that create, restore, enhance or preserve the functions and values of the water resources of this state in order to compensate for the adverse impacts to waters of this state from project development.

(6) “On-site compensatory mitigation” means activities conducted at the project site to create, restore, enhance or preserve the functions and values of the water resources of this state in order to compensate for the adverse impacts to waters of this state from project development.

(7) “Permit action” means activity under a specific removal or fill permit or other authorization requested or issued under ORS 196.600 to 196.905.

(8) “Service area” means the boundaries set forth in a mitigation bank instrument that include one or more watersheds identified on the United States Geological Survey, Hydrologic Unit Map - 1974, State of Oregon, for which a mitigation bank provides credits to compensate for adverse effects from project developments to waters of this state. Service areas for mitigation banks are not mutually exclusive.

(9) “Statewide Comprehensive Outdoor Recreation Plan” means the plan created by the State Parks and Recreation Department pursuant to the federal Land and Water Conservation Fund Act of 1965, as amended (16 U.S.C. 460-L et seq.). [Formerly 541.550; 1995 c.370 §2; 2003 c.738 §3; 2009 c.343 §1]

196.605 Purpose. It is the purpose of ORS 196.600 to 196.655 to:

(1) Promote, in concert with other federal and state programs as well as interested parties, the maintenance and conservation of the water resources of this state;

(2) Improve cooperative efforts among private, nonprofit and public entities for the management and protection of the waters of this state;

(3) Offset losses of the functions and values of the water resources of this state caused by activities that otherwise comply with state and federal law in order to create, restore, enhance or preserve those functions and values;

(4) Maintain and encourage a predictable, efficient regulatory framework for environmentally acceptable development;

(5) Provide an option for accomplishing off-site compensatory mitigation when on-site compensatory mitigation is not practicable; and

(6) Allow the use of mitigation banks to offset adverse effects from removal or fill activities on the waters of this state. [Formerly 541.555; 2003 c.738 §4; 2009 c.343 §2]

196.610 Powers of Director of Department of State Lands; fees. Subject to approval by the State Land Board, the Director of the Department of State Lands may:

(1) Charge a fee for purchase of credits in the mitigation bank as provided by ORS 196.600 to 196.655.

(2) Acquire or accept title to lands suitable for use in mitigation banks or actions, or to preserve sensitive or unique habitat in or near the waters of this state.

(3) Pay costs incurred for alterations needed to create, restore, enhance or preserve waters of this state for purposes of carrying out the provisions of ORS 196.600 to 196.655 or 196.800 to 196.905.

(4) Authorize payment of administrative, research or scientific monitoring expenses of the Department of State Lands in carrying out the provisions of ORS 196.600 to 196.655 or 196.800 to 196.905.

(5) Disburse funds received under the federal Coastal Zone Management Act of 1972, as amended (16 U.S.C. 1451 et seq.), for such purposes as specifically stipulated in a grant award.

(6) Receive funds under the federal Emergency Wetlands Resources Act of 1986, P.L. 99-645, for the voluntary acquisition of wetlands and interests therein according to the wetlands provisions of the Statewide Comprehensive Outdoor Recreation Plan. Funds received under the federal Emergency Wetlands Resources Act of 1986, P.L. 99-645, shall be used for nonmitigation complementary purposes and programs of ORS 196.600 to 196.655. [Formerly 541.557; 1993 c.18 §36; 2003 c.738 §5; 2009 c.343 §3]

196.615 Program for mitigation banks; program standards and criteria; rules. (1) In accordance with the provisions of ORS 196.600 to 196.655, upon the approval of the State Land Board, the Director of the Department of State Lands shall initiate and implement a program for mitigation banks. The director shall encourage the development of and the expeditious approval of mitigation banks and other types of compensatory mitigation.

(2) Subject to the approval of the State Land Board, the Department of State Lands shall adopt, by rule, standards and criteria for the site selection process, operation and evaluation of mitigation banks. Criteria to be considered shall include but need not be limited to:

(a) Historical trends relating to the waters of this state, including the estimated rate of current and future losses of the respective types of waters of this state.

(b) The contributions of the waters of this state to:

(A) Wildlife, migratory birds and resident species;

(B) Commercial and sport fisheries;

(D) Outdoor recreation including enhancement of scenic waterways; and

(E) Scientific and research values.

(3) The rules adopted by the department under this section must also include:

(a) Guidelines for the use of mitigation banks to compensate for adverse effects of project development or to resolve violations of ORS 196.800 to 196.905 related to waters of this state; and

(b) Guidelines for allowing a permittee or third party to create a mitigation bank or to conduct compensatory mitigation in order to create, restore, enhance or preserve water resources of this state.

(4) For each mitigation bank, the department shall establish a well-defined plan, including preliminary objectives, inventory of resource values and an evaluation and monitoring program. [Formerly 541.560; 1991 c.67 §48; 2003 c.738 §6; 2009 c.343 §4]

196.620 Resource values and credits for mitigation banks; use and withdrawal of credits; annual evaluation of system by director. (1) For each mitigation bank, the Department of State Lands shall establish a system of resource values and credits.

(2) A credit from a mitigation bank may be withdrawn for a condition imposed on a permit in accordance with ORS 196.825 (5), for any other authorization issued in accordance with ORS 196.800 to 196.905 or to resolve a violation of ORS 196.800 to 196.905. At the request of a mitigation bank sponsor, the Director of the Department of State Lands may authorize the withdrawal of mitigation bank credits by a public benefit corporation as defined in ORS 65.001 or a public body as defined by ORS 174.109 designated by the director for the purpose of reserving credits for future use in accordance with this subsection. The director shall manage such transactions to ensure that each credit is used no more than one time to satisfy a use in accordance with this section.

(3) Credits from a mitigation bank may be used only as described in subsection (2) of this section for permits, authorizations or resolutions of violations approved within the service area of the mitigation bank, consistent with the mitigation bank instrument, unless the director determines that it is environmentally preferable to exceed this limitation.

(4) Credits from an estuarine mitigation bank may be used only as described in subsection (2) of this section for permits, authorizations or resolutions of violations approved within the same estuarine ecological system unless the director determines that it is environmentally preferable to exceed this limitation.

(5) The director may not withdraw any credits from any mitigation bank until the director has:

(a) Taken actions sufficient to establish hydrological function of the mitigation bank site;

(b) Conducted other creation, restoration, enhancement or preservation actions to establish other functions and values at the mitigation bank site; and

(c) Evaluated the results of the actions and determined that a high probability exists that the functions and values of the mitigation bank site are equal to or greater than the functions and values of the area to be impacted or that the functions and values of the mitigation bank compensate for unavoidable adverse effects on the waters of this state due to the activities otherwise allowed under ORS 196.600 to 196.905.

(6) The price for any mitigation credit shall be set at an amount that will compensate the state for all of the costs and expenses the state has incurred and is expected to incur in establishing and maintaining that portion of the mitigation bank.

(7) The director shall not consider the availability or nonavailability of mitigation bank credits in deciding whether to grant or deny any removal or fill permit under ORS 196.600 to 196.905.

(8) The director annually shall:

(a) Evaluate the functions and values created within each mitigation bank site; and

(b) Compare the current functions and values with those that the director anticipated that the mitigation bank would provide. If the director finds any significant disparity between the actual and anticipated functions and values, the director shall:

(A) Suspend the withdrawal of credits to that mitigation site; or

(B) Take prompt action to ensure that the anticipated functions and values are established.

(9) The director may not withdraw credits from the mitigation bank for a specific permit, authorization or resolution of a violation if the director determines that:

(a) The credits for that specific permit, authorization or resolution of a violation would not adequately maintain habitat or species diversity;

(b) The mitigation bank site for which credits are proposed to be withdrawn is not sufficiently similar in functions and values to the area to be impacted; or

(c) The functions and values of the mitigation bank do not compensate for unavoidable adverse effects on the waters of this state due to the activities otherwise allowed under ORS 196.600 to 196.905. [Formerly 541.565; 1997 c.444 §3; 2003 c.738 §7; 2005 c.22 §135; 2007 c.804 §70; 2007 c.849 §10; 2009 c.343 §5; 2011 c.370 §2]

196.623 Watershed enhancement project as mitigation bank; sale of mitigation credit. (1) The Department of State Lands may approve a watershed enhancement program and certify the project as a mitigation bank under ORS 196.600 to 196.655 if the watershed enhancement program complies with the rules adopted by the department under ORS 196.615 for certification of a program as a mitigation bank.

(2) A person, state agency, federal agency, federally recognized Indian tribe, watershed council or political subdivision in this state that owns land upon which is located a watershed enhancement program that qualifies as a mitigation bank under subsection (1) of this section may sell mitigation credit from the mitigation bank subject to ORS 196.600 to 196.655 and the rules of the Department of State Lands adopted under ORS 196.600 to 196.655. [1997 c.444 §2; 2009 c.343 §6]

196.625 Fill and removal activities in mitigation banks; reports. (1) The Director of the Department of State Lands shall maintain a record of fill and removal activities and actions for each mitigation bank implemented and conduct monitoring of mitigation banks with moneys from the Oregon Removal-Fill Mitigation Fund.

(2) The director shall provide annual reports to the State Land Board on moneys spent and received for each mitigation bank. [Formerly 541.567; 2003 c.738 §8; 2009 c.343 §7]

196.630 Rules. Subject to the approval of the State Land Board, the Director of the Department of State Lands shall adopt rules according to the provisions of ORS chapter 183 to carry out the provisions of ORS 196.600 to 196.655. [Formerly 541.570]

196.635 Director to consult and cooperate with other agencies and interested parties. (1) The provisions of ORS 196.600 to 196.655 shall be carried out by the Director of the Department of State Lands. The Department of State Lands shall solicit, but not be bound by, comments from the State Department of Fish and Wildlife, Department of Transportation, Department of Land Conservation and Development, Department of Environmental Quality, Oregon Business Development Department, federal natural resources and regulatory agencies, affected local governments and special districts, conservation organizations and other interested parties. All comments shall be in writing and provided to the Department of State Lands and mitigation bank sponsor within 30 days of solicitation by the Department of State Lands. If comments are not received by the Department of State Lands from a state agency or from an affected local government or special district within 30 days of solicitation, the director shall assume that the state agency, local government or special district does not desire to provide comments.

(2) In cooperation with the parties in subsection (1) of this section, the director, in consultation with the State Land Board, shall:

(a) Review opportunities for inclusion of appropriate wetlands in the Statewide Comprehensive Outdoor Recreation Plan.

(b) Develop and recommend a wetlands priority plan for inclusion in the Statewide Comprehensive Outdoor Recreation Plan. The wetlands priority plan shall be complementary to the purposes and programs under ORS 196.600 to 196.655.

(3) The director shall confer with the Oregon Watershed Enhancement Board to develop criteria to certify watershed enhancement projects as mitigation banks. [Formerly 541.575; 1997 c.444 §4; 2003 c.738 §9]

196.640 Oregon Removal-Fill Mitigation Fund; rules. (1) The Oregon Removal-Fill Mitigation Fund is established, separate and distinct from the General Fund. All moneys received under ORS 196.645 shall be paid into the State Treasury and credited to the Oregon Removal-Fill Mitigation Fund. All moneys in the fund are appropriated continuously to the Department of State Lands to be used by the department as set forth in ORS 196.650. The moneys in the fund may be invested and reinvested as provided in ORS 293.701 to 293.820. Interest earned by the fund shall be credited to the fund.

(2) The department shall keep a record of all moneys deposited in the fund. The record shall indicate by separate cumulative accounts the source from which the moneys are derived and the individual activity or program against which each withdrawal is charged.

(3) The department shall publish annually the record of moneys deposited in and removed from the fund.

(4) The department may adopt rules for prioritizing expenditures from the fund for the purposes specified in ORS 196.650. [Formerly 541.577; 2003 c.738 §10; 2009 c.343 §9]

196.643 Payments to comply with permit condition, authorization or resolution of violation. A person who provides off-site compensatory mitigation in order to comply with a condition imposed on a permit in accordance with ORS 196.825 (5), an authorization issued in accordance with ORS 196.800 to 196.905 or a resolution of a violation of ORS 196.800 to 196.905 may make a payment for credits to an approved mitigation bank with available credits, or to the Oregon Removal-Fill Mitigation Fund, if credits from a mitigation bank are not available. If the person is making a payment to the Oregon Removal-Fill Mitigation Fund, the payment shall be equal to the average cost of credits available from all active mitigation banks in the state. [2003 c.738 §22; 2007 c.849 §11; 2009 c.343 §10; 2011 c.370 §3]

196.645 Sources of fund. The following moneys shall be paid into the Oregon Removal-Fill Mitigation Fund:

(1) Any moneys appropriated for that purpose by the Legislative Assembly;

(2) Moneys received from conditions imposed on a permit, authorizations or resolutions of violations, except civil penalties, involving compensatory mitigation in which the Department of State Lands is the party responsible for the compensatory mitigation;

(3) Moneys awarded for such purposes as specifically stipulated under grants through the federal Emergency Wetlands Resources Act of 1986, P.L. 99-645, or the federal Coastal Zone Management Act of 1972, 16 U.S.C. 1451 et seq., as amended;

(4) Moneys obtained by gift, bequest, donation or grant from any other public or private source for the purposes of ORS 196.600 to 196.655 or 196.800 to 196.905;

(5) Repayment of moneys from the fund, including interest on such moneys; and

(6) Moneys obtained from interest or other earnings from investments of moneys in the fund. [Formerly 541.580; 1999 c.59 §50; 2003 c.738 §11; 2009 c.343 §11]

196.650 Use of fund. The Department of State Lands may use the moneys in the Oregon Removal-Fill Mitigation Fund for the following purposes:

(1) For the voluntary acquisition of land or interests therein suitable for use in mitigation banks.

(2) To pay for specific projects to create, restore, enhance or preserve water resources of this state for purposes of carrying out the provisions of ORS 196.600 to 196.905. Moneys deposited in the fund for impacts to the waters of this state may be used only for projects that create, restore, enhance or preserve water resources of this state.

(3) For the implementation of long-term protection measures related to projects that create, restore, enhance or preserve water resources of this state.

(4) For purchase of credits from approved mitigation banks.

(5) For payment of administrative, research or scientific monitoring expenses of the department in carrying out the provisions of ORS 196.600 to 196.655.

(6) For the disbursal of funds received under the federal Coastal Zone Management Act of 1972, as amended (16 U.S.C. 1451 et seq.), for such purposes as specifically stipulated in a grant award.

(7) For the disbursal of funds received under the federal Emergency Wetlands Resources Act of 1986, P.L. 99-645, for the voluntary acquisition of wetlands and interests therein as identified in the wetlands provisions of the Statewide Comprehensive Outdoor Recreation Plan. [Formerly 541.585; 1993 c.18 §37; 2003 c.738 §12; 2009 c.343 §12]

196.655 Report on Oregon Removal-Fill Mitigation Fund; contents. As part of the report to the State Land Board required under ORS 196.885, the Director of the Department of State Lands shall prepare an annual report on the Oregon Removal-Fill Mitigation Fund. The report shall include, but need not be limited to:

(1) The financial status of the fund;

(2) Creation, restoration, enhancement or preservation activities and credits sold, granted or otherwise disposed of or remaining in mitigation banks established under ORS 196.600 to 196.655;

(3) Portions of the waters of this state, including but not limited to wetlands, acquired with moneys in the fund;

(4) Compensatory mitigation projects financed with moneys in the fund; and

(5) For each mitigation bank, a summary of activities, including but not limited to:

(a) A description of the location, size, number of potential credits and credits withdrawn for each specific permit action; and

(b) The status of all mitigation bank activities pending or completed during the past year. [Formerly 541.587; 2003 c.738 §13; 2009 c.343 §13]

196.660 Effect of ORS 196.600 to 196.655. ORS 196.600 to 196.655 are intended to be supplementary to, and are not intended to abrogate, any state or federal law relating to the waters of this state. [Formerly 541.590; 1999 c.59 §51; 2009 c.343 §14]

196.665 Short title. ORS 196.600 to 196.655 may be cited as the “Oregon Removal-Fill Mitigation Fund Act.” [Formerly 541.595; 2009 c.343 §15]

WETLAND CONSERVATION PLANS

196.668 Legislative findings. The Legislative Assembly finds that:

(1) Wetlands provide a natural means of flood and storm damage protection through the absorption and storage of water during high runoff periods, thereby reducing flood crests and preventing loss of life and property;

(2) Wetlands provide essential breeding, spawning, rearing, feeding, nesting and wintering habitats for a major portion of this state’s fish and wildlife;

(3) Wetlands provide essential habitat for waterfowl using the Pacific Flyway and for the rearing of salmon and other anadromous and resident fish;

(4) Wetlands act as accumulation areas for sediments which retain nutrients and other pollutants that may prevent entry of the pollutants into other waterways;

(5) Wetlands provide a valuable public service of maintaining clean water by retaining nutrients, metals and toxic materials from the water to protect water quality;

(6) Wetlands provide significant opportunities for environmental and ecological research, public recreation and education and provide scenic diversity and aesthetic value as open space and areas of visual enjoyment;

(7) Much of this state’s original wetlands have been diked, drained, filled, dredged, ditched or otherwise altered;

(8) There is continuing development pressure on wetlands in Oregon;

(9) There are often conflicts between wetland protection and other resource values and uses;

(10) Uncoordinated regulation of wetlands by local, state and federal agencies can cause confusion, frustration and unreasonable delay and uncertainty for the general public; and

(11) Wetland management is a matter of this state’s concern since benefits and impacts related to wetland resources can be international, national, regional and statewide in scope. [1989 c.837 §2]

196.670 [Formerly 541.605; renumbered 196.800 in 1989]

196.672 Policy. In addition to the policy described in ORS 196.805, it is the policy of the State of Oregon to:

(1) Promote the protection, conservation and best use of wetland resources, their functions and values through the integration and close coordination of statewide planning goals, local comprehensive plans and state and federal regulatory programs.

(2) Use a single definition of “wetlands” for the purposes of ORS 196.800 to 196.905 and statewide planning goals and a single, uniform methodology of delineating wetland boundaries.

(3) Develop a statewide inventory of wetlands based on uniform identification standards and criteria at a scale practicable for planning and regulatory purposes, and to make such inventory available to state agencies and local governments to facilitate better management of wetland resources and closer coordination of local, state and federal wetland programs.

(4) Maintain a stable resource base of wetlands through the mitigation of losses of wetland resources and the adoption of the procedural mitigation standard currently used by federal agencies.

(5) Establish the opportunity to increase wetland resources by encouraging wetland restoration and creation where appropriate.

(6) Reduce the delays and uncertainty which can occur in the current wetland planning and regulatory framework through improved coordination of the provisions in ORS 196.800 to 196.905 with local land use planning and regulation and by providing mechanisms for expedited permit review consistent with the protection and conservation of wetland resources.

(7) Continue to meet the requirements of federal law in the protection and management of wetland resources, while asserting the interests of this state, in concert with those of local governments in urging the federal resource and regulatory agencies to develop a uniform wetland policy and more consistent, cohesive standards to implement the Federal Water Pollution Control Act (33 U.S.C. 1344).

(8) Develop and provide information to the general public concerning the functions, values and distribution of wetlands of this state to raise public awareness of these resources.

(9) Promote the protection of wetland values on private lands by developing and using public recognition programs, incentives and other nonregulatory actions.

(10) Encourage wetlands as an interim use of mining and construction sites on lands that were not originally wetlands and are designated for other than wetland purposes in an acknowledged comprehensive plan, while insuring that interim wetland use does not limit the future use of such sites for mining and construction. [1989 c.837 §3]

196.674 Statewide Wetlands Inventory; rules. (1) The Department of State Lands shall compile and maintain a comprehensive Statewide Wetlands Inventory.

(2) In compiling the Statewide Wetlands Inventory, the department shall develop, by rule, a system for uniform wetland identification, delineation and comprehensive mapping. Initial inventories shall be based upon the National Wetlands Inventory prepared by the United States Department of the Interior, Fish and Wildlife Service. The Department of State Lands shall consult with the public, local governments and affected state and federal agencies concerning the accuracy of the inventory.

(3) The Department of State Lands shall revise the inventory maps as new or more complete information becomes available.

(4) The Department of State Lands shall provide each city and county planning office with copies of the Statewide Wetlands Inventory covering the local jurisdiction.

(5) The Department of State Lands shall provide each state agency with a copy of the inventory upon request.

(6) Copies of the Statewide Wetlands Inventory shall be made available to the general public, through the Department of State Lands, upon payment of a fee to offset administrative and reproduction costs.

(7) A wetland inventory developed by another party may be utilized by the Department of State Lands if it is consistent with standards adopted pursuant to this section, after consulting with the affected local government, and is reviewed and approved by the Department of State Lands as complying with the standards adopted pursuant to subsection (2) of this section.

(8) Nothing in this section shall restrict the regulatory jurisdiction of the Department of State Lands under ORS 196.800 to 196.905.

(9) In compiling and updating the Statewide Wetlands Inventory, the Department of State Lands shall identify opportunities for wetland creation, restoration and enhancement when the information is available. [1989 c.837 §6; 2003 c.253 §6]

196.675 [Formerly 541.610; renumbered 196.805 in 1989]

196.676 Response to notices from local governments. The Department of State Lands shall respond to the notice received from local governments pursuant to ORS 215.418 (1) and 227.350 (1) within 30 days of receipt of the notice. The response shall state whether a permit is or in the future will be required or whether a permit has been issued by the department for the activity which is subject to notice. [1989 c.837 §7]

196.678 Wetland conservation plans; contents; procedure for adopting. (1) Any city or county may develop and submit to the Department of State Lands a wetland conservation plan for review pursuant to the provisions of ORS 196.678 to 196.684.

(2) A wetland conservation plan shall include the following elements:

(a) A description and maps of the area to be covered by the plan;

(b) A detailed inventory of the wetlands, identifying the location, quality and quantity of the wetland resource and the source of the water for the wetlands within the area covered by the plan;

(c) An assessment of wetland functions and values, including an historical analysis of wetland degradation, alterations and losses;

(d) Designation of wetland areas for protection, conservation or development. Wetlands within areas designated for development shall be delineated to determine regulatory boundaries;

(e) A mitigation plan, including a program for replacement of planned wetland losses and restoration of lost functions and values through creation of new wetlands or enhancement of existing wetland areas which designates specific sites within the plan area and actions for restoration and enhancement;

(f) Policies and implementing measures establishing protection, conservation and best use of the wetlands in the plan area;

(g) Specification of sites for fill or removal, or both, and the conditions and procedures under which fill or removal, or both, may occur;

(h) Monitoring provisions that insure the wetland mitigation measures are implemented and mitigation goals are achieved;

(i) Identification of public uses of the wetlands and waters and conflicting planned uses; and

(j) Specification of buffer areas and uses allowed on lands which are adjacent to wetlands and which are necessary to maintain, protect or restore wetland functions and values.

(3) The proposed wetland conservation plan shall be adopted by the affected local government according to the procedures set forth in ORS 197.610 to 197.625. [1989 c.837 §10]

196.680 [Formerly 541.615; renumbered 196.810 in 1989]

196.681 Duties of department; standards for approval of plan; conditions for approval; order. (1) In accordance with rules adopted pursuant to this chapter, the Department of State Lands shall:

(a) Review any proposed wetland conservation plan or proposed amendment to an approved wetland conservation plan against the standards in this section;

(b) Prepare a proposed order that approves, approves with conditions or denies the proposed wetland conservation plan or proposed amendment to an approved wetland conservation plan;

(d) Consult with affected local, state and federal agencies; and

(e) Consider the applicable findings made in the order of acknowledgment issued by the Land Conservation and Development Commission.

(2) The Director of the Department of State Lands may approve by order a wetland conservation plan that includes the necessary elements of ORS 196.678 (2) and meets the standards of subsections (3) and (4) of this section.

(3) A wetland conservation plan shall comply with the following standards:

(a) Uses and activities permitted in the plan including fill or removal, or both, conform to sound policies of conservation and will not interfere with public health and safety;

(b) Uses and activities permitted in the plan including fill or removal, or both, are not inconsistent with the protection, conservation and best use of the water resources of this state and the use of state waters for navigation, fishing and public recreation; and

(c) Designation of wetlands for protection, conservation and development is consistent with the resource functions and values of the area and the capability of the wetland area to withstand alterations and maintain important functions and values.

(4) Wetland areas may be designated for development including fill or removal, or both, only if they meet the following standards:

(a) There is a public need for the proposed uses set forth in the acknowledged comprehensive plan for the area;

(b) Any planned wetland losses shall be fully offset by creation, restoration or enhancement of wetland functions and values or in an estuarine area, estuarine resource replacement is consistent with ORS 196.830; and

(5) Approval by the director of a wetland conservation plan shall be conditioned upon adoption by the affected local governments of comprehensive plan policies and land use regulations consistent with and sufficient to implement the wetland conservation plan. Appropriate implementing measures may include the following planning and zoning requirements regulating:

(a) Adjacent lands or buffer areas necessary to maintain, protect or restore wetland functions and values, including riparian vegetation, and the uses to be allowed in those areas;

(b) Sites for mitigation of impacts from development activities;

(d) Activities or location of buildings, structures and improvements which may affect wetland values or functions, such as storm water runoff.

(6) The director shall issue an order approving, approving with conditions or denying a wetland conservation plan, including a clear statement of findings which sets forth the basis for the approval, conditioning or denial. The order shall include:

(a) A clear statement of findings that the elements specified in ORS 196.678 (2) have been developed;

(b) The findings in support of the determination of compliance or noncompliance with the standards in subsections (3) and (4) of this section; and

(7) The director may, as a part of an order approving a plan, authorize site-specific fill or removal without an individual permit as required by ORS 196.810 provided that:

(a) The director adopts findings demonstrating that fill or removal for any proposed project complies with ORS 196.682 (1)(a) to (e); or

(b) The director adopts findings that specific areas of fill or removal within areas designated as development in the plan meet the following standards:

(A) The fill or removal approved by the order will result in minimal impacts to the wetland system in the planning area;

(B) The public need for the proposed area of fill or removal outweighs the environmental damage likely to result from full development;

(C) The director conditions any such order as necessary to ensure that the fill or removal, or both, is designed to minimize impacts from implementing the project; and

(D) Full replacement of wetland losses is provided through creation, restoration or enhancement of wetlands with comparable functions and values.

(8) Upon a finding by the director that a fill or removal, or both, authorized under subsection (7)(b) of this section has caused or is likely to cause more than minimal adverse impact to the wetland system considering required mitigation conditions, the director shall revise the order to require individual permit review according to ORS 196.682 or provide additional conditions to ensure that adverse impacts are minimal. Such revision shall not be subject to ORS 196.684. [1989 c.837 §11; 1999 c.59 §52]

196.682 Permits required for removal or fill; conditions on issuance of permit. (1) Except where otherwise provided by the order approving the plan, individual permit applications shall be required for removal or fill, or both, in areas subject to an approved wetland conservation plan. If individual permit applications are to be reviewed under the authority of the Director of the Department of State Lands, then application fees and review procedures shall be in accordance with ORS 196.815, 196.825 and 196.835. In lieu of the substantive standards for permit issuance in ORS 196.825 (3), the Department of State Lands shall issue a permit if the removal or fill, or both, is consistent with the wetland conservation plan or can be conditioned to be consistent with the plan. The department shall condition any such permit as necessary to ensure that the project:

(a) Is properly designed or configured to minimize the need for alterations to waters of this state;

(b) Is the minimum size necessary to reasonably provide for the proposed use;

(d) Is designed to minimize impacts from implementing the project; and

(e) Is conditioned to ensure wetland creation, restoration, enhancement or preservation measures are implemented to fully replace impacted resources.

(2) In any order approving a plan that authorizes any fill or removal or both, without the necessity of subsequently obtaining an individual permit, the director shall condition such approval as necessary to ensure that the project complies with the conditions of subsection (1) of this section and clearly delineates the wetland area in which fill or removal, or both, is to occur. [1989 c.837 §12; 2007 c.849 §12; 2009 c.343 §16; 2011 c.370 §4]

196.684 Amendment of plans; review of plans by department; review of orders by Land Use Board of Appeals. (1) Local governments shall provide notice to the Department of State Lands of any proposed amendments to the land use plan and ordinances affecting lands subject to a wetland conservation plan approved under this section.

(2) Amendments to plan policies, maps and implementing ordinances by the local government within an approved wetland conservation plan shall be reviewed by the department against the requirements of this section. These provisions do not exempt local governments from the provisions of ORS 197.610 to 197.625.

(3) The Director of the Department of State Lands shall provide notice and the opportunity for public comment and hearing as defined by rule on the matter of including the amendment in the wetland conservation plan.

(4) If the director finds that the proposed local government amendment to acknowledged comprehensive plan and land use regulations meets the requirements of ORS 196.681, the director shall approve the plan by order, and notify the local government within 10 days of the completion of the public review provided in subsection (3) of this section.

(5) If the amendments to acknowledged comprehensive plan and land use regulations adopted by the local government are determined not to comply with the requirements of ORS 196.668 to 196.692, 196.800, 196.810, 196.825, 196.830, 196.850 to 196.860, 196.885, 196.905, 197.015, 197.279, 215.213, 215.283, 215.284, 215.418 and 227.350, the director shall revoke the approval order or amend the order to insure compliance with the requirements of ORS 196.668 to 196.692, 196.800, 196.810, 196.825, 196.830, 196.850 to 196.860, 196.885, 196.905, 197.015, 197.279, 215.213, 215.283, 215.284, 215.418 and 227.350.

(6) The department shall review each approved wetland conservation plan every five years. After such review the director shall either modify, reissue or rescind the order approving the plan.

(7) In conducting the five-year review of an approved wetland conservation plan, the director shall provide notice and the opportunity for public comment and hearing on whether:

(a) There has been a substantial change in circumstances that would affect the wetland resources subject to the plan and would adversely affect the compliance of the plan with the standards in ORS 196.681;

(b) Changes have been made in applicable state law, statewide land use planning goals, federal law or agency rules that require the plan to be changed; and

(c) In the director’s evaluation, the plan as implemented over the preceding five years meets the goals established in the plan.

(8) Wetland conservation plans approved by the Director of the Department of State Lands pursuant to ORS 196.668 to 196.692 shall be deemed to comply with the requirements of any statewide planning goals relating to wetlands, other than estuarine wetlands, for those areas, uses and activities which are regulated by the plan.

(9) An order by the director regarding approval, amendment or review of a wetland conservation plan shall be reviewable by the Land Use Board of Appeals as a land use decision of a state agency. For the purpose of such review, the director’s order shall not become final until the local government adopts its wetland conservation plan or plan amendment. The Land Use Board of Appeals shall consolidate for review appeals of the director’s order and the local government adoption. The Land Use Board of Appeals shall review such order for compliance with the requirements of ORS 196.668 to 196.692, 196.800, 196.810, 196.825, 196.830, 196.850 to 196.860, 196.885, 196.905, 197.015, 197.279, 215.213, 215.283, 215.284, 215.418 and 227.350.

(10) Nothing in this section shall be construed to require a contested case proceeding regarding approval, amendment or review of a wetland conservation plan.

(11) Nothing in this section shall be construed to affect the evaluation of a permit application in areas that do not have a wetland conservation plan.

(12) Upon a finding by the director, after a public hearing, that an affected local government is not enforcing the comprehensive plan provisions or land use regulations set forth in the conditions of the order, as specified in ORS 196.681 (5), and that such lack of enforcement has resulted or would result in adverse impacts to wetlands, the director shall modify, suspend or revoke approval of the wetland conservation plan. [1989 c.837 §13]

196.685 [Formerly 541.620; renumbered 196.815 in 1989]

196.686 Acknowledged estuary management plans; review and approval; hearings; final order. (1) For the purposes of this section, an acknowledged estuary management plan includes the comprehensive plan and land use regulations adopted by cities and counties to satisfy the requirement of statewide planning goals related to estuarine resources including shoreland portions of estuarine sites designated for development as those plans and regulations existed on January 1, 1989.

(2) Any city or county may submit an acknowledged estuary management plan for review and approval by the Department of State Lands pursuant to the provisions of this section. The plan shall be submitted with a written request for review.

(3) To allow timely and effective review of acknowledged estuary management plans, the department may limit acceptance for review to two plans but not more than one plan for a deep draft development estuary at any one time.

(4) With the consent of the city or county submitting an estuary management plan for review and approval, the department may extend any or all of the deadlines set forth in this section.

(5) Acknowledged estuary management plans shall be presumed to comply with requirements for approval of wetland conservation plans specified in ORS 196.681.

(6) Within 10 days of acceptance of a request for review, the department shall provide notice to affected state agencies, local governments, federal agencies and the public of receipt of the acknowledged estuary management plan and of the request for review and approval of the acknowledged estuary management plan as a wetland conservation plan.

(7) Within 30 days of acceptance of a request for review and upon provision of at least two weeks’ notice, the department shall hold a public informational hearing on the proposed approval of the acknowledged estuary management plan as a wetland conservation plan.

(8) Within 60 days of acceptance of the request for review, the department shall conduct a preliminary review of the acknowledged estuary management plan. The department shall consult with the affected local government prior to finalizing the preliminary review.

(9) Except as provided in subsection (10) of this section, the Director of the Department of State Lands shall approve the acknowledged estuary management plan by order within 60 days of completion of the preliminary review.

(10) A contested case hearing shall be held within 30 days of the completion of the preliminary review or receipt of a request for hearing if:

(a) The director determines there is probable cause to believe that the estuary management plan does not meet the standards for approving wetland conservation plans or unreasonably interferes with the use of the estuary for navigation, fisheries or public recreation; or

(b) A hearing is requested and the request:

(A) Is made in writing within 60 days of the date of mailing of notice of completion of review;

(B) Clearly states the reasons for requesting the hearing; and

(C) Provides sufficient information for the director to determine that there is probable cause to believe that the estuary management plan does not meet the standards for approving wetland conservation plans or unreasonably interferes with the use of the estuary for navigation, fisheries or public recreation.

(11) The director shall approve the acknowledged estuary management plan as a wetland conservation plan by order unless the director finds by a preponderance of the evidence that the estuary management plan does not meet the standards for approving wetland conservation plans or unreasonably interferes with the use of the estuary for navigation, fisheries or public recreation or that substantial fills proposed in an estuary management plan for nonwater dependent use are not for a public use and would not satisfy a public need that outweighs harm to navigation, fisheries or public recreation.

(12) The director shall prepare a proposed order for review by the parties within 30 days of any contested case hearing held pursuant to subsection (10) of this section.

(13) A final order from the director that recommends, pursuant to subsection (8) of this section, denial of an estuary management plan as a wetland conservation plan shall identify deficient elements and provisions of the acknowledged estuary management plan and what measures may be taken to correct those deficiencies.

(14) Individual permit applications shall be required for removal or fill, or both, in areas subject to an approved estuary management plan. Individual permit applications shall be reviewed in accordance with ORS 196.815, 196.825, 196.830 and 196.835. In lieu of the substantive standards for permit issuance in ORS 196.825 (3), the department shall issue a permit if the removal or fill, or both, is determined by the director to be consistent with the estuary management plan or can be conditioned to be consistent with the plan. The department shall condition any such permit as necessary to ensure that the project:

(a) Is designed or configured to minimize alterations to waters of this state;

(b) Is the minimum size necessary to reasonably provide for the proposed use;

(c) Is consistent with the resource capabilities of the area and the purposes of the management unit, unless this has been previously determined in the approved estuary management plan;

(d) Is designed to minimize impacts from implementing the project; and

(e) Has estuarine resource replacement measures for creation, restoration, enhancement or preservation that replaces impacted resources.

(15) Judicial review of an order granting or denying approval of an estuary management plan as provided in this section shall be as provided in ORS 183.470.

(16) Following approval by the director of an estuary management plan, the requirements of ORS 196.684 shall apply to the approved estuary management plan. [1989 c.837 §14; 2007 c.849 §13; 2009 c.343 §17; 2011 c.370 §5]

196.687 Regulation of alteration or fill of artificially created wetlands. (1) Notwithstanding the provisions of ORS 196.600 to 196.905, state or local governments shall not prohibit or restrict the alteration or fill of wetland areas up to one acre in size that have been artificially created from upland for the purpose of controlling, storing or maintaining storm water.

(2) An area that was developed as a storm water detention or retention facility as a condition of a development approval shall not be altered or filled without acceptance by the approving authority of a plan to mitigate the loss of functional capabilities of the detention or retention facility.

(3) Until a local government adopts an ordinance to conform its comprehensive plan and land use regulations to the provisions of this section, the provisions of subsection (1) of this section shall apply directly to proposed activities in wetland areas. Any portion of a goal, rule, comprehensive plan, land use regulation or ordinance not in conformance with the provisions of this section on September 9, 1995:

(a) Shall not be implemented or enforced; and

(b) Has no legal effect.

(4) The provisions of this section do not apply to land used to mitigate the loss of wetlands.

(5) If the Department of State Lands assumes responsibility under 33 U.S.C. §1344(g) of the Federal Water Pollution Control Act, ORS 196.600 to 196.905 shall apply to artificially created wetlands described in subsections (1) and (2) of this section. [1995 c.482 §1]

Note: 196.687 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 196 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

196.688 Public information program. (1) The Department of State Lands shall develop a public information program to educate permit applicants and the general public about:

(a) Wetland functions and values.

(b) The status and trends of Oregon’s wetlands.

(d) Wetland regulation.

(2) Upon request, the department shall, within the limits of staffing ability, provide technical assistance to other state agencies and local governments and the public in identifying and delineating the boundaries of wetlands. [1989 c.837 §20]

196.690 [Formerly 541.622; renumbered 196.820 in 1989]

196.692 Rules. (1) The Department of State Lands shall adopt rules to carry out the provisions of ORS 196.668 to 196.692, 196.800, 196.810, 196.818, 196.825, 196.830, 196.850 to 196.860, 196.885, 196.905, 197.015, 197.279, 215.213, 215.283, 215.284, 215.418 and 227.350.

(2) Rules adopted pursuant to subsection (1) of this section shall include rules governing the application for and issuance of permits to remove material from the beds or banks of any waters of this state or to fill any waters of this state including, but not limited to, clear and objective standards and criteria for determining whether to grant or deny a permit. [1989 c.837 §32; 2001 c.460 §1; 2007 c.850 §4]

196.695 [Formerly 541.625; renumbered 196.825 in 1989]

196.700 [Formerly 541.626; renumbered 196.830 in 1989]

196.705 [Formerly 541.627; renumbered 196.835 in 1989]

196.710 [Formerly 541.630; renumbered 196.840 in 1989]

196.715 [Formerly 541.635; renumbered 196.845 in 1989]

196.718 [Enacted in lieu of 541.640; renumbered 196.850 in 1989]

196.720 [Formerly 541.645; renumbered 196.855 in 1989]

196.725 [Formerly 541.650; renumbered 196.860 in 1989]

196.730 [Formerly 541.655; renumbered 196.865 in 1989]