Note: Oregon SB 765 was defeated.     
 
 
 

76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session

NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .

LC 1696

                         Senate Bill 765

Sponsored by Senators ATKINSON, HASS; Senator BATES
 

                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.

  Creates offense of practicing recreational dredge mining
without license. Punishes by maximum of 30 days' imprisonment,
$1,250 fine, or both.
  Directs counties to establish process for issuing recreational
dredge mining licenses. Imposes licensing fee of $50 for
residents and $2,500 for nonresidents. Exempts persons who hold
recreational dredge mining license from fill and removal program.
  Declares emergency, effective on passage.

                        A BILL FOR AN ACT
Relating to recreational dredge mining; creating new provisions;
  amending ORS 196.905 and 390.835; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + As used in sections 1 to 3 of this 2011 Act:
  (1) 'Nonresident' means a person who is not a resident;
  (2)(a) 'Recreational dredge mining' means the use of a
motorized dredge or other motorized equipment to:
  (A) Remove material from the beds or banks of state waterways
for purposes that are consistent with a hobby or casual use; or
  (B) Fill a state waterway for purposes that are consistent with
a hobby or casual use.
  (b) 'Recreational dredge mining' does not include:
  (A) The removal of material from the beds or banks of any state
waterway that abuts land owned by the person conducting or
authorizing the removal; or
  (B) The filling of any state waterway that abuts land owned by
the person conducting or authorizing the removal.
  (3) 'Resident' means a person who has resided in this state for
at least 180 days prior to the date on which the person applies
for a recreational dredge mining license.
  (4) 'Scenic waterway' has the meaning given that term in ORS
390.805. + }
  SECTION 2.  { + (1) A person commits the crime of practicing
recreational dredge mining without a license if the person
practices recreational dredge mining without acquiring a
recreational dredge mining license as required by section 3 of
this 2011 Act.
  (2) Practicing recreational dredge mining without a license is
a Class C misdemeanor. + }
  SECTION 3.  { + (1) A person may not practice recreational
dredge mining in this state unless the person acquires a
recreational dredge mining license from a county. A recreational
dredge mining license is valid only in the county that issues the
license.
  (2) Each county shall establish a process by which the county
clerk issues recreational dredge mining licenses. Each county
clerk shall charge for the issuance of a recreational dredge
mining license a fee of:
  (a) $50 for a resident; or
  (b) $2,500 for a nonresident.
  (3) A recreational dredge mining license expires one year after
the date on which the county issues the license.
  (4) At the time that a person applies for a recreational dredge
mining license, the person must declare whether the person
intends to practice recreational dredge mining on a scenic
waterway. If the person intends to practice recreational dredge
mining on a scenic waterway, the county clerk shall transmit the
person's application to the Department of State Lands so that the
Director of the Department of State Lands may make a finding
under ORS 390.835 (2). The director shall return the application
to the county clerk within two weeks of receiving the
application.
  (5) The county clerk shall deposit all fees collected under
this section into an account maintained by the county treasurer.
The moneys in the account and the interest earned by the account
are reserved for the purpose of funding law enforcement
activities related to enforcing section 2 of this 2011 Act. + }
  SECTION 4. ORS 196.905 is amended to read:
  196.905. (1) Nothing in ORS 196.600 to 196.905 applies to
filling the beds of the waters of this state for the purpose of
constructing, operating and maintaining dams or other diversions
for which permits or certificates have been or shall be issued
under ORS chapter 537 or 539 and for which preliminary permits or
licenses have been or shall be issued under ORS 543.010 to
543.610.
  (2) Nothing in ORS 196.600 to 196.905 applies to removal of
materials from the beds or banks or filling of the waters of a
nonnavigable natural waterway, or any portion thereof, in this
state, if:
  (a) Such waterway or portion is situated within forestland; and
  (b) Such removal or filling is directly connected with a forest
management practice conducted in accordance with ORS 527.610 to
527.770, 527.990 and 527.992.
  (3) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, on converted wetlands for normal farming and
ranching activities such as plowing, grazing, seeding, planting,
cultivating, conventional crop rotation or harvesting.
  (4) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, on lands zoned for exclusive farm use as
described in ORS 215.203 for the following activities:
  (a) Drainage or maintenance of farm or stock ponds; or
  (b) Maintenance of farm roads in such a manner as to not
significantly adversely affect wetlands or any other waters of
this state.
  (5) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, for subsurface drainage by deep ripping, tiling
or moling on converted wetlands that are zoned for exclusive farm
use pursuant to ORS 215.203.
  (6) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, for any activity defined as a farm use in ORS
215.203, on lands zoned for exclusive farm use pursuant to ORS
215.203, if the lands are converted wetlands that are also
certified as prior converted cropland by the Natural Resources
Conservation Service of the United States Department of
Agriculture, or its successor agency, so long as commercial
agricultural production on the land has not been abandoned for
five or more years.
  (7) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, for the reestablishment of crops under federal
conservation reserve program provisions set forth in 16 U.S.C.
3831 as in effect on January 1, 2010.
  (8) The exemptions in subsections (3) to (7) of this section do
not apply to any fill or removal that involves changing an area
of wetlands to a nonfarm use.
  (9) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, for the maintenance or reconstruction of
structures such as dikes, dams, levees, groins, riprap,
tidegates, drainage ditches, irrigation ditches and tile drain
systems, provided that:
  (a) The structure was serviceable within the past five years;
and
  (b) Such maintenance or reconstruction would not significantly
adversely affect wetlands or other waters of this state to a
greater extent than the wetlands or waters of this state were
affected as a result of the original construction of those
structures.
  (10) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, for maintenance, including emergency
reconstruction of recently damaged parts, of currently
serviceable roads or transportation structures such as groins and
riprap protecting roads, causeways and bridge abutments or
approaches.
   { +  (11) Nothing in ORS 196.800 to 196.900 applies to
recreational dredge mining, as defined in section 1 of this 2011
Act. + }
    { - (11) - }   { + (12) + } The Department of State Lands may
adopt a rule that exempts from the requirement to obtain a permit
under ORS 196.800 to 196.900 voluntary habitat restoration
projects that have only minimal adverse impact on waters of this
state.
    { - (12) - }   { + (13) + } As used in this section:
  (a) 'Converted wetlands' means agriculturally managed wetlands
that, on or before June 30, 1989, were brought into commercial
agricultural production by diking, draining, leveling, filling or
any similar hydrologic manipulation and by removal or
manipulation of natural vegetation, and that are managed for
commercial agricultural purposes.
  (b) 'Converted wetlands' does not include any stream, slough,
ditched creek, spring, lake or any other waters of this state
that are located within or adjacent to a converted wetland area.
  SECTION 5. ORS 196.905, as amended by section 6, chapter 516,
Oregon Laws 2001, section 13, chapter 253, Oregon Laws 2003, and
section 4, chapter 342, Oregon Laws 2009, is amended to read:
  196.905. (1) Notwithstanding the exemptions in subsections (3)
to (8) of this section, a permit under ORS 196.600 to 196.905 is
required for any fill or removal of material in or from the
waters of this state when:
  (a) The fill or removal is a part of an activity whose purpose
is to bring an area of state waters into a use to which it was
not previously subject; and
  (b)(A) The flow or circulation of the waters of this state may
be impaired; or
  (B) The reach of the waters may be reduced.
  (2) Nothing in ORS 196.600 to 196.905 applies to removal of
materials from the beds or banks or filling of the waters of a
nonnavigable natural waterway, or any portion thereof, in this
state, if:
  (a) Such waterway or portion is situated within forestland; and
  (b) Such removal or filling is directly connected with a forest
management practice conducted in accordance with ORS 527.610 to
527.770, 527.990 and 527.992.
  (3) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, on converted wetlands for normal farming and
ranching activities such as plowing, grazing, seeding, planting,
cultivating, conventional crop rotation or harvesting.
  (4) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, on lands zoned for exclusive farm use as
described in ORS 215.203 for the following activities:
  (a) Drainage or maintenance of farm or stock ponds; or
  (b) Maintenance of farm roads, provided that:
  (A) The farm roads are constructed and maintained in accordance
with construction practices designed to minimize any adverse
effects to the aquatic environment;
  (B) Borrow material for farm road maintenance does not come
from waters of this state unless authorized by the Department of
State Lands; and
  (C) Maintenance activities are confined to the scope of
construction for the original project.
  (5) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, for any activity defined as a farm use in ORS
215.203, on lands zoned for exclusive farm use pursuant to ORS
215.203, if the lands are converted wetlands that are also
certified as prior converted cropland by the Natural Resources
Conservation Service of the United States Department of
Agriculture, or its successor agency, so long as commercial
agricultural production on the land has not been abandoned for
five or more years.
  (6) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, for the reestablishment of crops under federal
conservation reserve program provisions set forth in 16 U.S.C.
3831 as in effect on January 1, 2010.
  (7) The exemptions in subsections (3) to (6) of this section do
not apply to any fill or removal that involves changing an area
of wetlands or converted wetlands to a nonfarm use.
  (8) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, for the maintenance or reconstruction of
structures such as dikes, dams, levees, groins, riprap,
tidegates, drainage ditches, irrigation ditches and tile drain
systems, provided that:
  (a) The structure was serviceable within the past five years;
and
  (b) Such maintenance or reconstruction would not significantly
adversely affect wetlands or other waters of this state to a
greater extent than the wetlands or waters of this state were
affected as a result of the original construction of those
structures.
  (9) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, for temporary dams constructed for crop or
pasture irrigation purposes that are less than 50 cubic yards,
provided the following conditions are satisfied:
  (a) The removal or filling is conducted during periods that
minimize adverse effects to fish and wildlife in accordance with
guidance provided by the State Department of Fish and Wildlife;
  (b) The removal or filling does not jeopardize a threatened or
endangered species or adversely modify or destroy the habitat of
a threatened or endangered species listed under federal or state
law; and
  (c) Temporary fills are removed in their entirety and the area
is restored to its approximate original elevation.
  (10) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, for maintenance, including emergency
reconstruction of recently damaged parts, of currently
serviceable roads or transportation structures such as groins and
riprap protecting roads, causeways and bridge abutments or
approaches.
  (11) Nothing in ORS 196.800 to 196.900 applies to removal or
filling, or both, for the maintenance of access roads constructed
to move mining equipment, subject to the following conditions:

  (a) The access roads are constructed and maintained in
accordance with construction practices that minimize adverse
effects to the aquatic environment;
  (b) Borrow material for access road maintenance does not come
from waters of this state unless authorized by the Department of
State Lands; and
  (c) Maintenance activities are confined to the scope of
construction for the original project.
   { +  (12) Nothing in ORS 196.800 to 196.900 applies to
recreational dredge mining, as defined in section 1 of this 2011
Act. + }
    { - (12) - }   { + (13) + } The department may adopt a rule
that exempts from the requirement to obtain a permit under ORS
196.800 to 196.900 voluntary habitat restoration projects that
have only minimal adverse impact on waters of this state.
    { - (13) - }   { + (14) + } As used in this section:
  (a)(A) 'Converted wetlands' means agriculturally managed
wetlands that, on or before June 30, 1989, were brought into
commercial agricultural production by diking, draining, leveling,
filling or any similar hydrologic manipulation and by removal or
manipulation of natural vegetation, and that are managed for
commercial agricultural purposes.
  (B) 'Converted wetlands' does not include any stream, slough,
ditched creek, spring, lake or any other waters of this state
that are located within or adjacent to a converted wetland area.
  (b) 'Harvesting' means physically removing crops or other
agricultural products.
  (c) 'Plowing' includes all forms of primary tillage, including
moldboard, chisel or wide-blade plowing, discing, harrowing or
similar means of breaking up, cutting, turning over or stirring
soil to prepare it for planting crops or other agricultural
products. 'Plowing' does not include:
  (A) The redistribution of soil, rock, sand or other surface
materials in a manner that changes areas of waters of this state
into dry land; or
  (B) Rock crushing activities that result in the loss of natural
drainage characteristics, the reduction of water storage and
recharge capability, or the overburdening of natural water
filtration capacity.
  (d) 'Seeding' means the sowing of seed or placement of
seedlings to produce crops or other agricultural products.
  SECTION 6. ORS 390.835 is amended to read:
  390.835. (1) It is declared that the highest and best uses of
the waters within scenic waterways are recreation, fish and
wildlife uses. The free-flowing character of these waters shall
be maintained in quantities necessary for recreation, fish and
wildlife uses. No dam, or reservoir, or other water impoundment
facility shall be constructed on waters within scenic waterways.
No water diversion facility shall be constructed or used except
by right previously established or as permitted by the Water
Resources Commission, upon a finding that such diversion is
necessary to uses designated in ORS 536.310 (12), and in a manner
consistent with the policies set forth under ORS 390.805 to
390.925. The Water Resources Commission shall administer and
enforce the provisions of this subsection.
  (2) Filling of the beds or removal of material from or other
alteration of the beds or banks of scenic waterways for purposes
other than recreational prospecting not requiring a permit
 { + or license + } shall be prohibited, except as permitted by
the Director of the Department of State Lands upon a finding that
 { - such activity - }   { + the issuance of a permit or
license + } would be consistent with the policies set forth under
ORS 390.805 to 390.925 for scenic waterways and { + ,
notwithstanding ORS 196.905 (11), + } in a manner consistent with
the policies set forth under ORS 196.800 to 196.825 and 196.845
to 196.870 for removal of material from the beds and banks and
filling of any waters of this state.   { - The Director of the
Department of State Lands shall administer and enforce the
provisions of this subsection. - }   { + The director shall make
a finding for the issuance of a license under this subsection
within two weeks of receiving the application from the county
clerk who transmitted the application pursuant to section 3 of
this 2011 Act. + }
  (3)(a) Upon a finding of emergency circumstances, the Director
of the Department of State Lands may issue a temporary permit for
the removal, filling or alteration of the beds or banks within a
scenic waterway. The temporary permit shall include conditions
developed after consultation with the State Department of Fish
and Wildlife and the State Parks and Recreation Department.
  (b) As used in this subsection, 'emergency circumstances '
exist if prompt action is necessary to prevent irreparable harm,
injury or damage to persons or property.
  (4) Any person adversely affected or aggrieved by the grant or
denial of a permit  { + or license + } under subsection (2) or
(3) of this section may appeal in accordance with the procedure
set forth in ORS 196.835.
  (5) Nothing in ORS 390.805 to 390.925 affects the authority of
the State Fish and Wildlife Commission to construct facilities or
make improvements to facilitate the passage or propagation of
fish or to exercise other responsibilities in managing fish and
wildlife resources. Nothing in ORS 390.805 to 390.925 affects the
authority of the Water Resources Commission to construct and
maintain stream gauge stations and other facilities related to
the commission's duties in administration of the water laws.
  (6) Upon a finding of necessity under subsection (1) of this
section, the Water Resources Commission may issue a water right
for human consumption not to exceed 0.005 cubic feet per second
per household, or livestock consumption uses not to exceed
one-tenth of one cubic foot per second per 1,000 head of
livestock, as designated in ORS 536.310 (12) within or above a
scenic waterway if the Water Resources Commission makes the
following findings:
  (a) That issuing the water right does not significantly impair
the free-flowing character of these waters in quantities
necessary for recreation, fish and wildlife.
  (b) That issuing the water right is consistent with provisions
pertaining to water appropriation and water rights under ORS
chapters 536 and 537 and rules adopted thereunder.
  (c) That construction, operation and maintenance of the
diversion system will be carried out in a manner consistent with
the purposes set forth in ORS 390.805 to 390.925.
  (d) If the water right is for human consumption, an additional
finding that:
  (A) The applicant cannot reasonably obtain water from any other
source;
  (B) Denial of the water right would result in loss of
reasonable expectations for use of the property; and
  (C) The system installed to divert water shall include
monitoring equipment to permit water use measurement and
reporting.
  (e) If the water right is for livestock consumption, an
additional finding that:
  (A) The right is necessary to prevent the livestock from
watering in or along the stream bed;
  (B) The applicant cannot reasonably obtain water from any other
source; and
  (C) The applicant has excluded livestock from the stream and
its adjacent riparian zone.
  (7) In making the findings required under subsection (6) of
this section, the Water Resources Commission shall consider the
existing or potential cumulative impacts of issuing the water
right.
  (8) The Water Resources Commission may not allow human
consumption and livestock uses authorized under subsection (6) of
this section in excess of a combined cumulative total of one
percent of the average daily flow or one cubic foot per second,
whichever is less, unless:
  (a) The Water Resources Commission, the State Parks and
Recreation Department, the State Department of Fish and Wildlife,
the Department of Environmental Quality and the Department of
State Lands unanimously agree to exceed that amount; and
  (b) Exceeding that amount will not significantly impair the
free-flowing character of these waters in quantities necessary
for recreation, fish and wildlife.
  (9)(a) The provisions of this section shall not apply to a
water right application for the use of ground water as defined in
ORS 537.515, except upon a finding by the Water Resources
Director based on a preponderance of evidence that the use of
ground water will measurably reduce the surface water flows
necessary to maintain the free-flowing character of a scenic
waterway in quantities necessary for recreation, fish and
wildlife.
  (b) The Water Resources Department shall review every
application for the use of ground water to determine whether to
make the finding specified in paragraph (a) of this subsection.
The finding shall be based upon the application of generally
accepted hydrogeologic methods using relevant and available field
information concerning the proposed use.
  (c) In making the determination required by paragraph (a) of
this subsection, the Water Resources Department shall consider
the timing of projected impacts of the proposed use in relation
to other factors, including but not limited to: Changing climate,
recharge, incidental precipitation, out-of-stream appropriations
and return flows.
  (d) If the Water Resources Director makes the finding specified
in paragraph (a) of this subsection, the Water Resources Director
shall issue an order denying the application unless:
  (A) Mitigation is provided in accordance with subsection (10)
of this section; or
  (B) The applicant submits evidence to overcome the finding
under paragraph (a) of this subsection.
  (e) Except as provided under subsection (13) of this section,
if the Water Resources Director does not make the finding
specified in paragraph (a) of this subsection, the Water
Resources Director shall issue an order approving the application
if the application otherwise meets the requirements of ORS
537.505 to 537.795.
  (f) A protest of any order issued under this subsection may be
filed in the same manner as a protest on any application for a
right to appropriate ground water.
  (g) Each water right permit and certificate for appropriation
of ground water issued after July 19, 1995, for which a source of
appropriation is within or above a scenic waterway shall be
conditioned to allow the regulation of the use if analysis of
data available after the permit or certificate is issued
discloses that the appropriation will measurably reduce the
surface water flows necessary to maintain the free-flowing
character of a scenic waterway in quantities necessary for
recreation, fish and wildlife in effect as of the priority date
of the right or as those quantities may be subsequently reduced.
  (h) Nothing in this subsection shall limit the use of ground
water for a use exempted under ORS 537.545.
  (10) The Water Resources Commission or Water Resources Director
shall consider mitigation measures and may include mitigation
measures as conditions in any water right permit or certificate
to ensure the maintenance of the free-flowing character of the
scenic waterway in quantities necessary for recreation, fish and
wildlife.
  (11) The Water Resources Commission and the Water Resources
Director shall carry out their responsibilities under ORS 536.220
to 536.590 with respect to the waters within scenic waterways in
conformity with the provisions of this section.
  (12) As used in this section, 'measurably reduce' means that
the use authorized under subsection (9) of this section will
individually or cumulatively reduce surface water flows within
the scenic waterway in excess of a combined cumulative total of
one percent of the average daily flow or one cubic foot per
second, whichever is less, unless:
  (a) The Water Resources Department, the State Parks and
Recreation Department, the State Department of Fish and Wildlife,
the Department of Environmental Quality and the Department of
State Lands unanimously agree to exceed that amount; and
  (b) Exceeding that amount will not significantly impair the
free-flowing character of these waters in quantities necessary
for recreation, fish and wildlife.
  (13) Before authorizing an appropriation that will reduce
streamflows within a scenic waterway in amounts up to but not
exceeding the amounts described in subsection (12) of this
section, the Water Resources Director shall find:
  (a) That the appropriation will not significantly impair the
free-flowing character of these waters in quantities necessary
for recreation, fish and wildlife.
  (b) That the appropriation is consistent with provisions
pertaining to water appropriations and water rights under ORS
chapters 536 and 537 and the rules adopted thereunder.
  (c) That construction, operation and maintenance of the
appropriation will be carried out in a manner consistent with the
purposes set forth in ORS 390.805 to 390.925.
  (14) No placer mining shall be permitted on waters within
scenic waterways other than recreational placer mining.
  (15) No person shall be required to obtain a permit  { + or
license + } for recreational prospecting resulting in the fill,
removal or other alteration of less than one cubic yard of
material at any one individual site and, cumulatively, not more
than five cubic yards of material from within the bed or wet
perimeter of any single scenic waterway in a single year.
Recreational prospecting shall not occur at any site where fish
eggs are present.
  (16) No provision of this section shall be construed to exempt
recreational placer mining on a scenic waterway, other than
recreational prospecting not requiring a permit { +  or
license + }, from compliance with the provisions of ORS 196.800
to 196.825 and 196.845 to 196.870 or rules adopted pursuant to
ORS 196.800 to 196.825 and 196.845 to 196.870.
  (17) Recreational placer mining, other than recreational
prospecting not requiring a permit  { + or license + }, shall
not:
  (a) Dam or divert a waterway or obstruct fish passage;
  (b) Include nozzling, sluicing or digging outside the wet
perimeter of the stream, nor extend the wet perimeter;
  (c) Include movement of boulders, logs, stumps or other woody
material from the wet perimeter other than movement by hand and
nonmotorized equipment;
  (d) Involve the disturbance of rooted or embedded woody plants,
including trees and shrubs, regardless of their location;
  (e) Include excavation from the streambank;
  (f) Fail to level pits, piles, furrows or potholes outside the
main channel of the waterway upon leaving the site;
  (g) Include operation of a suction dredge without a suction
dredge waste discharge permit from the Department of
Environmental Quality including, but not limited to, a
prohibition against dredging during periods when fish eggs could
be in the dredging site gravel;

  (h) Be conducted on federal lands except as allowed by agencies
of the federal government;
  (i) Impede boating;
  (j) Include operation of a dredge between the hours of 6
p.m. and 8 a.m. within 500 feet of a residence or within 500 feet
of a campground except within a federally designated recreational
mining site; or
  (k) Include operation of a dredge within the marked or posted
swimming area of a designated campground or day use area except
within a federally designated recreational mining site.
  (18) As used in this section:
  (a) 'Bed' means the land within the wet perimeter and any
adjacent nonvegetated dry gravel bar.
   { +  (b) 'License' means a recreational dredge mining license
issued under section 3 of this 2011 Act.
  (c) 'Permit' means a fill or removal permit issued under ORS
196.800 to 196.900. + }
    { - (b) - }   { + (d) + } 'Prospecting' means to search or
explore for samples of gold, silver or other precious minerals,
using nonmotorized methods, from among small quantities of
aggregate.
    { - (c) - }   { + (e) + } 'Recreational placer mining'
includes, but is not limited to, the use of nonmotorized
equipment and motorized surface dredges having an intake nozzle
with an inside diameter not exceeding four inches, a motor no
larger than 16 horsepower and a muffler meeting or exceeding
factory-installed noise reduction standards. 'Recreational placer
mining' does not include recreational prospecting that does not
require a permit { +  or license + }.
    { - (d) - }   { + (f) + } 'Wet perimeter' means the area of
the stream that is underwater, or is exposed as a nonvegetated
dry gravel bar island surrounded on all sides by actively moving
water at the time the activity occurs.
  SECTION 7. ORS 390.835, as amended by section 8, chapter 516,
Oregon Laws 2001, is amended to read:
  390.835. (1) It is declared that the highest and best uses of
the waters within scenic waterways are recreation, fish and
wildlife uses. The free-flowing character of these waters shall
be maintained in quantities necessary for recreation, fish and
wildlife uses. A dam, reservoir or other water impoundment
facility may not be constructed on waters within scenic
waterways.  A water diversion facility may not be constructed or
used except by right previously established or as permitted by
the Water Resources Commission, upon a finding that such
diversion is necessary to uses designated in ORS 536.310 (12),
and in a manner consistent with the policies set forth under ORS
390.805 to 390.925. The Water Resources Commission shall
administer and enforce the provisions of this subsection.
  (2) Filling of the beds or removal of material from or other
alteration of the beds or banks of scenic waterways for purposes
other than recreational prospecting not requiring a permit
 { + or license + } shall be prohibited, except as permitted by
the Director of the Department of State Lands upon a finding that
 { - such activity - }   { + the issuance of a permit or
license + } would be consistent with the policies set forth under
ORS 390.805 to 390.925 for scenic waterways and { + ,
notwithstanding ORS 196.905 (12), + } in a manner consistent with
the policies set forth under ORS 196.800 to 196.825 and 196.845
to 196.870 for removal of material from the beds and banks and
filling of any waters of this state.   { - The Director of the
Department of State Lands shall administer and enforce the
provisions of this subsection. - }   { + The director shall make
a finding for the issuance of a license under this subsection
within two weeks of receiving the application from the county
clerk who transmitted the application pursuant to section 3 of
this 2011 Act. + }
  (3)(a) Upon a finding of emergency circumstances, the Director
of the Department of State Lands may issue a temporary permit for
the removal, filling or alteration of the beds or banks within a
scenic waterway. The temporary permit shall include conditions
developed after consultation with the State Department of Fish
and Wildlife and the State Parks and Recreation Department.
  (b) As used in this subsection, 'emergency circumstances '
exist if prompt action is necessary to prevent irreparable harm,
injury or damage to persons or property.
  (4) Any person adversely affected or aggrieved by the grant or
denial of a permit  { + or license + } under subsection (2) or
(3) of this section may appeal in accordance with the procedure
set forth in ORS 196.835.
  (5) Nothing in ORS 390.805 to 390.925 affects the authority of
the State Fish and Wildlife Commission to construct facilities or
make improvements to facilitate the passage or propagation of
fish or to exercise other responsibilities in managing fish and
wildlife resources. Nothing in ORS 390.805 to 390.925 affects the
authority of the Water Resources Commission to construct and
maintain stream gauge stations and other facilities related to
the commission's duties in administration of the water laws.
  (6) Upon a finding of necessity under subsection (1) of this
section, the Water Resources Commission may issue a water right
for human consumption not to exceed 0.005 cubic feet per second
per household, or livestock consumption uses not to exceed
one-tenth of one cubic foot per second per 1,000 head of
livestock, as designated in ORS 536.310 (12) within or above a
scenic waterway if the Water Resources Commission makes the
following findings:
  (a) That issuing the water right does not significantly impair
the free-flowing character of these waters in quantities
necessary for recreation, fish and wildlife.
  (b) That issuing the water right is consistent with provisions
pertaining to water appropriation and water rights under ORS
chapters 536 and 537 and rules adopted thereunder.
  (c) That construction, operation and maintenance of the
diversion system will be carried out in a manner consistent with
the purposes set forth in ORS 390.805 to 390.925.
  (d) If the water right is for human consumption, an additional
finding that:
  (A) The applicant cannot reasonably obtain water from any other
source;
  (B) Denial of the water right would result in loss of
reasonable expectations for use of the property; and
  (C) The system installed to divert water shall include
monitoring equipment to permit water use measurement and
reporting.
  (e) If the water right is for livestock consumption, an
additional finding that:
  (A) The right is necessary to prevent the livestock from
watering in or along the stream bed;
  (B) The applicant cannot reasonably obtain water from any other
source; and
  (C) The applicant has excluded livestock from the stream and
its adjacent riparian zone.
  (7) In making the findings required under subsection (6) of
this section, the Water Resources Commission shall consider the
existing or potential cumulative impacts of issuing the water
right.
  (8) The Water Resources Commission may not allow human
consumption and livestock uses authorized under subsection (6) of
this section in excess of a combined cumulative total of one
percent of the average daily flow or one cubic foot per second,
whichever is less, unless:
  (a) The Water Resources Commission, the State Parks and
Recreation Department, the State Department of Fish and Wildlife,
the Department of Environmental Quality and the Department of
State Lands unanimously agree to exceed that amount; and
  (b) Exceeding that amount will not significantly impair the
free-flowing character of these waters in quantities necessary
for recreation, fish and wildlife.
  (9)(a) The provisions of this section do not apply to a water
right application for the use of ground water as defined in ORS
537.515, except upon a finding by the Water Resources Director
based on a preponderance of evidence that the use of ground water
will measurably reduce the surface water flows necessary to
maintain the free-flowing character of a scenic waterway in
quantities necessary for recreation, fish and wildlife.
  (b) The Water Resources Department shall review every
application for the use of ground water to determine whether to
make the finding specified in paragraph (a) of this subsection.
The finding shall be based upon the application of generally
accepted hydrogeologic methods using relevant and available field
information concerning the proposed use.
  (c) In making the determination required by paragraph (a) of
this subsection, the Water Resources Department shall consider
the timing of projected impacts of the proposed use in relation
to other factors, including but not limited to: Changing climate,
recharge, incidental precipitation, out-of-stream appropriations
and return flows.
  (d) If the Water Resources Director makes the finding specified
in paragraph (a) of this subsection, the Water Resources Director
shall issue an order denying the application unless:
  (A) Mitigation is provided in accordance with subsection (10)
of this section; or
  (B) The applicant submits evidence to overcome the finding
under paragraph (a) of this subsection.
  (e) Except as provided under subsection (13) of this section,
if the Water Resources Director does not make the finding
specified in paragraph (a) of this subsection, the Water
Resources Director shall issue an order approving the application
if the application otherwise meets the requirements of ORS
537.505 to 537.795.
  (f) A protest of any order issued under this subsection may be
filed in the same manner as a protest on any application for a
right to appropriate ground water.
  (g) Each water right permit and certificate for appropriation
of ground water issued after July 19, 1995, for which a source of
appropriation is within or above a scenic waterway shall be
conditioned to allow the regulation of the use if analysis of
data available after the permit or certificate is issued
discloses that the appropriation will measurably reduce the
surface water flows necessary to maintain the free-flowing
character of a scenic waterway in quantities necessary for
recreation, fish and wildlife in effect as of the priority date
of the right or as those quantities may be subsequently reduced.
  (h) This subsection does not limit the use of ground water for
a use exempted under ORS 537.545.
  (10) The Water Resources Commission or Water Resources Director
shall consider mitigation measures and may include mitigation
measures as conditions in any water right permit or certificate
to ensure the maintenance of the free-flowing character of the
scenic waterway in quantities necessary for recreation, fish and
wildlife.
  (11) The Water Resources Commission and the Water Resources
Director shall carry out their responsibilities under ORS 536.220
to 536.590 with respect to the waters within scenic waterways in
conformity with the provisions of this section.
  (12) As used in this section, 'measurably reduce' means that
the use authorized under subsection (9) of this section will
individually or cumulatively reduce surface water flows within
the scenic waterway in excess of a combined cumulative total of
one percent of the average daily flow or one cubic foot per
second, whichever is less, unless:
  (a) The Water Resources Department, the State Parks and
Recreation Department, the State Department of Fish and Wildlife,
the Department of Environmental Quality and the Department of
State Lands unanimously agree to exceed that amount; and
  (b) Exceeding that amount will not significantly impair the
free-flowing character of these waters in quantities necessary
for recreation, fish and wildlife.
  (13) Before authorizing an appropriation that will reduce
streamflows within a scenic waterway in amounts up to but not
exceeding the amounts described in subsection (12) of this
section, the Water Resources Director shall find:
  (a) That the appropriation will not significantly impair the
free-flowing character of these waters in quantities necessary
for recreation, fish and wildlife.
  (b) That the appropriation is consistent with provisions
pertaining to water appropriations and water rights under ORS
chapters 536 and 537 and the rules adopted thereunder.
  (c) That construction, operation and maintenance of the
appropriation will be carried out in a manner consistent with the
purposes set forth in ORS 390.805 to 390.925.
  (14) Placer mining is not permitted on waters within scenic
waterways, other than recreational placer mining.
  (15) A person may not be required to obtain a permit  { + or
license + } for recreational prospecting or other nonmotorized
recreational activity resulting in the fill, removal or other
alteration of less than one cubic yard of material at any one
individual site and, cumulatively, not more than five cubic yards
of material from within the bed or wet perimeter of any single
scenic waterway in a single year. Recreational prospecting shall
not occur at any site where fish eggs are present.
  (16) This section does not exempt recreational placer mining on
a scenic waterway, other than recreational prospecting not
requiring a permit { +  or license + }, from compliance with the
provisions of ORS 196.800 to 196.825 and 196.845 to 196.870 or
rules adopted pursuant to ORS 196.800 to 196.825 and 196.845 to
196.870.
  (17) Recreational placer mining may not:
  (a) Dam or divert a waterway or obstruct fish passage;
  (b) Include nozzling, sluicing or digging outside the wet
perimeter of the stream, nor extend the wet perimeter;
  (c) Include movement of boulders, logs, stumps or other woody
material from the wet perimeter other than movement by hand and
nonmotorized equipment;
  (d) Involve the disturbance of rooted or embedded woody plants,
including trees and shrubs, regardless of their location;
  (e) Include excavation from the streambank;
  (f) Fail to level pits, piles, furrows or potholes outside the
main channel of the waterway upon leaving the site;
  (g) Include operation of a suction dredge without a suction
dredge waste discharge permit from the Department of
Environmental Quality including, but not limited to, a
prohibition against dredging during periods when fish eggs could
be in the dredging site gravel;
  (h) Be conducted on federal lands except as allowed by agencies
of the federal government;
  (i) Impede boating;
  (j) Include operation of a dredge between the hours of 6 p.m.
and 8 a.m. within 500 feet of a residence or within 500 feet of a
campground except within a federally designated recreational
mining site; or
  (k) Include operation of a dredge within the marked or posted
swimming area of a designated campground or day use area except
within a federally designated recreational mining site.
  (18) As used in this section:
  (a) 'Bed' means the land within the wet perimeter and any
adjacent nonvegetated dry gravel bar.
   { +  (b) 'License' means a recreational dredge mining license
issued under section 3 of this 2011 Act.
  (c) 'Permit' means a fill or removal permit issued under ORS
196.800 to 196.900. + }
    { - (b) - }   { + (d) + } 'Prospecting' means to search or
explore for samples of gold, silver or other precious minerals,
using nonmotorized methods, from among small quantities of
aggregate.
    { - (c) - }   { + (e) + } 'Recreational placer mining'
includes, but is not limited to, the use of nonmotorized
equipment and motorized surface dredges having an intake nozzle
with an inside diameter not exceeding four inches, a motor no
larger than 16 horsepower and a muffler meeting or exceeding
factory-installed noise reduction standards. 'Recreational placer
mining' does not include recreational prospecting that does not
require a permit { +  or license + }.
    { - (d) - }   { + (f) + } 'Wet perimeter' means the area of
the stream that is underwater, or is exposed as a nonvegetated
dry gravel bar island surrounded on all sides by actively moving
water at the time the activity occurs.
  SECTION 8.  { + Sections 2 and 3 of this 2011 Act and the
amendments to ORS 196.905 and 390.835 by sections 4 to 7 of this
2011 Act do not apply to a person who has a permit to remove
material from the beds or banks of any waters of this state or
fill any waters of this state before the effective date of this
2011 Act. + }
  SECTION 9.  { + This 2011 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2011 Act takes effect on its
passage. + }
                         ----------

Source: http://www.leg.state.or.us/11reg/measures/sb0700.dir/sb0765.intro.html
 


 

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