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