68th OREGON LEGISLATIVE ASSEMBLY--1995 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 299
House Bill 2721
Sponsored by Representatives MARKHAM, REPINE; Representatives
BAUM, BEYER, CORCORAN, FEDERICI, FISHER, HAYDEN, JONES, JOSI,
LUNDQUIST, MONTGOMERY, NORRIS, PARKS, STARR, TARNO, VANLEEUWEN,
WELSH, Senators BUNN, DWYER, JOHNSON, KINTIGH, TIMMS, YIH
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.
Modifies ban on placer mining in scenic waterway areas to allow
recreational gold panning and small dredges.
A BILL FOR AN ACT
Relating to placer mining; creating new provisions; and amending
ORS 390.835.
Be It Enacted by the People of the State of Oregon:
SECTION 1. 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 { - or placer mining
permitted - } 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 gold panning not requiring a permit + }shall
be prohibited, except as permitted by the Director of the
Division of State Lands upon a finding that such activity would
be consistent with the policies set forth under ORS 390.805 to
390.925 for scenic waterways, and approved by the State Land
Board and in a manner consistent with the policies set forth
under ORS 196.800 to 196.825 and 196.840 to 196.870 for removal
of material from the beds and banks and filling of any waters of
this state. The Director of the Division of State Lands shall
administer and enforce the provisions of this subsection.
(3)(a) Upon a finding of emergency circumstances, the Director
of the Division of State Lands may issue a temporary permit for
the removal, filling or alteration of the beds or banks within a
scenic waterway prior to approval by the State Land Board under
subsection (2) of this section. The temporary permit shall
include conditions developed after consultation with the State
Department of Fish and Wildlife and the State Parks and
Recreation Department. A temporary permit approved by the
Director of the Division of State Lands shall be reviewed by the
State Land Board at its next regularly scheduled meeting
following the emergency approval. Upon its review, the State Land
Board may approve, modify or revoke the permit.
(b) As used in this subsection, 'emergency circumstances '
exist if the activity is necessary to make repairs or to prevent
irreparable harm, injury or damage to persons or property.
(4) 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.
(5) 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 .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.
(6) In making the findings required under subsection (5) of
this section, the Water Resources Commission shall consider the
existing or potential cumulative impacts of issuing the water
right.
(7) The Water Resources Commission may not allow human
consumption and livestock uses authorized under subsection (5) 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 Division 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.
(8) The Water Resources Commission shall carry out its
responsibilities under ORS 536.220 to 536.590 with respect to the
waters within scenic waterways in conformity with the provisions
of this section.
{ + (9) No placer mining shall be permitted on waters within
scenic waterways other than recreational placer mining.
(10) No permit shall be required for gold panning resulting in
the fill, removal or other alteration of less than 50 cubic yards
or the equivalent weight in tons of material within the bed of
any single waterway of this state in a single year.
(11) No provision of this section shall be construed to exempt
recreational placer mining on a scenic waterway, other than gold
panning not requiring a permit, from compliance with the
provisions of ORS 196.800 to 196.825 and 196.840 to 196.870 or
rules adopted pursuant to ORS 196.800 to 196.825 and 196.840 to
196.870.
(12) Recreational placer mining, other than gold panning not
requiring a permit, shall not:
(a) Dam or divert a waterway;
(b) Include nozzling or sluicing outside the wet perimeter of
the stream;
(c) Include movement of boulders, logs, woody debris jams or
stumps other than movement by hand;
(d) Disturb rooted or embedded woody plants, including but not
limited to, trees and shrubs;
(e) Excavate the streambank;
(f) Fail to level pits, piles, furrows or potholes at the
prospecting location upon leaving the site;
(g) Include operation of a suction dredge without a permit from
the Department of Environmental Quality for suction dredge waste
discharge; or
(h) Be conducted on federal lands except as allowed by agencies
of the Federal Government.
(13) As used in this section, 'recreational placer mining '
includes, but is not limited to, gold panning and the use of a
motorized surface dredge having an intake four inches or less in
diameter. + }
SECTION 2. { + The amendments to ORS 390.835 by section 1 of
this Act shall not be construed to terminate or limit any right
to conduct placer mining on a claim, provided that the right to
conduct placer mining was not terminated or limited by ORS
390.835 prior to the effective date of this Act and the placer
mining claim is located on a waterway that was designated as a
scenic waterway prior to the effective date of this Act. + }
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