69th OREGON LEGISLATIVE ASSEMBLY--1997 Regular Session
Enrolled
House Bill 2409
Sponsored by Representatives MARKHAM, WELSH
CHAPTER ................
AN ACT
Relating to recreational placer mining within scenic waterways;
creating new provisions; amending ORS 390.835; and declaring an
emergency.
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 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 - } { + recreational
prospecting + } 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
Enrolled House Bill 2409 (HB 2409-A) Page 1
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
Enrolled House Bill 2409 (HB 2409-A) Page 2
(b) Exceeding that amount will not significantly impair the
free-flowing character of these waters in quantities necessary
for recreation, fish and wildlife.
(8)(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 (9) 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 (12) 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.
(9) 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.
(10) The Water Resources Commission and the Water Resources
Director shall carry out their responsibilities under ORS 536.220
Enrolled House Bill 2409 (HB 2409-A) Page 3
to 536.590 with respect to the waters within scenic waterways in
conformity with the provisions of this section.
(11) As used in this section, 'measurably reduce' means that
the use authorized under subsection (8) 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 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.
(12) Before authorizing an appropriation that will reduce
streamflows within a scenic waterway in amounts up to but not
exceeding the amounts described in subsection (11) 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.
(13) No placer mining shall be permitted on waters within
scenic waterways other than recreational placer mining.
{ - (14) No permit shall be required for gold panning
resulting in the fill, removal or other alteration of less than
five cubic yards or the equivalent weight in tons of material
within the bed of any single waterway of this state in a single
year. - }
{ + (14) No person shall be required to obtain a permit 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. + }
(15) No provision of this section shall be construed to exempt
recreational placer mining on a scenic waterway, other than
{ - gold panning - } { + recreational prospecting + } 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.
(16) Recreational placer mining, other than { - gold
panning - } { + recreational prospecting + } not requiring a
permit, shall not:
(a) Dam or divert a waterway or obstruct fish passage;
{ - (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; - }
Enrolled House Bill 2409 (HB 2409-A) Page 4
{ + (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 { - at the
prospecting location - } { + 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 designated campground
or - } 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 + }.
(17) As used in this section:
{ - (a) 'Gold panning' means the washing of earth or crushed
rock with a nonmotorized pan, by agitation with water, for the
purpose of obtaining gold or other precious metals. - }
{ - (b) '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, a motor
no larger than 10 horsepower and a muffler meeting or exceeding
factory-installed noise reduction standards. - }
{ + (a) 'Bed' means the land within the wet perimeter and any
adjacent nonvegetated dry gravel bar.
(b) '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) '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.
(d) '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. + }
(18) Notwithstanding any other provision of this section, no
permit or temporary permit for dredging issued by the Division of
State Lands for the purpose of recreational placer mining within
a scenic waterway shall be in effect after December 31,
{ - 1997 - } { + 1999, if the review described in section 3 of
this 1997 Act has been completed and reported to the Seventieth
Legislative Assembly or, if the review has not been completed and
Enrolled House Bill 2409 (HB 2409-A) Page 5
reported to the Seventieth Legislative Assembly, after December
31, 2001 + }.
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. + }
SECTION 3. { + In order to make recommendations to better
achieve the objectives and enhance the effectiveness of the
scenic waterways program, the State Parks and Recreation
Department shall complete a review of the program as administered
under ORS 390.805 to 390.925. In conjunction with the review by
the State Parks and Recreation Department, the Division of State
Lands shall conduct a study of recreational prospecting and
recreational placer mining within scenic waterways to determine
the effects of such activities on recreation, fish and wildlife
uses. At the request of the State Parks and Recreation
Department, the Division of State Lands, the Water Resources
Department, the State Department of Fish and Wildlife, the State
Marine Board and the Department of Environmental Quality shall
assist in the review. + }
SECTION 4. { + This Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this Act takes effect on its
passage. + }
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Passed by House April 10, 1997
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate May 13, 1997
...........................................................
President of Senate
Enrolled House Bill 2409 (HB 2409-A) Page 6
Received by Governor:
......M.,............., 1997
Approved:
......M.,............., 1997
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 1997
...........................................................
Secretary of State
Enrolled House Bill 2409 (HB 2409-A) Page 7