Chapter 373 Oregon Laws 1999

Session Law

AN ACT

SB 11

Relating to ocean shore permitting; creating new provisions; amending ORS 196.800, 390.605, 390.640, 390.650 and 390.725; repealing ORS 390.658; and appropriating money.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 196.800 is amended to read:

196.800. As used in ORS 196.600 to 196.905, unless the context requires otherwise:

(1) "Channel relocation" means a change in location of a channel in which a new channel is dug and the flow is diverted from the old channel into the new channel if more than 50 cubic yards of material is removed in constructing the new channel or if it would require more than 50 cubic yards of material to completely fill the old channel.

(2) "Director" means the Director of the Division of State Lands.

(3) "Division" means the Division of State Lands.

(4) "Estuary" means a body of water semienclosed by land and connected with the open ocean within which salt water is usually diluted by fresh water derived from the land. "Estuary" includes all estuarine waters, tidelands, tidal marshes and submerged lands extending upstream to the head of tidewater. However, the Columbia River Estuary extends to the western edge of Puget Island.

(5) "Fill" means the total of deposits by artificial means equal to or exceeding 50 cubic yards or more of material at one location in any waters of this state.

(6) "General authorization" means a rule adopted by the director authorizing, without a permit from the division, a category of activities involving removal or fill, or both, on a statewide or other geographic basis.

(7) "Governmental body" includes the Federal Government when operating in any capacity other than navigational servitude, the State of Oregon and every political subdivision therein.

(8) "Intermittent stream" means any stream which flows during a portion of every year and which provides spawning, rearing or food-producing areas for food and game fish.

(9) "Material" means rock, gravel, sand, silt and other inorganic substances removed from waters of this state and any materials, organic or inorganic, used to fill waters of this state.

(10) "Mitigation" means the reduction of adverse effects of a proposed project by considering, in the following order:

(a) Avoiding the impact altogether by not taking a certain action or parts of an action;

(b) Minimizing impacts by limiting the degree or magnitude of the action and its implementation;

(c) Rectifying the impact by repairing, rehabilitating or restoring the affected environment;

(d) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action by monitoring and taking appropriate corrective measures; and

(e) Compensating for the impact by replacing or providing comparable substitute wetland or water resources.

(11) "Public use" means a publicly owned project or a privately owned project that is available for use by the public.

(12) "Removal" means the taking of more than 50 cubic yards or the equivalent weight in tons of material in any waters of this state in any calendar year; or the movement by artificial means of an equivalent amount of material on or within the bed of such waters, including channel relocation.

(13) "Water resources" includes not only water itself but also aquatic life and habitats therein and all other natural resources in and under the waters of this state.

(14) "Waters of this state" means natural waterways including all tidal and nontidal bays, intermittent streams, constantly flowing streams, lakes, wetlands and other bodies of water in this state, navigable and nonnavigable, including that portion of the Pacific Ocean which is in the boundaries of this state. "Waters of this state" does not include the ocean shore, as defined in ORS 390.605, with the exception of those areas where removal or fill activities are regulated under a state-assumed permit program as provided in 33 U.S.C. 1344(g) of the Federal Water Pollution Control Act, as amended.

(15) "Wetland conservation plan" means a written plan providing for wetland management containing a detailed and comprehensive statement of policies, standards and criteria to guide public and private uses and protection of wetlands, waters and related adjacent uplands and which has specific implementing measures and which apply to designated geographic areas of the State of Oregon.

(16) "Wetlands" means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.

SECTION 2. ORS 390.605 is amended to read:

390.605. As used in ORS 390.610, 390.620 to 390.660, 390.690, and 390.705 to 390.770, unless the context requires otherwise:

(1) [An] "Improvement" includes filling a portion of the ocean shore, removal of material from the ocean shore or a structure, appurtenance or other addition, modification or alteration constructed, placed or made on or to the land.

(2) "Ocean shore" means the land lying between extreme low tide of the Pacific Ocean and the [line of] statutory vegetation line as [established and] described by ORS 390.770 or the line of established upland shore vegetation, whichever is farther inland. "Ocean shore" does not include an estuary as defined in ORS 196.800.

(3) "State recreation area" means a land or water area, or combination thereof, under the jurisdiction of the State Parks and Recreation Department used by the public for recreational purposes.

SECTION 3. ORS 390.640 is amended to read:

390.640. (1) In order to promote the public health, safety and welfare, to protect the state recreation areas recognized and declared by ORS 390.610 and 390.615, to protect the safety of the public using such areas, and to preserve values adjacent to and adjoining such areas, the natural beauty of the ocean shore and the public recreational benefit derived therefrom, it is necessary to control and regulate improvements on the ocean shore. Unless a permit therefor is granted as provided by ORS 390.650, no person shall make an improvement on any property that is within the [area described by ORS 390.770] ocean shore.

(2) This section does not apply to permits granted pursuant to ORS 390.715, or to rules [promulgated] adopted or permits granted under ORS 390.725.

(3) This section does not apply to continuous extensions of densely vegetated land areas [which are above the 16 foot contour and lying] that were, as of August 22, 1969, both seaward of the line established by ORS 390.770 [as of August 22, 1969] and above the 16-foot contour. The elevation mentioned in this subsection refers to the United States Coast and Geodetic Survey Sea-Level Datum of 1929 through the Pacific Northwest Supplementary Adjustment of 1947.

(4) This section does not apply to the removal, filling or alteration of material on the ocean shore where those activities are regulated under a state-assumed permit program as provided in 33 U.S.C. 1344(g) of the Federal Water Pollution Control Act, as amended.

SECTION 4. ORS 390.650 is amended to read:

390.650. (1) Any person who desires a permit to make an improvement on any property subject to ORS 390.640 shall apply in writing to the State Parks and Recreation Department on a form and in a manner prescribed by the department, stating the kind of and reason for the improvement.

(2) Upon receipt of a properly completed application, the State Parks and Recreation Department shall [cause] provide notice of the proposal by causing notice of the application to be posted at or near the location of the proposed improvement. The notice shall include the name of the applicant, a description of the proposed improvement and its location and a statement of the time within which interested persons may file a request with the department for a hearing on the application. The department shall give notice of any application, hearing or decision to any person who files a written request with the department for such notice.

(3) Within 30 days after the date of posting the notice required in subsection (2) of this section, the applicant or 10 or more other interested persons may file a written request with the State Parks and Recreation Department for a hearing on the application. If such a request is filed, the department shall set a time for a hearing to be held by the department. The department shall cause notice of the hearing to be posted in the manner provided in subsection (2) of this section. The notice shall include the time and place of the hearing. After the hearing on an application or, if a hearing is not requested, after the time for requesting a hearing has expired, the department shall grant the permit if approval would not be adverse to the public interest. ORS 183.310 to 183.550 does not apply to a hearing or decision under this section.

(4) In acting on an application, the State Parks and Recreation Department shall take into consideration the matters described by ORS 390.655. The department shall act on an application within 60 days after the date of receipt or, if a hearing is held, within 45 days after the date of the hearing.

(a) [If the permit is denied upon the grounds that the same would be adverse to the public interest] The decision of the department shall [make] include written findings setting forth the specific reasons for the approval or denial and, if the application is approved, any conditions the department considers necessary to maintain the standards established under ORS 390.655.

(b) A copy of the written findings shall be furnished to the applicant [within 30 days following] at the time of approval or denial of the application by the department as provided in this subsection.

(5) Subsections (2) and (3) of this section do not apply to an application for a permit for the repair, replacement or restoration, in the same location, of an authorized improvement or improvement existing on or before May 1, 1967, if the repair, replacement or restoration is commenced within three years after the damage to or destruction of the improvement being repaired, replaced or restored occurs.

(6) The State Parks and Recreation Department may, upon application therefor, either written or oral, grant an emergency permit for a new improvement, dike, revetment, or for the repair, replacement or restoration of an existing, or authorized improvement where property or property boundaries are in imminent peril of being destroyed or damaged by action of the Pacific Ocean or the waters of any bay or river of this state. Said permit may be granted by the department without regard to the provisions of subsections (1), (2), (3), (4) and (5) of this section. Any emergency permit granted hereunder shall be reduced to writing by the department within 10 days after granting the same with a copy thereof furnished to the applicant.

(7) Each application under subsection (1) of this section shall be accompanied by a fee to cover, in part, the expenses of the department in investigating, reviewing and issuing the improvement permits. The application fee for each permit shall be:

(a) $400 for any project for which the construction value is less than $2,500.

(b) $400 for any project for which the construction value is equal to or greater than $2,500, plus an additional amount equal to three percent of the construction value over $2,500.

(8) Fees received under this section shall be deposited into a subaccount of the State Parks and Recreation Department Fund. Such fees are continuously appropriated to the department for the purpose of carrying out the ocean shore program.

(9) As used in this section, "construction value" includes but is not limited to the costs of labor and equipment rental. For a project involving only the movement of sand or similar material on the ocean shore, "construction value" shall equal the costs of labor, fees and equipment rental.

SECTION 5. ORS 390.658 is repealed and section 6 of this 1999 Act is enacted in lieu thereof.

SECTION 6. (1) Any applicant whose application for a permit under ORS 390.650 has been denied or who objects to any condition imposed on the permit or any person aggrieved or adversely affected by the granting of a permit may, within 30 days after the denial of the permit or the imposition of the condition, request a hearing from the State Parks and Recreation Director.

(2) Upon receipt of a request for hearing from the applicant or if the director finds that the person other than the applicant making the request has a legally protected interest that is adversely affected by the grant of the permit, the director shall set the matter down for hearing within 30 days after receipt of the request. The hearing shall be conducted as a contested case in accordance with ORS 183.415 to 183.430, 183.440 to 183.460 and 183.470. The applicant shall be a party to any contested case hearing requested by a person other than the applicant.

(3) Within 45 days after the hearing the director shall enter an order containing findings of fact and conclusions of law. The order shall rescind, affirm or modify the director's original order. Appeals from the director's final order may be taken to the Court of Appeals in the manner provided by ORS 183.482.

(4) A permit granted by the director may be suspended by the director during the pendency of the proceedings before the director and any appeal. The director shall not suspend the permit unless the person aggrieved or adversely affected by grant of permit makes a showing before the director by clear and convincing evidence that commencement or continuation of the improvement would cause irremediable damage and would be inconsistent with ORS 390.610, 390.620 to 390.660, 390.690 and 390.705 to 390.770.

SECTION 7. ORS 390.725 is amended to read:

390.725. [(1) No sand, rock, mineral, marine growth or other natural product of the ocean shore, other than fish or wildlife, agates or souvenirs, shall be taken from the state recreation areas described by ORS 390.635, except in compliance with a rule of or permit from the State Parks and Recreation Department as provided by this section. Permits shall provide for the payment of just compensation by the permittee as provided in subsection (5) of this section.]

(1) Removal of natural products such as fish or wildlife, agates or small amounts of driftwood from a state recreation area as defined in ORS 390.605 for personal, noncommercial use is not subject to the provisions of ORS 390.650.

(2) The collection of natural products for the purpose of trade, sale or resale shall be subject to the permit provisions and standards of ORS 390.650 and 390.655. Permits shall provide for the payment of just compensation by the permittee as provided by rule adopted under subsection (4) of this section.

(3) No archaeological object associated with an archaeological site, as those terms are defined in ORS 358.905, shall be removed from the ocean shore except as provided in ORS 358.920 and 390.235.

[(2)] (4) Rules or permits shall be made or granted by the State Parks and Recreation Department only after consultation with the State Fish and Wildlife Commission, the State Department of Geology and Mineral Industries and the Division of State Lands. Rules and permits shall contain provisions necessary to protect the areas from any use, activity or practice inimicable to the conservation of natural resources or public recreation.

[(3) On request of the governing body of any coastal city or county, the State Parks and Recreation Department may grant a permit for the removal of sand or rock from the area at designated locations on the ocean shore to supply the reasonable needs for essential construction uses in such localities if it appears sand and rock for such construction are not otherwise obtainable at reasonable cost, and if such removal will not materially alter the physical characteristics of the area or adjacent areas, nor lead to such changes in subsequent seasons. Before issuing a permit the department shall likewise take into consideration the standards described by ORS 390.655. The department may grant a permit to take and remove sand, rock, mineral or marine growth from the area at designated locations. The department shall also issue permits to coastal cities or counties to remove or authorize removal of sand from the ocean shore, under the standards provided by ORS 390.655, if the city or county determines that the sand accumulation on the ocean shore constitutes a hazard or maintenance problem to the city or county.]

[(4)] (5) The terms, royalty and duration of a permit under this section are at the discretion of the department. A permit is revocable at any time in the discretion of the department without liability to the permittee.

[(5)] (6) Whenever the issuance of a permit under this section will affect lands owned privately, the State Parks and Recreation Department shall withhold the issuance of such permit until such time as the permittee shall have obtained an easement, license or other written authorization from the private owner, which easement, license or other written authority must meet the approval of the department, except as to the compensation to be paid to the private owner.

SECTION 8. Sections 9 to 17 of this 1999 Act are added to and made a part of ORS 390.620 to 390.660.

SECTION 9. (1) Any person who violates any provision of ORS 390.610, 390.620 to 390.660, 390.690 and 390.705 to 390.770 or any rule, order or permit adopted or issued under ORS 390.610, 390.620 to 390.660, 390.690 and 390.705 to 390.770 shall be subject to a civil penalty in an amount to be determined by the State Parks and Recreation Director of not more than $10,000 per day of violation.

(2) In addition to any other penalties provided under subsection (1) of this section, the State Parks and Recreation Department is vested with power to obtain injunctions and other appropriate relief against a person who violates any provisions of ORS 390.610, 390.620 to 390.660, 390.690 and 390.705 to 390.770 or any rule, order or permit adopted or issued under ORS 390.610, 390.620 to 390.660, 390.690 and 390.705 to 390.770.

SECTION 10. (1) Civil penalties under section 9 of this 1999 Act shall be imposed as provided in ORS 183.090.

(2) The provisions of this section are in addition to and not in lieu of any other penalty or sanction provided by law. An action taken by the State Parks and Recreation Director under this section may be joined by the director with any other action taken against the same person under section 17 of this 1999 Act.

(3) Any civil penalty recovered under this section shall be deposited into an account of the State Parks and Recreation Department for use by the department in administration of the ocean shore program.

SECTION 11. (1) The State Parks and Recreation Director shall adopt by rule the amount of civil penalty that may be imposed for a particular violation under section 9 of this 1999 Act.

(2) In imposing a penalty under the schedule adopted under subsection (1) of this section, the director shall consider the following factors:

(a) The past history of the person incurring a penalty in taking all feasible steps or procedures necessary or appropriate to correct any violation.

(b) Any prior violations of statutes, rules, orders and permits pertaining to waters of this state.

(c) The impact of the violation on public interests in navigation, fishery and recreation.

(d) Any other factors determined by the director to be relevant and consistent with the policy of ORS 390.610.

(3) The penalty imposed under this section may be remitted or mitigated upon such terms and conditions as the director determines to be proper and consistent with the policy of ORS 390.610. Upon the request of the person incurring the penalty, the director shall consider evidence of the economic and financial condition of the person in determining whether a penalty shall be remitted or mitigated.

SECTION 12. The improvement on any property within the ocean shore without a permit issued under ORS 390.650, or in a manner contrary to the conditions set out in the permit, is a public nuisance.

SECTION 13. (1) If the State Parks and Recreation Director determines that any improvement is being made on property within the ocean shore without a permit issued under ORS 390.650, or in a manner contrary to the conditions set out in the permit, the director may:

(a) Investigate, hold hearings, make orders and take action, as provided in ORS 390.620 to 390.660, as soon as possible.

(b) For the purpose of investigating conditions relating to such improvements, through the employees or the duly authorized representatives of the State Parks and Recreation Department, enter at reasonable times upon any private or public property.

(c) Conduct public hearings in accordance with ORS 183.310 to 183.550.

(d) Publish findings and recommendations as they are developed relative to public policies and procedures necessary for the correction of conditions or violations of ORS 390.620 to 390.660.

(e) Give notice of any proposed order relating to a violation by personal service or by mailing the notice by registered or certified mail to the person or governmental body affected. Any person aggrieved by a proposed order of the director may request a hearing within 20 days of the date of personal service or mailing of the notice. Hearings shall be conducted under the provisions of ORS 183.310 to 183.550 applicable to contested cases, and judicial review of final orders shall be conducted in the Court of Appeals according to ORS 183.482. If no hearing is requested or if the party fails to appear, a final order shall be issued upon a prima facie case on the record of the department.

(f) Take appropriate action for the enforcement of any rules or final orders. Any violation of ORS 390.620 to 390.660 or of any rule or final order of the director under ORS 390.620 to 390.660 may be enjoined in civil abatement proceedings brought in the name of the State of Oregon. In any such proceedings, the director may seek and the court may award a sum of money sufficient to compensate the public for any destruction or infringement of any public right of navigation, fishery or recreation resulting from such violation. Proceedings brought by the director shall set forth, if applicable, the dates of notice and hearing and the specific rule or order of the director, together with the facts of noncompliance, the facts giving rise to the public nuisance and a statement of the damages to any public right of navigation, fishery or recreation, if any, resulting from such violation.

(2) In addition to the administrative action the director may take under subsection (1) of this section, the director may enter an order requiring any person to cease and desist from any violation if the director determines that such violation presents an imminent and substantial risk of injury, loss or damage to the ocean shore.

(3) An order under subsection (2) of this section:

(a) May be entered without prior notice or hearing.

(b) Shall be served upon the person by personal service or by registered or certified mail.

(c) Shall state that a hearing will be held on the order if a written request for hearing is filed by the person subject to the order within 10 days after receipt of the order.

(d) Shall not be stayed during the pendency of a hearing conducted under subsection (4) of this section.

(4) If a person subject to an order under subsection (2) of this section files a timely demand for hearing, the director shall hold a contested case hearing according to the applicable provisions of ORS 183.310 to 183.550. If the person fails to request a hearing, the order shall be entered as a final order upon prima facie case made on the record of the department.

(5) Neither the director nor any duly authorized representative of the department shall be liable for any damages a person may sustain as a result of a cease and desist order issued under subsection (2) of this section.

(6) The state and local police shall cooperate in the enforcement of any order issued under subsection (2) of this section and shall require no further authority or warrant in executing or enforcing such order. If any person fails to comply with an order issued under subsection (2) of this section, the circuit court of the county in which the violation occurred or is threatened shall compel compliance with the director's order in the same manner as with an order of that court.

(7) As used in this section, "violation" means making an improvement on property within the ocean shore without a permit or in a manner contrary to the conditions set out in a permit issued under ORS 390.650.

SECTION 14. If the State Parks and Recreation Director finds that a person or governmental body holding a permit issued under ORS 390.650 is making an improvement on property within the ocean shore contrary to the conditions set out in the permit, the director may revoke, suspend or refuse to renew such permit. The director may revoke a permit only after giving notice and opportunity for a hearing as provided in ORS 183.415 to 183.430, 183.440 to 183.460 and 183.470.

SECTION 15. (1) In addition to any enforcement action taken under section 13 of this 1999 Act, civil proceedings to abate alleged public nuisances under section 12 of this 1999 Act may be instituted in the name of the State of Oregon upon relation of the State Parks and Recreation Director or by any person in the person's name.

(2) Before beginning any action under subsection (1) of this section, a person other than the director shall provide to the director 60 days' notice of the intended action. A person other than the director may not begin an action under subsection (1) of this section if the director has commenced and is diligently prosecuting civil, criminal or administrative proceedings in the same matter.

(3) The director may institute an action in the name of the State of Oregon for a temporary restraining order or preliminary injunction if a threatened or existing public nuisance under section 12 of this 1999 Act creates an emergency that requires immediate action to protect the public health, safety or welfare. The director shall not be required to furnish a bond in such proceeding.

(4) The State Parks and Recreation Commission, the State Parks and Recreation Director and the employees or duly authorized representatives of the State Parks and Recreation Department shall not be liable for any damages a defendant may sustain as a result of an injunction, restraining order or abatement order issued under this section.

(5) A case filed under this section shall be given preference on the docket over all other civil cases except those given an equal preference by statute.

(6) In any action brought under this section, the plaintiff may seek and the court may award a sum of money sufficient to compensate the public for any destruction or infringement of any public right of navigation, fishery or recreation resulting from an existing public nuisance under section 12 of this 1999 Act. Any money received by the plaintiff under this subsection shall be deposited in an account of the State Parks and Recreation Department for use by the department in administering the ocean shore program.

SECTION 16. (1) If any person or governmental body, through negligence, violates ORS 390.640, the State Parks and Recreation Director, in a proceeding brought pursuant to section 15 of this 1999 Act, may seek and the court may award double a sum of money sufficient to compensate the public for any destruction or infringement of any public right of navigation, fishery or recreation resulting from such violation.

(2) If any person or governmental body intentionally violates ORS 390.640, the director, in a proceeding brought pursuant to section 15 of this 1999 Act, may seek and the court may award treble a sum of money sufficient to compensate the public for any destruction or infringement of any public right of navigation, fishery or recreation resulting from such violation.

(3) An award made pursuant to this section shall be in addition to and not in lieu of any criminal penalties imposed for a violation of ORS 390.640.

(4) In any action brought under section 15 of this 1999 Act, the court shall award to the prevailing party the costs of suit and reasonable attorney fees at trial and on appeal. Subject to the provisions of ORS 20.140, any costs and attorney fees so awarded to the director shall be deposited in an account of the State Parks and Recreation Department to offset the director's expenses of bringing such action.

SECTION 17. Violation of ORS 390.640 is a misdemeanor.

Approved by the Governor June 28, 1999

Filed in the office of Secretary of State June 29, 1999

Effective date October 23, 1999

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