(a) Whether the maintenance activities described in the notice will meet the requirements of ORS 196.913; and
(b) Whether conditions in addition to those required under ORS 196.913 are necessary to address the presence of endangered or threatened species, to protect endangered or threatened species’ habitat quality or quantity, or to otherwise protect the existing functions of the channel.
(2)(a) Except as provided under paragraph (b) of this subsection, the State Department of Agriculture shall include any conditions recommended by the State Department of Fish and Wildlife in the response to the notice required under subsection (3) of this section.
(b) If the State Department of Agriculture disagrees with the recommendations of the State Department of Fish and Wildlife, the State Department of Agriculture shall provide a copy of the notice and of the recommendations to the Department of State Lands for the Department of State Lands to make a final determination regarding:
(A) Whether the maintenance activities described in the notice may occur without a removal or fill permit; and
(B) What conditions in addition to those required under ORS 196.913, if any, are necessary for the maintenance activities to occur without a removal or fill permit.
(c) The Department of State Lands shall provide any final determination required pursuant to paragraph (b) of this subsection to the State Department of Agriculture within five days after receiving the copies of the notice and recommendations.
(3) The State Department of Agriculture shall provide a response to a notice filed pursuant to ORS 196.911 no later than 45 days after the date that the notice is received. The response must include any conditions in addition to those required under ORS 196.913 that the departments have determined are necessary, pursuant to the process described in subsection (2) of this section, for maintenance activities to occur in the traditionally maintained channel without a removal or fill permit. If the State Department of Agriculture does not provide a response to a notice within the time period described in this subsection, maintenance activities may proceed as described in the notice and pursuant to ORS 196.913.
(4) Upon a request from the person submitting a notice under ORS 196.911, the State Department of Agriculture and the State Department of Fish and Wildlife may provide for expedited review under subsections (1) to (3) of this section, if the expedited review is necessary to allow for maintenance activities to occur within a specific time period.
(5) Prior to initiation of maintenance activities, a person who has a notice of maintenance activities on file with the State Department of Agriculture may request from the State Department of Agriculture a variance from any condition required under ORS 196.913 (2) or this section. The State Department of Agriculture shall consult with the State Department of Fish and Wildlife before granting a variance under this subsection. A person that has applied for a variance may not commence maintenance activities until after the State Department of Agriculture has granted the variance and informed the person of any modifications to conditions or additional conditions that must be met for the maintenance to occur.
(6)(a) Subject to paragraph (b) of this subsection, the State Department of Agriculture or the State Department of Fish and Wildlife may enter onto and inspect lands for which notices have been filed under ORS 196.911 in order to develop the recommendations and response required by subsections (1) to (3) of this section or to ascertain compliance with ORS 196.906 to 196.919.
(b) To enter onto and inspect lands under this subsection:
(A) The Department of Agriculture shall first make a reasonable attempt to notify the landowner;
(B) The departments may only enter onto and inspect the lands at a reasonable time; and
(C) The State Department of Fish and Wildlife may not, without the express agreement of the person, district, company or corporation that filed the notice, enter onto and inspect the lands unless accompanied by the State Department of Agriculture.
(7) The State Department of Agriculture shall maintain a record of a notice filed pursuant to ORS 196.911 and any related correspondence for 10 years after the date that the notice is received.
(8)(a) The Department of State Lands may, after consultation with the State Department of Agriculture and the State Department of Fish and Wildlife, adopt rules as necessary to implement ORS 196.906 to 196.919. Rules adopted pursuant to this subsection may include, but need not be limited to, rules:
(A) Modifying the volume limits for removal or fill set forth in ORS 196.913 (1) or applying different volume limits within certain geographies for certain types or categories of traditionally maintained channels; or
(B) Modifying the conditions that apply for maintenance of a traditionally maintained channel set forth in ORS 196.913 (2).
(b) Any rules adopted under paragraph (a)(A) or (B) of this subsection must be based on the best available scientific information and on findings that the rules will:
(A) Allow for maintenance of traditionally maintained channels to be conducted in a manner that protects, maintains or improves the existing ecological and habitat function of traditionally maintained channels; and
(B) Result in appropriate changes to the conditions required for conducting maintenance activities, under an adaptive management approach, for carrying out the state policy stated in ORS 196.906.
(9) Nothing in ORS 196.906 to 196.919 limits or otherwise changes the exemptions under ORS 196.921.
(10) The costs of activities taken by the State Department of Fish and Wildlife to carry out the duties of the department under ORS 196.906 to 196.919 may not be charged to another state agency as recompensable assistance under ORS 496.167 and 496.168. [2019 c.699 §6]
Note: See note under 196.906.
Note: Sections 1 to 3, chapter 26, Oregon Laws 2021, provide:
Sec. 1. If the Department of State Lands or the State Department of Agriculture adopts rules to implement ORS 196.906 to 196.919, the rules may provide for implementation on a region-by-region basis but must provide for implementation throughout this state within a five-year period. [2021 c.26 §1]
Sec. 2. Section 1 of this 2021 Act does not modify the duties, functions or powers, under ORS 196.906 to 196.919, of the Department of State Lands, the State Department of Agriculture or the State Department of Fish and Wildlife. [2021 c.26 §2]
Sec. 3. Sections 1 and 2 of this 2021 Act are repealed on January 2, 2031. [2021 c.26 §3]
Structure 2021 Oregon Revised Statutes
Volume : 05 - State Government, Government Procedures, Land Use
Chapter 196 - State Waters and Ocean Resources; Wetlands; Removal and Fill
Section 196.105 - Definitions for ORS 196.105 to 196.125.
Section 196.110 - Land use regulation in Columbia River Gorge National Scenic Area.
Section 196.115 - Appeal from decision of Columbia River Gorge Commission or county.
Section 196.125 - Buffer by regulation around Columbia River Gorge National Scenic Area prohibited.
Section 196.150 - Compact provisions.
Section 196.160 - Membership on Columbia River Gorge Commission.
Section 196.165 - Status of commission employees for purposes of certain benefits.
Section 196.175 - Pacific Ocean Resources Compact ratified.
Section 196.180 - Compact provisions.
Section 196.185 - Representation on compact.
Section 196.200 - Definitions for ORS 196.200 to 196.240 and 196.993.
Section 196.210 - Membership of authority.
Section 196.215 - Executive director; status of director and employees.
Section 196.220 - Powers and duties of authority.
Section 196.225 - Creation of tax-exempt entity by authority.
Section 196.230 - Revenue bonds issued by authority.
Section 196.235 - Financing agreements.
Section 196.240 - Audits; report to Legislative Assembly.
Section 196.405 - Definitions for ORS 196.405 to 196.515.
Section 196.408 - Duties of state agencies.
Section 196.410 - Legislative findings for offshore oil and gas leasing.
Section 196.415 - Legislative findings for ocean resources management.
Section 196.425 - Oregon Ocean Resources Management Program.
Section 196.435 - Primary agency for certain federal purposes; restrictions.
Section 196.438 - Ocean Policy Advisory Council; members; term of office; quorum.
Section 196.443 - Duties of council.
Section 196.448 - Member compensation; meetings.
Section 196.453 - Project review panels; guidelines.
Section 196.465 - Compatibility of acknowledged comprehensive plans.
Section 196.471 - Territorial Sea Plan review requirements.
Section 196.485 - State agency coordination requirements; incorporation of plans.
Section 196.540 - Marine reserves; rules.
Section 196.545 - Work plan; use of data and recommendations.
Section 196.555 - Reporting; rules.
Section 196.565 - Oregon Ocean Science Trust; members; terms; compensation and expenses; rules.
Section 196.566 - Trust duties.
Section 196.567 - Oregon Ocean Science Fund; sources; uses.
Section 196.568 - Reimbursement from fund.
Section 196.573 - Council duties; biennial report.
Section 196.580 - Liaison program duties.
Section 196.583 - Requirement to share geological data regarding territorial sea floor.
Section 196.600 - Definitions for ORS 196.600 to 196.655.
Section 196.610 - Powers of Director of Department of State Lands; fees.
Section 196.615 - Program for mitigation banks; program standards and criteria; rules.
Section 196.623 - Watershed enhancement project as mitigation bank; sale of mitigation credit.
Section 196.625 - Fill and removal activities in mitigation banks; reports.
Section 196.635 - Director to consult and cooperate with other agencies and interested parties.
Section 196.640 - Oregon Removal-Fill Mitigation Fund; rules.
Section 196.645 - Sources of fund.
Section 196.650 - Use of fund.
Section 196.655 - Report on Oregon Removal-Fill Mitigation Fund; contents.
Section 196.668 - Legislative findings.
Section 196.674 - Statewide Wetlands Inventory; rules.
Section 196.678 - Wetland conservation plans; contents; procedure for adopting.
Section 196.682 - Permits required for removal or fill; conditions on issuance of permit.
Section 196.686 - Acknowledged estuary management plans; review and approval; hearings; final order.
Section 196.687 - Regulation of alteration or fill of artificially created wetlands.
Section 196.688 - Public information program.
Section 196.800 - Definitions for ORS 196.600 to 196.921.
Section 196.810 - Permit for removal of material from or fill of waters; rules.
Section 196.812 - Large woody debris; rules.
Section 196.815 - Application for permit; rules; fees; disposition of fees.
Section 196.817 - General permits; rules.
Section 196.818 - Wetland delineation reports; review by Department of State Lands; fees; rules.
Section 196.860 - Enforcement powers of director.
Section 196.870 - Abatement proceedings; restraining order; injunction; public compensation.
Section 196.885 - Annual report of fill and removal activities; contents of report.
Section 196.895 - Imposition of civil penalties.
Section 196.906 - Legislative findings and declarations.
Section 196.909 - Definitions.
Section 196.911 - Maintenance without permit; applicability; notice.
Section 196.913 - Prohibitions; conditions.
Section 196.917 - Notice of violation; reasonable efforts to induce voluntary compliance.
Section 196.919 - Memoranda of understanding.
Section 196.921 - Applicability; rules.
Section 196.990 - Penalties for unpermitted removal from or filling of waters.
Section 196.993 - Penalties for unauthorized use of Willamette Falls Locks.