justicedao/ipfs_state_laws huggingface dataset:
635-400-0037 Public Involvement Any individual, organization or public agency may request the Department apply for an instream water right on a waterway. (1) The Department Instream Water Right Coordinator shall review the request with the appropriate Department District and Region to determine the Department priority of the waterway requested. (2) If the request is determined to be for a high priority waterway, as defined by OAR 635-400-0002, the Department Instream Water Right Coordinator may apply for the instream water right, after determining the instream flow requirement in accordance with OAR 635-400-0015 Statutory/Other Authority: ORS 496 & 537 Statutes/Other Implemented: ORS 496 & 537 History: FWC 110-1989, f. 10-24-89, cert. ef. 10-28-89
635-405-0000 Purpose The purpose of these rules is to establish the procedures to be used by the Department in implementing the provisions of its State Agency Coordination Program, as required by ORS 197.180 and OAR 660, divisions 030 and 031. The State Agency Coordination program will assure that Department programs and actions determined to affect land use shall comply with the statewide planning goals and are compatible with acknowledged city and county comprehensive plans and land use regulations. It is not the intent of these rules to authorize local governments to prevent the Department from carrying out its statutory responsibility to manage wildlife and develop habitat protection standards. Statutory/Other Authority: ORS 197 & 496 Statutes/Other Implemented: ORS 197 & 496 History: FWC 66-1990, f. & cert. ef. 6-27-90
635-405-0010 Applicability (1) The provisions of OAR 635-405-0000 through 635-405-0045 shall apply to actions taken by the Department when considering amendments to existing programs described in section(3) of this rule. (2) The provisions of OAR 635-405-0000 through 635-405-0045 shall apply to the Department programs and actions described below, and to any other programs or actions subsequently determined to have a significant effect on land use pursuant to ORS 197.180 and OAR 660-030-0075. (3) The provisions of OAR 635-405-0000 through 635-405-0045 shall apply to the following Department programs and actions: (a) Issuing permits for: (A) Private salmon hatcheries; (B) In-water explosives or harmful substances. (b) Development of new, or improvement or expansion of existing Department facilities; (c) Feeding wildlife during the winter on private or non-federal public lands; (d) Applicable Department programs and actions to comply with Statewide Planning Goal 19 — Ocean Resources. Specifically: (A) Goal 19, Implementation Requirement 1; (B) Goal 19, Implementation Requirement 2.a.i; (C) Goal 19, Implementation Requirement 2.a.ii; (D) Goal 19, Implementation Requirement 2.b. Statutory/Other Authority: ORS 197 & 496 Statutes/Other Implemented: ORS 197 & 496 History: FWC 66-1990, f. & cert. ef. 6-27-90
635-405-0015 Compliance with the Statewide Planning Goals and Compatibility with Acknowledged Comprehensive Plans and Land Use Regulations Prior to undertaking any action or program listed in OAR 635-405-0010, the Department shall find that the program or action complies with the statewide planning goals and is compatible with applicable acknowledged comprehensive plans and land use regulations. The Department shall make its goal compliance and plan compatibility findings in accordance with OAR 635-405-0000 through 635-405-0045 and other applicable rules, and the Department’s certified state agency coordination program, which is hereby adopted by reference. Statutory/Other Authority: ORS 197 & 496 Statutes/Other Implemented: ORS 197 & 496 History: FWC 66-1990, f. & cert. ef. 6-27-90
635-405-0020 Compliance with the Statewide Planning Goals (1) The Department shall attempt to achieve goal compliance whenever possible by taking actions that are compatible with the acknowledged comprehensive plans of the applicable local governing body. (2) An action within a “land use program” of the Department is considered to be in compliance when such action is compatible with the acknowledged comprehensive plan and land use regulations of the applicable local governing body. (3) The Department will achieve compliance by acting compatibly with applicable acknowledged comprehensive plans; however, should a situation arise which requires direct goal findings pursuant to OAR 660-030-0065(3), the Department shall adhere to the following procedure: (a) Confirm that a situation exists pursuant to OAR 660-030-0065(3) requiring the Department to adopt findings of compliance with one or more of the statewide planning goals; (b) Identify the specific statewide planning goal(s) or goal requirements the Department must address; (c) Consult directly with the affected jurisdiction(s); (d) Request interpretive guidance from the DLCD and the Attorney General’s office; (e) Rely on any relevant Goal interpretations for state agencies adopted by the LCDC under OAR 660; (f) Adopt any necessary findings to assure compliance with the statewide planning goals. Statutory/Other Authority: ORS 197 & 496 Statutes/Other Implemented: ORS 197 & 496 History: FWC 66-1990, f. & cert. ef. 6-27-90
635-405-0025 Compatibility with Acknowledged Comprehensive Plans and Land Use Regulations The following procedure is intended to assure that a Department program or action determined to affect land use is compatible with the acknowledged comprehensive plans and land use regulations of the applicable local governing body: (1) Except where it is necessary for the Department to adopt findings for compliance with the statewide planning goals, the Department shall achieve goal compliance by acting compatibly with acknowledged comprehensive plans and land use regulations. To make the necessary determinations of compatibility for a Department project or action affecting land use, the Department shall rely on the following two procedures: (a) A copy of the local land use permit or equivalent documentation from the applicable local governing body or its designee that the proposed project or action has received land use approval; or (b) A letter or some other form of verification from the applicable local governing body or its designee stating that the proposed project or action is permitted under the jurisdiction’s comprehensive plan but does not require specific land use approval. (2) Upon receipt of an application for a private salmon hatchery permit, the Department will apply procedures pursuant to OAR 635-040-0009(4) and (5). (3) An applicant seeking approval from the Department to place explosives or harmful substances in waters of this state pursuant to ORS 509.140 shall provide information to this Department assuring the project’s compliance with the statewide planning goals and compatibility with the applicable acknowledged comprehensive plan(s) and land use regulations. Such information shall be submitted in a manner established by the Department and shall include a written declaration by the applicant acknowledging that: (a) Department approval of the project is not a finding of compliance with the statewide planning goals and compatibility with the applicable comprehensive plan; and (b) The applicant has or shall obtain land use approval or determination of compatibility from the applicable local governing body. (4) When siting or conducting expansion of a Department facility, the Department will apply procedures pursuant to OAR 635-405-0025(1). (5) When siting winter wildlife-feeding activities on private or non-federal public lands, the Department will apply procedures pursuant to OAR 635-405-0025(1). Statutory/Other Authority: ORS 197 & 496 Statutes/Other Implemented: ORS 197 & 496 History: FWC 66-1990, f. & cert. ef. 6-27-90
635-405-0030 Dispute Resolution (1) The Department shall attempt to resolve all disputes regarding land use issues by direct contact with the applicable local governing body(ies). Whenever possible, Department efforts to avoid and resolve potential land use conflicts concerning a specific use or action shall be conducted prior to and through local government land proceedings. These efforts may include Department participation in pre-application meetings and conflict mediation activities, and provision of technical information and assistance to project applicants as well as the applicable local governing body(ies). (2) In the event the Department and an applicable local governing body do not agree that a Department program or action, or local governing body action is compatible with the applicable acknowledged comprehensive plan(s) and land use regulations, the Department will attempt to resolve the dispute through the following procedures: (a) Department staff, where appropriate, may request meetings with planning staff or other representatives of the local government to discuss: (A) The ways in which the proposed Department program or action can be made compatible with the jurisdiction’s comprehensive plan and land use regulations, including possible modfication of the proposed program or action, while achieving the Department’s desired results; (B) Existing or possible Department alternative actions, including withdrawal of the proposal. (b) When determined to be necessary by the Department, local denials of Department requests for land use approvals or compatibility determinations may be pursued through appropriate appeals processes. (c) Where appropriate, the statutory plan amendment and periodic review processes shall be used to obtain local land use approvals for a program or action proposed by the Department which affects land use. (d) If the dispute is not resolved through subsections (2)(a)–(c) of this rule, the Department may request informal mediation or a compatibility determination from the LCDC in accordance with OAR 660-030-0070. Statutory/Other Authority: ORS 197 & 496 Statutes/Other Implemented: ORS 197 & 496 History: FWC 66-1990, f. & cert. ef. 6-27-90
635-405-0035 Compliance and Compatibility of New or Amended Land Use Programs (1) LCDC certification of the Department’s SAC Program signifies that the Department has fulfilled its statutory state agency coordination responsibilities. The Department shall implement the following procedures to assure that new Department programs and any amendments to existing Department programs identified in OAR 635-405-0010 shall conform to the Department’s certified SAC Program and the requirements in ORS 197.180 and OAR 660, division 030. (2) The Department shall not amend its certified state agency coordination program, adopt new programs, or amend existing programs identified in OAR 635-405-0010 without notifying the DLCD in accordance with 660-030-0075. (3) Such notice to adopt or amend a program or regulation as described in section (2) of this rule shall be provided to the DLCD in writing not less than 45 days before Department adoption is scheduled to occur. (4) The notice provided to DLCD shall demonstrate that the proposed new adoption or amendment: (a) Does not affect land use; or (b) Affects land use and goal compliance and comprehensive plan compatibility shall be assured through adherence to existing procedures in the Department’s certified SAC Program; or (c) Affects land use, but is not covered by regulations and procedures in the Department’s certified SAC program. In this case, the notice shall include an explanation of how the Department shall assure goal compliance and comprehensive plan compatibility in accordance with the applicable provisions of OAR 660-030-0075. Statutory/Other Authority: ORS 197 & 496 Statutes/Other Implemented: ORS 197 & 496 History: FWC 66-1990, f. & cert. ef. 6-27-90
635-405-0040 Coordination with Affected State and Federal Agencies and Special Districts The Department Habitat Conservation Division Land Use Coordinator or other appropriate Department employees shall coordinate with affected state and federal agencies and special districts to discuss wildlife habitat inventory and habitat protection and management standards. The information and assistance provided may include, but is not limited to: (l) Delineation (i.e., boundaries and locations) of significant wildlife habitat, such as: (a) Big game ranges; (b) Bird habitat sites; (c) Threatened and endangered habitat as defined in OAR 635-100-0100 to 635-100-0130; (d) Riparian habitat/land; (e) Wetlands; (f) Aquatic habitat; (g) Sensitive species habitat; (h) Other significant wildlife habitats not listed above. (2) Estimated wildlife population levels whenever data is available. (3) Identification of conflicting uses and an analysis of the consequences of such conflicting uses on identified fish and wildlife habitat as required by city and county comprehensive plans and land use regulations and to comply with the statewide planning goals. (4) Wildlife habitat protection and management standards including but not limited to: (a) Dwelling density criteria; (b) Setback buffers from wildlife habitat resource sites; (c) Types of and timing restrictions on activities conflicting with wildlife uses; (d) Instream flows or lake levels; (e) Structures compatible with wildlife uses; (5) Educational and informational materials to promote public awareness and involvement in protection of wildlife habitat; and (6) Estimated monetary values of wildlife whenever this information is available. Statutory/Other Authority: ORS 197 & 496 Statutes/Other Implemented: ORS 197 & 496 History: FWC 66-1990, f. & cert. ef. 6-27-90
635-405-0045 Cooperation and Technical Assistance to Local Governments Subject to statutory limitations, the Department may provide technical assistance and information to local governments through its County Coordinators as availability and resources permit. This effort may include Department participation in pre-application meetings, and provision of technical information and assistance to project applicants as well as the affected local governments. Technical assistance and information provided by the Department shall be for the purpose of implementing Department programs and activities affecting land use and wildlife habitat protection programs under its jurisdiction during Periodic Review, plan updates, plan amendments or implementation actions of acknowledged comprehensive plans pursuant to OAR 635-405-0040 and the Department’s State Agency Coordination Program. This Section is not intended to preclude or prevent local governments from seeking fish and wildlife-related technical assistance from other state and federal agencies or the private sector. Statutory/Other Authority: ORS 197 & 496 Statutes/Other Implemented: ORS 197 & 496 History: FWC 66-1990, f. & cert. ef. 6-27-90
635-410-0000 Authority of the Department of Fish and Wildlife ORS 468B.060 provides the Oregon Department of Fish and Wildlife with authority to seek damages in a court of competent jurisdiction for the value of fish and wildlife injured or killed as the result of pollution or violation of the condition of any permit, and for all costs of restoring fish and wildlife production in affected areas. In addition, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) provides for recovery of damages to natural resources by the federal government and/or state governments. OAR 635-410-0000 through 635-410-0035 describe how the Department shall investigate, document and assess the value of natural resource losses pursuant to its authority under state and federal law. Nothing in these rules, however, shall preclude assessment of losses according to formulas set forth in CERCLA regulations. Statutory/Other Authority: ORS 468B.060, 496.138, 496.146, 496.750, 506.119 & 506.720 Statutes/Other Implemented: ORS 468B.060, 496.138, 496.146, 496.750, 506.119 & 506.720 History: DFW 10-1998, f. & cert. ef. 2-5-98 FWC 126-1991, f. 10-23-91, cert. ef. 11-1-91
635-410-0005 Policy The Department shall: (1) Promptly investigate natural resource losses to determine the cause and extent of damage to fish and wildlife and their habitat. (2) Seek compensation from any persons responsible for the injury or destruction of fish, wildlife and habitat, and the costs of restoration of affected fish and wildlife production, including habitat restoration. (3) Work cooperatively with other state and federal agencies to: (a) Eliminate sources of pollution or other environmental damage; (b) Prevent natural resource losses through educational efforts and through enforcement of antipollution and other environmental laws; and (c) Ensure that violations of antipollution and other environmental laws are pursued to the fullest extent of the law. Statutory/Other Authority: ORS 468B.060, 496.138, 496.146, 496.750, 506.119 & 506.720 Statutes/Other Implemented: ORS 468B.060, 496.138, 496.146, 496.750, 506.119 & 506.720 History: DFW 10-1998, f. & cert. ef. 2-5-98 FWC 126-1991, f. 10-23-91, cert. ef. 11-1-91
635-410-0010 Definitions For the purposes of OAR 635-410-0000 through 635-410-0035: (1) “Affected area” means the area or areas in which natural resources have been directly or indirectly affected. (2) “Damages” means the amount of money sought by the Department in a court of competent jurisdiction for the value of fish and wildlife injured or destroyed, and for the cost of restoring fish and wildlife production, including habitat restoration. (3) “Department” means the Oregon Department of Fish and Wildlife. (4) “Fish and wildlife” means all fish, shellfish, intertidal animals, wild birds, amphibians, reptiles and wild mammals. (5) “Fish kill” means injury or destruction of fish or their productivity, regardless of cause. (6) “Natural resources” means land, fish, wildlife, biota, air or water. (7) “Natural resource losses” means any injury or destruction of fish, wildlife or their habitat, when caused by pollution or violation of the condition of any permit. (8) “Net economic value” means the sum of all net values for products and services associated with recreational and commercial uses of the affected natural resources, such as consumer surpluses and producer surpluses, plus the sum of all nonuse (or preservation) values, such as option and existence values. (9) “Pollution” means any such alteration of the physical, chemical or biological properties of any waters of the state, including change in temperature, taste, color, turbidity, silt or odor of the waters, or such discharge of any liquid, gaseous, solid, radioactive or other substance into any waters of the state which will or tends to, either by itself or in connection with any other substance, create a public nuisance, or which will or tends to render such waters harmful, detrimental or injurious to public health, safety or welfare, or to domestic, commercial, industrial, agricultural, recreational or other legitimate beneficial uses, or to livestock, wildlife, fish or other aquatic life or the habitat thereof. Statutory/Other Authority: ORS 468B.060, 496.138, 496.146, 496.750, 506.119 & 506.720 Statutes/Other Implemented: ORS 468B.060, 496.138, 496.146, 496.750, 506.119 & 506.720 History: DFW 10-1998, f. & cert. ef. 2-5-98 FWC 126-1991, f. 10-23-91, cert. ef. 11-1-91
635-410-0015 Investigation Procedures In investigating any natural resource loss, the Department shall use generally recognized and accepted scientific field, laboratory and analytical procedures to guide the field investigation of the natural resource loss, and specifically to: (1) Analyze and determine the cause(s) of losses; (2) Promptly respond to and mitigate losses; (3) Determine habitat or fish and wildlife management measures that may be required to restore fish and wildlife production in affected areas; (4) Determine violations of statute, rule or permits; and (5) Inform Department staff, other agencies, the general public and news media on the extent, nature, and causes of natural resource losses. Statutory/Other Authority: ORS 468B.060, 496.138, 496.146, 496.750, 506.119 & 506.720 Statutes/Other Implemented: ORS 468B.060, 496.138, 496.146, 496.750, 506.119 & 506.720 History: DFW 10-1998, f. & cert. ef. 2-5-98 FWC 126-1991, f. 10-23-91, cert. ef. 11-1-91
635-410-0020 Safety Policy It is the policy of the Department that no person shall enter potentially contaminated areas without the use of protective clothing and equipment as required by Oregon law. All personnel shall observe recommended precautions when working in chemically contaminated areas, and shall comply with applicable rules and statutes of the Oregon Occupational Health and Safety Administration. Statutory/Other Authority: ORS 468B.060, 496.138, 496.146, 496.750, 506.119 & 506.720 Statutes/Other Implemented: ORS 468B.060, 496.138, 496.146, 496.750, 506.119 & 506.720 History: DFW 10-1998, f. & cert. ef. 2-5-98 FWC 126-1991, f. 10-23-91, cert. ef. 11-1-91
635-410-0025 Unauthorized Collection of Samples No person shall collect injured or dead fish or wildlife without the express written consent of the Department. Any unauthorized collection may be considered tampering with evidence in violation of ORS 162.295, and illegal possession of wildlife, pursuant to ORS 498.002. Statutory/Other Authority: ORS 468B.060, 496.138, 496.146, 496.750, 506.119 & 506.720 Statutes/Other Implemented: ORS 468B.060, 496.138, 496.146, 496.750, 506.119 & 506.720 History: DFW 10-1998, f. & cert. ef. 2-5-98 FWC 126-1991, f. 10-23-91, cert. ef. 11-1-91
635-410-0035 Damage Assessment Procedure (1) The Department may seek recovery in damages for natural resource losses pursuant to CERCLA, either in lieu of or in addition to any recovery authorized by ORS 468B.060. (2) Pursuant to ORS 468B.060, the Department shall pursue recovery in the form of damages or, where desirable, in-kind compensation. The Department shall claim the full value of fish or wildlife injured or destroyed and, where applicable, the cost of restoring production in affected areas, including but not limited to habitat restoration. (3) Before initiating suit for damages in any court of competent jurisdiction, the Department shall serve a letter by registered or certified mail upon the responsible party demanding compensation for the value of the fish or wildlife injured or destroyed and the cost of restoring production in affected areas, including but not limited to habitat restoration. (4) If after 60 days from the date of mailing the responsible party fails or refuses to pay, the Department may seek recovery in a court of competent jurisdiction. (5) Any sums collected shall first be made available for habitat or population restoration work in the affected region. (6) In-kind compensation, in the form of habitat restoration or other actions beneficial to restoration of fish or wildlife production, may be acceptable to the Department, provided that, at a minimum: (a) The services are commensurate in value with the monetary value of the compensation claim; (b) The form of in-kind compensation is acceptable to both the Department’s Habitat Conservation Division and the appropriate Regional Office. Statutory/Other Authority: ORS 468B.060, 496.138, 496.146, 496.750, 506.119 & 506.720 Statutes/Other Implemented: ORS 468B.060, 496.138, 496.146, 496.750, 506.119 & 506.720 History: DFW 10-1998, f. & cert. ef. 2-5-98 FWC 126-1991, f. 10-23-91, cert. ef. 11-1-91