justicedao/ipfs_state_laws huggingface dataset:
141-120-0160 Designation Criteria for the Development Category (1) A local government may designate isolated wetlands one acre or less in area into the Development Category if: (a) The local government determines that there is no less damaging practicable alternative within the WCP area with the same zoning; and (b) The function and value assessment indicates that the wetland: (A) Provides no functions or values and has little enhancement potential; or (B) Provides or has potential to provide only functions or values that are not listed as WCP Goals; or (C) The local government demonstrates with findings of fact and supporting reasons that the wetland can reasonably be expected to be adversely impacted by committed infrastructure; and (2) A local government may designate wetlands or portions of wetlands notwithstanding the wetland’s size or connectivity into the Development Category if: (a) The local government determines that there is no less damaging practicable alternative with the same comprehensive plan land use designation within the WCP area; and (b) The functions and values assessment for the wetland indicates that the wetland: (A) Provides no function and has little enhancement potential; or (B) Provides or has potential to provide only functions or values that are not listed as WCP Goals and has little enhancement potential. (3) A local government may designate wetlands or portions of wetlands notwithstanding the wetland’s size or connectivity into the Development Category if: (a) The functions and values assessment for the wetland indicates that the wetland provides or has potential to provide a function or value that is listed as a WCP Goal or has enhancement potential; and (b) The local government: (A) Determines that there is no less damaging practicable alternative with the same comprehensive plan land use designation within the UGB, the Urban Service area or the Rural Service area; and (B) Provides an explanation, in the form of a finding of fact with supporting reasons, as to why the comprehensive plan’s land use designation cannot be changed to avoid impacting the wetland. (4) For the purposes of OAR 141-120-0160, the term “less damaging practicable alternative” means “less environmentally damaging practicable alternative.” Statutory/Other Authority: ORS 196.692 Statutes/Other Implemented: ORS 196.678 - 196.692, 215 & 227.350 History: LB 6-1994, f. & cert. ef. 10-20-94
141-120-0170 Uses Allowed in Development Category Wetlands A local government may allow the following uses after reviewing the proposed use against criteria and standards set out in the WCP implementing ordinances, that ensure that the uses meet the management directives in OAR 141-120-0150 and are intended to achieve WCP Goals: (1) All uses allowed in the WCP and implementing zoning ordinances; (2) Construction of committed infrastructure; and (3) Biofiltration or other wetland water treatment systems provided the proposed project meets all applicable water quality standards. Statutory/Other Authority: ORS 196.692 Statutes/Other Implemented: ORS 196.678 - 196.692, 215 & 227.350 History: LB 6-1994, f. & cert. ef. 10-20-94
141-120-0180 Planned Infrastructure Planned infrastructure may be authorized in a wetland designated in the Conservation Category in the following manner: (1) The party sponsoring the planned infrastructure may receive authorization directly from the Division under ORS 196.682; or (2) The Director may find that the project avoids wetlands in the WCP area to the degree practicable. If so, the Director’s order approving the WCP may identify the approximate location of the planned infrastructure if the local government: (a) Determines that the need for the planned infrastructure exists by showing that: (A) Existing development is dependent on the planned infrastructure; or (B) The planned infrastructure is required to allow access to buildable uplands. (b) Provides a showing of actions considered and taken to avoid and minimize impacts to the wetland system in the planning area; and (c) Provides the general area for the location of the planned infrastructure. (d) To obtain authorization from the Division to construct planned infrastructure with its approximate location identified in the Director’s order: (A) The local government shall provide: (i) The final alignment and right of way for the planned infrastructure; and (ii) The steps considered and taken to avoid and minimize impacts to the wetland including bridging, culverting and placing the infrastructure at other locations within the wetland. (B) The Director shall evaluate the information provided under paragraph (2)(d)(A) of this rule in the expedited fashion authorized under ORS 196.682. (3) The Director’s order approving the WCP may authorize construction of planned infrastructure if the local government: (a) Determines that the need for the planned infrastructure exists by showing that: (A) Existing development is dependent on the planned infrastructure; or (B) The planned infrastructure is required to allow access to buildable uplands. (b) Provides a showing of actions considered and taken to avoid and minimize impacts to the wetland system in the planning area; (c) Provides the final alignment and right of way for the planned infrastructure; and (d) Provides the steps considered and taken to avoid and minimize impacts to the wetland including bridging, culverting and placing the infrastructure at other locations within the wetland. (4) “Showing” in this rule means findings of fact with supporting reasons. Statutory/Other Authority: ORS 196.692 Statutes/Other Implemented: ORS 196.678 - 196.692, 215 & 227.350 History: LB 6-1994, f. & cert. ef. 10-20-94
141-120-0190 Implementing Ordinances To meet the requirements of this rule, the local government’s implementing ordinances shall include standards and criteria that regulate: (1) Alteration or removal of vegetation including trees; (2) Uses allowed in wetlands placed into the Protection and Conservation Categories after review by the local government; and (3) How protection in perpetuity for wetlands designated protection is provided. Statutory/Other Authority: ORS 196.692 Statutes/Other Implemented: ORS 196.678 - 196.692, 215 & 227.350 History: LB 6-1994, f. & cert. ef. 10-20-94
141-120-0200 Information Requirements Local governments shall provide: (1) The implementing ordinances that set out the standards and criteria necessary to ensure that allowed uses comply with the management directives for protection, conservation and development and an explanation of how the ordinance ensures compliance with the management directives; (2) All determinations, showings and findings with supporting documents and maps developed or used to fulfill requirements of OAR 141-120-0000 to 141-120-0230; (3) Maps of the land use designations used in the local comprehensive plan; (4) Maps if available, and explanatory narrative of the local buildable lands inventory; (5) Where applicable, consideration of plans and projects of adjacent jurisdictions; (6) The list of sites placed into each Wetland Resource Designation and supporting information; and (7) Information required by OAR 141-120-0180 to determine the method to be used for planned infrastructure in the Director’s order. Statutory/Other Authority: ORS 196.692 Statutes/Other Implemented: ORS 196.678 - 196.692, 215 & 227.350 History: LB 6-1994, f. & cert. ef. 10-20-94
141-120-0210 Director’s Determinations When reviewing the local government’s wetland resource designations and analysis of alternatives, the Director shall: (1) Consult with the local government and, as necessary, the Department of Land Conservation and Development on the information provided under OAR 141-120-0200. (2) Determine whether the local government has: (a) Applied the wetland resource designation criteria as intended; (b) Developed standards and criteria for reviewing allowed uses that ensure the uses meet the management directives for the appropriate wetland resource designation; (c) Avoided adverse impacts to wetland systems to the extent practicable; (d) Minimized the impacts of fill or removal to the wetland system in the WCP area; and (e) Demonstrated that the WCP provides protection in perpetuity for areas placed into the Protection Category. (3) Determine whether planned infrastructure will be authorized in the Director’s order approving the WCP or identified for locating in any approximate area of the WCP area. Statutory/Other Authority: ORS 196.692 Statutes/Other Implemented: ORS 196.678 - 196.692, 215 & 227.350 History: LB 6-1994, f. & cert. ef. 10-20-94
141-120-0220 Jurisdictions Not Governed by this Rule A jurisdiction that submits a WCP to the Division within six months from the date this rule is adopted may be exempt from the requirements of OAR 141-120-0000 to 141-120-0230 if, within 90 days from adoption of this rule, the jurisdiction demonstrates to the Director’s satisfaction that the jurisdiction has made substantial progress toward designating wetland resources for protection, conservation or development and analysing alternatives to adversely impacting wetlands by other means. Statutory/Other Authority: ORS 196.692 Statutes/Other Implemented: ORS 196.678 - 196.692, 215 & 227.350 History: LB 6-1994, f. & cert. ef. 10-20-94
141-120-0230 Citation of Statutory Authority ORS 196.692 authorizes the Division of State Lands to adopt rules to carry out the provisions of ORS 196.668 through 196.692, Wetland Inventory and Wetland Conservation Plans. Statutory/Other Authority: ORS 196.692 Statutes/Other Implemented: ORS 196.678 - 196.692, 215 & 227.350 History: LB 6-1994, f. & cert. ef. 10-20-94
141-121-0000 Applicability (1) These rules, authorized by ORS 274.400 through 274.412, prescribe the procedure which the Land Board and the Division will follow to assert title to land underlying Oregon’s waterways from the date of rule adoption. (2) These rules do not apply to: (a) Those parts of waterways which have had their ownership determined through adjudication by a court having jurisdiction to determine title to real property in Oregon; and (b) All tidally influenced waters. Statutory/Other Authority: ORS 273.041 - 273.185 & 274.400 - 274.412 Statutes/Other Implemented: ORS 274.400 - 274.412 History: LB 4-1996, f. & cert. ef. 6-14-96
141-121-0010 Definitions (1) “Affected Property Owners” refers to those people listed in the records of the county assessor as owners of property fronting, abutting or underlying, or having a recorded easement allowing access to a waterway segment at the time that the Division undertakes a navigability study of the subject waterway. (2) “Broad And Substantial Public Interest” exists when the Land Board, after considering the public’s right to the use of a waterway segment and the authority of the state and local governments, determines that an administrative determination of navigability is required to: (a) Help resolve conflicts between property owners, between users (including recreational users), or between users and affected property owners of a waterway segment; (b) Facilitate management or protection of a waterway segment (for example, its environmental components or scenic, historic and cultural values); and/or (c) Facilitate and promote commerce. (3) “Declaration” is a final decision of the Land Board concerning the nature and extent of the state’s claim to the bed and banks underlying the waterway segment under consideration. (4) “Division” means the Oregon Division of State Lands. (5) “Land Board” means the Oregon State Land Board. (6) “Navigable” and “Navigability” are defined by the criteria established by federal courts having jurisdiction to determine the extent of state ownership of land underlying a waterway segment. (7) “Navigability Study” is the process of collecting, evaluating, and preparing a report relating to the use and characteristics of a waterway segment in order to determine if it is navigable. (8) “Person” is an individual, special interest group, political subdivision or government agency, or any corporation, association, firm, partnership, joint stock company, limited liability company, limited liability partnership, or quasi-public corporation. (9) “Requester” is any person requesting that the Land Board direct the Division to conduct a navigability study. (10) “Sufficient Economic Justification” exists when the Land Board decides that a determination of navigability will result in revenue accruing to the Common School Fund from a leasable use (as defined by Division administrative rules) of the waterway segment or underlying land (for example, the placement of marinas or log rafts, or the extraction of aggregate). (11) “Title” is fee simple ownership to property, in this case, the bed and banks underlying a waterway segment. (12) “Waterway” refers for the purposes of these rules to any discrete, identifiable body of water and its bed and banks in Oregon including, but not limited to, rivers, streams, and lakes. Statutory/Other Authority: ORS 273.041 - 273.185 & 274.400 - 274.412 Statutes/Other Implemented: ORS 274.400 - 274.412 History: LB 4-1996, f. & cert. ef. 6-14-96
141-121-0020 Request for a Navigability Study (1) Only the Land Board can direct the Division to undertake a navigability study. (2) All requests to undertake a navigability study shall be submitted to the Division in writing and shall, at a minimum, include the following information: (a) The name and specific segment (identified through the use of river miles or other clearly locatable geographic place names or features) of the waterway segment for which a navigability study is requested; (b) Discussion and evaluation of the substantial economic justification for, and/or broad and substantial public interest in support of a navigability study; (c) Description of any use conflicts, contact with local, state and federal authorities, and efforts to resolve problems; and (d) Available evidence that the subject waterway segment is or is not likely to be navigable. (3) Navigability study requests which are incomplete will be returned to the requester by the Division with the deficiencies noted in writing. The Division shall not act on requests until all information required in OAR 141-121-0020(2) is provided. (4) The Division shall give public notice of receipt of a complete request to undertake a navigability study of a particular waterway segment. This notice shall be published in a statewide newspaper, and also a newspaper of general circulation in the area in which the waterway segment is located. The notice shall be sent to persons requesting such notices and other interested persons (for example, local government, watershed councils, etc.). (5) The Division shall refer all complete navigability study requests to the Land Board. The Division shall fully describe the request and give the Division’s recommendation(s) based on its evaluation of the following considerations: (a) Whether sufficient economic justification and/or broad and substantial public interest exists to justify such a study; (b) If other alternative means exist to resolve the use conflicts identified in the study request; (c) The relative importance of the issue(s) as compared with other study requests; (d) The cost of conducting the required study; and (e) The Division’s workload and the availability of funding. (6) The Division shall ask the Land Board to direct it to undertake a navigability study, postpone undertaking the study, reject the request, or provide it with other instructions. Statutory/Other Authority: ORS 273.041 - 273.185 & 274.400 - 274.412 Statutes/Other Implemented: ORS 274.400 - 274.412 History: LB 4-1996, f. & cert. ef. 6-14-96
141-121-0040 Adoption of Navigability Report (1) The Division shall select a date and time when it will present the Final Navigability Report to the Land Board, and shall prepare a meeting notice. The notice shall: (a) Briefly describe the findings and conclusions of the Final Navigability Report and advise people how to obtain a copy; (b) Be published not less than once each week for three (3) successive weeks in a statewide newspaper, and also a newspaper of general circulation in the area in which the waterway segment is located; and (c) Be sent to affected property owners, persons who request such notices, and other interested persons (for example, local government, watershed councils, etc.). The Division shall also send a copy of the Draft Navigability Study to county public libraries in the area of the subject waterway segment. (2) The Land Board shall consider the evidence in the record and the Division’s findings and conclusions as contained in the Final Navigability Report, and shall make a decision concerning the nature and extent of the state’s claim to the land underlying the waterway segment. Based on the information provided, the Land Board may adopt the findings and conclusions contained in the Final Navigability Report if substantial evidence in the record supports the report’s findings and conclusions. (3) If the Land Board adopts the findings and conclusions contained in the Final Navigability Report, it shall issue a written declaration which: (a) States the nature and extent of the state’s claim to the land underlying the subject waterway segment; (b) Clearly describes the location of the land claimed by the state using common descriptions or maps designed to identify the land or waterway segment in a manner intelligible to the lay person and useful in establishing the exact location of the state claim in relation to existing legal descriptions; (c) Advises that any person aggrieved may seek judicial review of the declaration subject to the provisions of ORS 183.310 to 183.550; (d) Is published not less than once each week for three (3) successive weeks in a statewide newspaper, and also a newspaper of general circulation in the area the waterway segment is located; and (e) Is sent to affected property owners, persons who request such notices, and other interested persons (for example, local government, watershed councils, etc.). Statutory/Other Authority: ORS 273.041 - 273.185 & 274.400 - 274.412 Statutes/Other Implemented: ORS 274.400 - 274.412 History: LB 4-1996, f. & cert. ef. 6-14-96
141-122-0060 Compensation (1) Except as provided in OAR 141-122-0060(3), the Department will, prior to granting an easement, require an applicant to submit to the Department a compensatory payment for each individual crossing or use of state-owned land in the greatest of: (a) 100 percent of the market value of the area requested for the easement if it is on, over or above state-owned upland for uses as defined in OAR 141-122-0010(2) and (3). Market value is either: (A) Real market value as determined by the county tax assessor for DSL parcel impacted and the benefitting tax lot(s); or (B) An appraised value that is acceptable to the Department and that has been prepared by a qualified state-certified appraiser. (b) Minimum compensation fee as follows: (A) Utilities: $3,500.00 (B) Roadways: $2,500.00 (C) Miscellaneous Development: $1,000.00 (2) If required by the Department, applicants must also submit to the Department a payment in an amount to be determined by the Department for the market value of any commercially valuable timber, sand and gravel, or other natural resources in the easement area which must be removed during or after placement of the proposed use, or which cannot be developed because of the easement use. Such payment shall be due at a date to be determined by the Department. (3) The Department may, in lieu of a cash compensatory payment, negotiate a non-cash compensatory payment equivalent to or greater than the compensation required under OAR 141-122-0060(1). Statutory/Other Authority: ORS 273.045 Statutes/Other Implemented: ORS 273.761, 274.040, 274.720, 376.620, 530.050, 530.490 & 758.010 History: DSL 1-2019, amend filed 01/08/2019, effective 01/08/2019 DSL 4-2008, f. & cert. ef. 10-15-08 DSL 7-2002, f. 12-23-02, cert. ef. 1-1-03 DSL 6-2000, f. 8-11-00, cert. ef. 9-1-00
141-122-0080 Assignment of Easements (1) An easement in good standing is transferable. Prior written consent of the Department is required prior to any transfer of the easement. No transfer may increase the burden on the estate or detract from the value of the underlying state land. (2) The Holder of an easement wanting to transfer their easement must submit to the Department: (a) Notice of proposed transfer on a form provided by the Department at least 60 calendar days prior to the date that the transfer is to occur; and (b) Non-refundable transfer processing fee of $1,000.00 payable to the Department. Statutory/Other Authority: ORS 273.045 Statutes/Other Implemented: ORS 273.761, 274.040, 274.720, 376.620, 530.050, 530.490 & 758.010 History: DSL 1-2019, amend filed 01/08/2019, effective 01/08/2019 DSL 4-2008, f. & cert. ef. 10-15-08 DSL 7-2002, f. 12-23-02, cert. ef. 1-1-03 DSL 6-2000, f. 8-11-00, cert. ef. 9-1-00
141-122-0090 Termination of an Easement (1) The Department may terminate any easement: (a) If there is no use of, or development placed on the easement area for five consecutive years; (b) If the easement is for a structure or facility necessary for the use of water on state-owned land and the associated right to use water is cancelled by the Oregon Water Resources Department or abandoned by the easement Holder. Upon such termination, the Department will notify the easement Holder in writing using the last known address reported by the easement Holder to the Department. This notification will state that the easement has terminated, and that the easement Holder will have 30 calendar days from the date of the notice to respond in writing to the Director why the easement should be reinstated. The Director will notify the easement Holder in writing of his/her decision within 60 calendar days of receipt of the request for reinstatement of the easement; or (c) If the Holder of the easement fails to comply with these rules or the terms and conditions of the easement, or violates other laws covering the use of their authorized area, the Department will notify the Holder of the easement in writing of the default and demand correction within a specified time frame. If the Holder of an easement fails to correct the default within the time frame specified, the Department may: (A) Modify or terminate the easement; or (B) Invoke other remedies as provided in OAR 141-122-0130. (2) Notwithstanding the provision of OAR 141-122-0090(1), the Department will not terminate a term easement if the Holder of the easement is ready, but unable to commence the requested use within the five-year period due to their inability to obtain other required authorizations within the five-year period. Statutory/Other Authority: ORS 273.045 Statutes/Other Implemented: ORS 273.761, 274.040, 274.720, 376.620, 530.050, 530.490 & 758.010 History: DSL 1-2019, amend filed 01/08/2019, effective 01/08/2019 DSL 4-2008, f. & cert. ef. 10-15-08 DSL 7-2002, f. 12-23-02, cert. ef. 1-1-03 DSL 6-2000, f. 8-11-00, cert. ef. 9-1-00