LC 2125
AS THE ANTI DREDGING CANCER FROM THE KLAMATH SPREADS IT'S INSIDEOUS TENTACLES YET EVER OUTWARD ,YET ANOTHER STATE IS DIRECTLY INFECTED BY THIS ANTI EVERY FORM OF MINING BILL------ 
2013 Regular Session11/21/12 (DLT/ps)
D R A F T
SUMMARY
Prohibits placer mining using any form of motorized equipment or motorized
dredge. Punishes by maximum of one year’s imprisonment, $6,250 fine,
or both.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to placer mining; creating new provisions; amending ORS 196.910
and 390.835; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. (1) Placer mining using any form of motorized equipment
or motorized dredge is prohibited in this state.
(2) Subsection (1) of this section does not apply to:
(a) Prospecting described in ORS 390.835.
(b) Prospecting described in ORS 196.810.
(c) Prospecting, small scale mining and recreational mining described
in ORS 517.120 to 517.133.
(3) Violation of subsection (1) of this section is a Class A
misdemeanor.
SECTION 2. ORS 196.910 is amended to read:
196.910. The Department of State Lands shall:
(1) Monitor removal and fill activities, including but not limited to prospecting
[and placer mining], within designated essential indigenous
anadromous salmonid habitat areas to determine the effects of such activities
on salmonid spawning and rearing habitat and compile the results in an annual
report.
NOTE: Matter in boldfaced type in an amended section is new; matter [italic and bracketed] is existing law to be omitted.
New sections are in boldfaced type.
(2) Cooperate with the State Department of Fish and Wildlife and other
interested parties to develop and distribute public education and information
materials designed to increase understanding and awareness of permit requirements
and acceptable removal and fill practices related to prospecting
[and placer mining].
(3) Report periodically to the appropriate legislative committee on the
progress of the Department of State Lands in implementing ORS 196.810.
SECTION 3. 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 freeflowing
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 recreational
prospecting not requiring a permit shall be prohibited, except as permitted
by the Director of the Department 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 in a manner consistent with the policies
set forth under ORS 196.800 to 196.825 and 196.845 to 196.870 for removal of
material from the beds and banks and filling of any waters of this state. The
Director of the Department of State Lands shall administer and enforce the
provisions of this subsection.
(3)(a) Upon a finding of emergency circumstances, the Director of the
Department of State Lands may issue a temporary permit for the removal,
filling or alteration of the beds or banks within a scenic waterway. The
temporary permit shall include conditions developed after consultation with
the State Department of Fish and Wildlife and the State Parks and Recreation
Department.
(b) As used in this subsection, “emergency circumstances” exist if prompt
action is necessary to prevent irreparable harm, injury or damage to persons
or property.
(4) Any person adversely affected or aggrieved by the grant or denial of
a permit under subsection (2) or (3) of this section may appeal in accordance
with the procedure set forth in ORS 196.835.
(5) 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.
(6) 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 0.005 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 freeflowing
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.
(7) In making the findings required under subsection (6) of this section,
the Water Resources Commission shall consider the existing or potential
cumulative impacts of issuing the water right.
(8) The Water Resources Commission may not allow human consumption
and livestock uses authorized under subsection (6) 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 Department 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.
(9)(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 (10) 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 (13) 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.
(10) 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.
(11) The Water Resources Commission and the Water Resources Director
shall carry out their responsibilities under ORS 536.220 to 536.590 with respect
to the waters within scenic waterways in conformity with the provisions
of this section.
(12) As used in this section, “measurably reduce” means that the use authorized
under subsection (9) 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 Department 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.
(13) Before authorizing an appropriation that will reduce streamflows
within a scenic waterway in amounts up to but not exceeding the amounts
described in subsection (12) 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.
(14) No placer mining shall be permitted on waters within scenic
waterways [other than recreational placer mining].
(15) 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.
[(16) No provision of this section shall be construed to exempt recreational
placer mining on a scenic waterway, other than recreational prospecting not
requiring a permit, from compliance with the provisions of ORS 196.800 to
196.825 and 196.845 to 196.870 or rules adopted pursuant to ORS 196.800 to
196.825 and 196.845 to 196.870.]
[(17) Recreational placer mining, other than recreational prospecting not
requiring a permit, shall not:]
[(a) Dam or divert a waterway or obstruct fish passage;]
[(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 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 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.]
[(18)] (16) As used in this section:
(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 re-
duction standards. “Recreational placer mining” does not include recreational
prospecting that does not require a permit.]
[(d)] (c) “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.
SECTION 4. ORS 390.835, as amended by section 8, chapter 516, Oregon
Laws 2001, 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 freeflowing
character of these waters shall be maintained in quantities necessary
for recreation, fish and wildlife uses. A dam, reservoir or other water
impoundment facility may not be constructed on waters within scenic
waterways. A water diversion facility may not 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 recreational
prospecting not requiring a permit shall be prohibited, except as permitted
by the Director of the Department 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 in a manner consistent with the policies
set forth under ORS 196.800 to 196.825 and 196.845 to 196.870 for removal of
material from the beds and banks and filling of any waters of this state. The
Director of the Department of State Lands shall administer and enforce the
provisions of this subsection.
(3)(a) Upon a finding of emergency circumstances, the Director of the
Department of State Lands may issue a temporary permit for the removal,
filling or alteration of the beds or banks within a scenic waterway. The
temporary permit shall include conditions developed after consultation with
the State Department of Fish and Wildlife and the State Parks and Recreation
Department.
(b) As used in this subsection, “emergency circumstances” exist if prompt
action is necessary to prevent irreparable harm, injury or damage to persons
or property.
(4) Any person adversely affected or aggrieved by the grant or denial of
a permit under subsection (2) or (3) of this section may appeal in accordance
with the procedure set forth in ORS 196.835.
(5) 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.
(6) 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 0.005 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 freeflowing
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.
(7) In making the findings required under subsection (6) of this section,
the Water Resources Commission shall consider the existing or potential
cumulative impacts of issuing the water right.
(8) The Water Resources Commission may not allow human consumption
and livestock uses authorized under subsection (6) 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 Department 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.
(9)(a) The provisions of this section do not apply to a water right appli-
cation 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 (10) 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 (13) 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) This subsection does not limit the use of ground water for a use exempted
under ORS 537.545.
(10) 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.
(11) The Water Resources Commission and the Water Resources Director
shall carry out their responsibilities under ORS 536.220 to 536.590 with respect
to the waters within scenic waterways in conformity with the provisions
of this section.
(12) As used in this section, “measurably reduce” means that the use authorized
under subsection (9) 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 Department 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.
(13) Before authorizing an appropriation that will reduce streamflows
within a scenic waterway in amounts up to but not exceeding the amounts
described in subsection (12) 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.
(14) Placer mining is not permitted on waters within scenic waterways[,
other than recreational placer mining].
(15) A person may not be required to obtain a permit for recreational
prospecting or other nonmotorized recreational activity 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.
[(16) This section does not exempt recreational placer mining on a scenic
waterway, other than recreational prospecting not requiring a permit, from
compliance with the provisions of ORS 196.800 to 196.825 and 196.845 to
196.870 or rules adopted pursuant to ORS 196.800 to 196.825 and 196.845 to
196.870.]
[(17) Recreational placer mining may not:]
[(a) Dam or divert a waterway or obstruct fish passage;]
[(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 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 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.]
[(18)] (16) As used in this section:
(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)] (c) “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.
SECTION 5. Section 1 of this 2013 Act applies to conduct occurring
on or after the effective date of this 2013 Act.
SECTION 6. This 2013 Act being necessary for the immediate preservation
of the public peace, health and safety, an emergency is declared
to exist, and this 2013 Act takes effect on its passage.
oh it can't happen here they said--only them kalif fools would let it happen---not in MY state---my rights are forever COMING SOON TO YOUR HOME STATE ASAP--CAN YA'ALL FEEL THE LOOOOOOOVE???????John
THIS BILL PROHIBITS "ALL MINING WITH ANY ENGINE ANYWHERE,EVERYWHERE IN ANY FORM MMMMMMMMM NICE
