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State
Oregon
OAR Division 20 Parks and Recreation Department BEACH CONSTRUCTION/ALTERATION STANDARDS


The Oregon Administrative Rules contain OARs filed through March 15, 2005

PARKS AND RECREATION DEPARTMENT

DIVISION 20

BEACH CONSTRUCTION/ALTERATION STANDARDS


736-020-0001

Scope and Purpose

These rules implement the statutory mandates in ORS 390.605 to 390.660 and 390.690 to 390.770 to protect and preserve the scenic and recreational values and public rights in the ocean shore, permit certain types of development according to standards of review and grant emergency permits where property is in imminent peril of destruction by the Pacific Ocean or natural forces. The purpose of these rules is to describe the permitting requirements, fees, review standards, permit conditions, enforcement measures and administrative relief opportunities that apply to applicants for permits to make improvements on the ocean shore, construct pipelines, cables or conduits across the ocean shore, or to remove products along the ocean shore.

Stat. Auth.: ORS 390.124
Stats. Implemented: ORS 390.605 - ORS 390.770 & ORS 390-990 - ORS 390.995
Hist.: PRD 7-2000, f. & cert. ef. 5-10-00

736-020-0002

Definitions

(1) "Alteration" -- means "improvement" as that term is defined by statute, ORS 390.605(1), and included in these definitions at OAR 736-020-0002(9).

(2) "Commission" -- means the Oregon Parks and Recreation Commission.

(3) "Construction Value" -- means the costs of labor, equipment, materials, and all contractor fees, where those costs are incurred by the applicant or the applicant's agent(s).

(4) "Department" -- means the Oregon Parks and Recreation Department.

(5) "Director" -- means the Oregon Parks and Recreation Director.

(6) "Emergency Permit" -- means a written or oral permit for a new improvement, or the repair, replacement or restoration of an existing or authorized improvement, deemed necessary to protect property or property boundaries in imminent peril of being destroyed or damaged by action of the Pacific Ocean or the waters of a bay or river.

(7) "Fill" -- means the total of deposits, by artificial means, of material at any one location within the boundaries of the ocean shore.

(8) "Imminent Peril" -- means a situation in which property is likely to be severely damaged or destroyed by action of the Pacific Ocean or waters of a bay or river, or by landslide or other natural forces, and where such damage would be likely to occur prior to the time required for approval of an Ocean Shore Permit.

(9) "Improvement" -- means 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 (ORS 390.605(1)). For the purpose of these rules, the term "alteration" shall be used in place of "improvement" except as otherwise specified in these rules.

(10) "Just Compensation" -- means payment(s) of cash, or other legally acceptable valuable consideration, as compensation to the State of Oregon for the right to construct or occupy the ocean shore with a pipeline, cable or conduit or gather natural products from the ocean shore for commercial use or private gain.

(11) "Line of Established Upland Shore Vegetation" -- means that line along the Pacific Ocean shore where upland vegetation cover becomes continuous; or, where minor gaps, breaks or landward indentations in the line of continuous vegetation occur, the projected line across the gap, break or landward indentation connecting the line of continuous vegetation on either side.

(12) "Material" -- means rock, gravel, sand, silt, and other inorganic substances removed from the ocean shore and any materials, organic or inorganic placed within the ocean shore.

(13) "Ocean Shore" -- means the land lying between extreme low tide of the Pacific Ocean and the statutory vegetation line as 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 (ORS 390.605 (2)). For purposes of these rules, at the mouth of estuaries, the inland extent of the ocean shore extends only to that point at which the statutory vegetation line crosses the estuary.

(14) "Ocean Shore Permit" -- means a permit for a structure, appurtenance or other addition, modification or alteration, including habitat restoration, constructed, placed or made on the ocean shore as required by the provisions of ORS 390.640; a permit for a pipeline, cable line, or conduit placed or made across or under the ocean shore as required by the provisions of ORS 390.715; or a permit for the removal of products from the ocean shore as required by the provisions of ORS 390.725.

(15) "Property" -- means an upland building, road, street, highway, sewer or water line, or other infrastructure improvement.

(16) "Public Agencies" -- means federal and state agencies, local governments, and municipal and quasi-municipal jurisdictions designated under Oregon law.

(17) "Removal" -- means the taking of material from the ocean shore, or the movement, alteration or displacement of material on the ocean shore by artificial means.

(18) "Responsible Party" -- means the person(s), including the landowner, applicant or permittee and their contractors or agents, or the company, organization, local, state or federal agency or other entity in violation of the ocean shore statutes, rules, standards, permit conditions or order of the Director, pertaining to an improvement project; pipeline, cable or conduit project; or natural product removal project on the ocean shore.

(19) "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 (ORS 390.605(3).

Stat. Auth.: ORS 390.124
Stats. Implemented: ORS 390.605 - ORS 390.770 & ORS 390.990 - ORS 390.995
Hist.: PRD 7-2000, f. & cert. ef. 5-10-00

736-020-0003

Ocean Shore Permit Application Review Process

(1) In accordance with ORS 390.640, 390.715, and 390.725, no person shall make an alteration, or construct a pipeline, cable line or conduit or remove any natural product on any property that is within the ocean shore, without first obtaining a permit to do so from the Department in accordance with the provisions of OAR 736-020-0003 through 0032, 736-020-0035, or 736-020-0040 as described in these rules, except as provided by section (9) of this rule.

(2) Any person desiring to construct an ocean shore alteration, under ORS 390.640; or place any pipeline, cable line, or other conduit over, across or under the state recreation area or submerged lands adjoining the ocean shore under ORS 390.715; or remove sand, rock, mineral or marine growth or other natural product of the ocean shore for trade, sale, resale or for use in the production, manufacture, fabrication or marketing of a commercial product under ORS 390.725, except as provided by section (9) of this rule, shall submit an application to the Department. It shall be in such form as may be prescribed by the Department and shall be signed by the party, parties, or the authorized agent for the party or parties seeking the permit. Such application:

(a) If for an alteration (improvement) under ORS 390.640, shall contain a description of the proposed project, the location thereof and any other information so prescribed on the application form; and

(b) If for an ocean front protective structure, shall be accompanied by an analysis of hazard avoidance alternatives, including relocation of existing buildings or other infrastructure, or increased setbacks for new buildings or infrastructure. Such analysis shall describe why hazard avoidance alternatives are not feasible, or if tried, why they were not successful. Relevant factors may include topographic limitations, limits of area for relocation, or cost. If the cost of moving a building or infrastructure is listed as a factor which makes hazard avoidance unfeasible, then the application shall include cost estimate(s) from licensed contractors specializing in building relocation; and

(c) If for an ocean front protective structure greater than 50 feet in length, shall be accompanied by a report from a registered professional geologist experienced in coastal processes that describes:

(A) The potential impacts from the proposed project on sand source, supply and movement on the affected beach as well as within the same littoral cell;

(B) The bank or bluff stability and erosion rates on the subject property and adjacent properties and the potential impacts of the proposed project on bluff stability and erosion rates on the subject and adjacent properties;

(C) A review of potential non-structural solutions, including, but not limited to, vegetative stabilization, non-structural dynamic revetments and foredune enhancement. The review shall describe reasons why non-structural solutions were unsuccessful, if tried, or why they were considered unfeasible.

(D) The known or suspected geologic and seismic hazards in the project area and how the proposed project may affect or be impacted by those geologic and seismic hazards.

(d) If for a pipeline, cable line or other conduit under ORS 390.715, shall contain proposed plans for the work indicating the location, nature, scope and purpose of the project, the materials and equipment to be used and the estimated time for completion; or

(e) If for natural product removal under ORS 390.725, shall contain a description of the material to be removed, the location thereof, the method of removal (including a description of equipment to be used), the amount thereof, the purpose for which it shall be used and the time and duration of removal.

(f) Shall include the names of all ocean front property owners owning property that abuts the property described in the application.

(3) Upon receipt of a satisfactory and complete permit application, the site of the proposed project will be posted with a public notice for a period of not less than 30 days. The notice shall contain the name of the applicant, a description of the proposed improvement, pipeline, cable line or conduit or natural product removal project and such other details of the project as the Department may deem of interest to the public.

(4) In addition to the notice described in section (3) of this rule, notice of the application shall be provided to adjacent, oceanfront landowners, with property boundaries common to those of the property described in the application.

(5) During the period specified in the public notice described in section (3) of this rule, the applicant or any member of the public may request a hearing on the proposed project. Such requests for hearing shall be in writing, and if filed by persons other than the applicant, shall state the interests in the proposed project of the person making the request. The Department may schedule and hold a public hearing on any application on the Director's initiative.

(6) If timely, written requests for a hearing are received from the applicant, or 10 or more other persons, or the Director decides a hearing is necessary, the Department shall schedule and hold a public hearing prior to acting on the project application.

(7) Following the public hearing on a project application, or, if no public hearing was held, after the time for requesting a public hearing has expired, consideration will be given to determine if the granting of such permit would in any way be detrimental to the interests and safety of the public and to the preservation of the natural resource, scenic, recreational and economic values of the ocean shore.

(8) In addition to the requirements and considerations in sections (1) through (7) of this rule, the Department shall also apply those standards set forth in OAR 736-020-0005 through 736-020-0030.

(9) The Department may waive the permitting requirements described in this rule for those structures and appurtenances or other additions constructed or placed on the ocean shore, or removal or fill activities conducted on the ocean shore, which meet one or more of the following conditions:

(a) The alteration would have no identifiable construction value;

(b) The alteration involves the removal or fill of less than 50 cubic yards of material on the ocean shore;

(c) The alteration is an incident of an individual or group recreational activity; and

(d) The alteration utilizes materials naturally available on the ocean shore.

(e) The alteration consists of returning sand or other natural product to the ocean shore, when necessary to clear public access routes, protect buildings from sand or debris inundation, or protect other public or private infrastructure.

(10) The Department shall give notice of any application for a project under ORS 390.640, 390.715, OR 390.725, hearing on such an application, or decision to approve or deny such an application, to any person making written request for such notice.

(11) Prior to the issuance of any permit under these rules and regulations, the Department shall send copies of the application to:

(a) The Department of Fish and Wildlife;

(b) The Department of Geology and Mineral Industries;

(c) The Division of State Lands;

(d) The Department of Land Conservation and Development;

(e) The State Historic Preservation Office;

(f) Any Indian tribe identified by the Legislative Commission on Indian services as having a potential interest in the proposed project; and

(g) Any other appropriate agency, for their comments and recommendations.

(12) As part of the applicant's application materials, appropriate information shall be submitted regarding necessary permits, or other necessary authorization from any affected unit of local, state or federal government.

(13) In the event it is determined that the issuance of a permit hereunder will affect property not owned by the applicant, the Department shall withhold the issuance of such permit until such time as the applicant shall have obtained an easement, license, or other written authorization from fee owner of such land. Such easement, license, or other written authority, shall meet the approval of the Department, except as to the compensation to be paid to the private fee owner.

(14) At its option, and prior to the issuance of any permit under ORS 390.715 or 390.725, the Department may require the applicant to obtain liability insurance in an amount prescribed by the Department, insuring against any and all property damage or personal injury which might arise out of the work or project covered by the proposed permit. In the event the same is required by the Department, the applicant shall produce satisfactory evidence of such insurance in the form of a certificate from the insuring company indicating that such insurance is in effect; and further that such insurance will not be cancelled without first giving ten days prior notice thereof to the Department.

Stat. Auth.: ORS 183.545, ORS 184, ORS 390.605 et seq. & ORS 390.124
Stats. Implemented: ORS 390.605 - ORS 390.770 & ORS 390.990 - ORS 390.995
Hist.: PR 12-1984, f. & ef. 12-12-84; PR 8-1992, f. & cert. ef. 11-12-92; PRD 7-2000, f. & cert. ef. 5-10-00

736-020-0004

Fees

(1) Fees -- each application filed under ORS 390.640, for an alteration on the ocean shore shall be accompanied by a processing fee for the purpose of partial recovery to the department of its administrative costs. The fee shall be determined according to the construction value of the project. The application processing fee shall be:

(a) $400 for projects with a construction value less than $2,500; and

(b) $400 plus three percent of the construction value over $2,500 for projects with a construction value equal to or greater than $2,500.

(2) In determining the construction value of a proposed project, the Department:

(a) May consider the entire project, not just that portion on the ocean shore. Examples of, but not the only, projects where the entire alteration may be considered in establishing construction value include, ocean shore protective structures such as riprap revetments, concrete seawalls, and other hard structures of wood, metal, rock or concrete; dynamic revetments, log, cobble and sand berms and other non-structural forms of ocean shore protection;

(b) May, in its discretion, consider only that portion of a project on the ocean shore. Examples of, but not the only, projects where only that portion of the alteration on the ocean shore may be considered in establishing construction value include, stairways, ramps and other access and viewing facilities, sand removal, beach nourishment, dune grading and vegetation management;

(c) May assess only the base fee to public agencies proposing projects whose primary purpose is to improve public access to the ocean shore, or maintain, repair or replace existing public infrastructure on the ocean shore regardless of construction value;

(d) May waive the application fee for public agency applications proposing projects that would have the primary purpose of enhancing the natural, resource, scenic, recreational and economic values of the ocean shore, or restoring native beach or dune habitat, contributing to the recovery of sensitive species, including state and federally listed threatened and endangered species or otherwise benefitting the native biological values of the ocean shore.

(3) Evidence the Department may consider in establishing the construction value of a project shall include:

(a) Itemized estimates from licensed, bonded, contractors;

(b) Construction values accepted by the county or city for purposes of issuing local permits;

(c) Itemized costs of equipment rental and other such charges if the project is completed by the property owner;

(d) Estimates that reflect unit costs typically associated with the type, quality and standards of construction proposed in the application; and

(e) Other evidence of costs acceptable to the Department if (a), (b), (c), or (d) of this section are not available.

(4) The Department may require an applicant to provide additional information, supporting evidence or seek additional independent bids for a project if the Department believes the project costs represented by the applicant are not reflective of costs typically associated with the type, quality and standards of construction proposed in the application.

(5) Refunds -- if a written request is received to withdraw an application, application fees may be refunded according to the following schedule:

(a) If the application is withdrawn within the first three working days following the date of submittal, the entire application fee shall be refunded;

(b) If the application is withdrawn prior to the close of the 30-day notice posting period described in ORS 390.650(3), one-half of the amount in excess of the $400 basic application fee shall be refunded;

(c) No refund shall be made for an application withdrawn more than 30 days after the date of submittal.

(6) No fee reductions shall be allowed for modifications to an application, made after an application is submitted to the Department, that result in a reduced construction value.

(7) The Department may assess such additional fees as it determines necessary to cover increased construction value resulting from modifications to a proposed project made after the application is submitted to the Department. In assessing such additional fees, the Department shall be governed by the provisions of sections (1) through (4) of this rule.

Stat. Auth.: ORS 390.124
Stats. Implemented: ORS 390.605 - ORS 390.770 & ORS 390.990 - ORS 390.995
Hist.: PRD 7-2000, f. & cert. ef. 5-10-00

736-020-0005

Factors Evaluated

(1) Each site on the ocean shore presents different conditions and applicants have varying project needs. Evaluations point up the relative significance of the general, scenic, recreational, safety, and other interests of the public. In acting on any application for an ocean shore permit under ORS 390.640, 390.715 or 390.725, the Department shall consider:

(a) Provisions necessary to protect the affected area from any use, activity or practice that is not in keeping with the conservation of natural resources or public recreation;

(b) The public need for healthful, safe, esthetic surroundings and conditions; the natural, scenic, recreational, economic and other resources of the area and the present and prospective need for conservation and development of those resources;

(c) The physical characteristics or the changes in the physical characteristics of the area, and the suitability of the area for particular uses and improvements (This may include bank alignments, topography, shoreline materials and stability, width of the beach, past erosion, storm water levels, sand movement, water currents, adjoining structures, beach access, land uses, etc.);

(d) The land uses, including public recreational use; the improvements in the area; the trends in land uses and improvements; the density of development; and the need for access to particular sites in the area.

(e) The need for recreation and other facilities and enterprises in the future development of the area and the need for access to particular sites in the area.

(2) Public opinion in response to public notice or hearings on an application shall be considered in evaluating each proposed ocean shore project.

(3) Considered together, and in accordance with the intent of the Legislature, the factors listed in sections (1) and (2) of this rule assist in the overall decision for granting, an ocean shore permit, or denying, or modifying the ocean shore permit application when the level of impact is determined to be unacceptable.

Stat. Auth.: ORS 390.124
Stats. Implemented: ORS 390.605 -- ORS 390.770 & ORS 390.990 - ORS 390.995
Hist.: HC 1221, f. 4-21-70; 1 OTC 6-1978, f. & ef. 4-5-78; PRD 6-1999(Temp), f. & cert. ef. 11-10-99 thru 5-8-00; PRD 7-2000, f. & cert. ef. 5-10-00

736-020-0010

General Standards

The following general standards shall be applied, where applicable, to each application for an ocean shore permit:

(1) Project Need -- There shall be adequate justification for the project to occur on and alter the ocean shore area.

(2) Protection of Public Rights -- Public ownership of or use easement rights on the ocean shore shall be adequately protected.

(3) Public Laws -- The applicant shall comply with federal, state, and local laws and regulations affecting the project.

(4) Alterations and Project Modifications -- There are no reasonable alternatives to the proposed activity or project modifications that would better protect the public rights, reduce or eliminate the detrimental affects on the ocean shore, or avoid long-term cost to the public.

(5) Public Costs -- There are no reasonable special measures which might reduce or eliminate significant public costs. Prior to submission of the application, the applicant shall consider alternatives such as nonstructural solutions, provision for ultimate removal responsibility for structures when no longer needed, reclamation of excavation pits, mitigation of project damages to public interests, or a time limit on project life to allow for changes in public interest.

(6) Compliance with LCDC Goals -- The proposed project shall be evaluated against the applicable criteria included within Statewide Land Conservation and Development Goals #5: Natural Resources, Scenic and Historic Areas, and Open Spaces, #17: Coastal Shorelands, #18: Beaches and Dunes, and #19: Ocean Resources, and other appropriate statewide planning goals. In accordance with the Statewide Land Conservation and Development Commission Goal #18, permit applications for beachfront protective structures on the ocean shore shall be considered only where development existed on January 1, 1977. The project shall be consistent with local comprehensive plans where such plans have been approved by LCDC. When the application is for a pipeline, cable line or conduit under ORS 390.715, the project shall be consistent with Statewide Planning Goal #19, Ocean Resources, and applicable requirements of the Oregon Territorial Sea Plan.

Stat. Auth.: ORS 184 & ORS 390.124
Stats. Implemented: ORS 390.605 - ORS 390.770 & ORS 390.990 - ORS 390.995
Hist.: HC 1221, f. 4-21-70; 1 OTC 6-1978, f. & ef. 4-5-78; PR 12-1984, f. & ef. 12-12-84

736-020-0015

Scenic Standards

Projects on the ocean shore shall be designed to minimize damage to the scenic attraction of the ocean shore area. The following scenic standards shall be applied, where applicable, to each application for an ocean shore permit.

(1) Natural Features -- The project shall retain the scenic attraction of key natural features, for example, beaches, headlands, cliffs, sea stacks, streams, tide pools, bedrock formations, fossil beds and ancient forest remains.

(2) Shoreline Vegetation -- The project shall retain or restore existing vegetation on the ocean shore when vital to scenic values.

(3) View Obstruction -- The project shall avoid or minimize obstruction of existing views of the ocean and beaches from adjacent properties.

(4) Compatibility with Surroundings -- The project shall blend in with the existing shoreline scenery (type of construction, color, etc.).

Stat. Auth.: ORS 390.124
Stats. Implemented: ORS 390.605 -- ORS 390.770 & ORS 390.990 - ORS 390.995
Hist.: HC 1221, f. 4-21-70; 1 OTC 6-1978, f. & ef. 4-5-78; PRD 7-2000, f. & cert. ef. 5-10-00

736-020-0020

Recreation Use Standards

The following recreation use standards shall be applied, where applicable, to each application for an ocean shore permit.

(1) Recreation Use -- The project shall not be a detriment to public recreation use opportunities within the ocean shore area except in those cases where it is determined necessary or legally required to protect sensitive biological resources such as state or federally listed species.

(2) Recreation Access -- The project shall avoid blocking off or obstructing public access routes within the ocean shore area except in those cases where it is determined necessary or legally required to protect sensitive biological resources such as state or federally listed species.

Stat. Auth.: ORS 390.124
Stats. Implemented: ORS 390.605 - ORS 390.770 & ORS 390.990 - ORS 390.995
Hist.: HC 1221, f. 4-21-70; 1 OTC 6-1978, f. & ef. 4-5-78; PRD 7-2000, f. & cert. ef. 5-10-00

736-020-0025

Safety Standards

The project shall be designed to avoid or minimize safety hazards to the public and shoreline properties. The following safety standards shall be applied, where applicable, to each application for an ocean shore permit.

(1) Structural Safety -- The project shall not be a safety hazard to the public due to inadequate structural foundations, lack of bank stability, or the use of weak materials subject to rapid ocean damage.

(2) Obstructional Hazards -- The project shall minimize obstructions to pedestrians or vehicles going onto or along the ocean shore area.

(3) Neighboring Properties -- The project shall be designed to avoid or minimize ocean erosion or safety problems for neighboring properties.

(4) Property Protection -- Beachfront property protection projects shall be designed to accomplish a reasonable degree of increased safety for the on-shore property to be protected.

Stat. Auth.: ORS 390.124
Stats. Implemented: ORS 390.605 - ORS 390.770 & ORS 390.990 - ORS 390.995
Hist.: HC 1221, f. 4-21-70; 1 OTC 6-1978, f. & ef. 4-5-78; PRD 7-2000, f. & cert. ef. 5-10-00

736-020-0030

Natural and Cultural Resource Standards

(1) Projects on the ocean shore shall avoid or minimize damage to the following natural resources, habitat, or ocean shore conditions, and where applicable, shall not violate state standards:

(a) Fish and wildlife resources including rare, threatened or endangered species and fish and wildlife habitats.

(b) Estuarine values and navigation interests.

(c) Historic, cultural and archeological sites.

(d) Natural areas (vegetation or aquatic features).

(e) Air and water quality of the ocean shore area.

(f) Areas of geologic interest, fossil beds, ancient forest remnants.

(2) When necessary to protect native plant communities or fish and wildlife habitat on the subject or adjacent properties, only native, non-invasive, plant species shall be used for revegetation.

Stat. Auth.: ORS 390.124
Stats. Implemented: ORS 390.605 - ORS 390.770 & ORS 390.990 - ORS 390.995
Hist.: HC 1221, f. 4-21-70; 1 OTC 6-1978, f. & ef. 4-5-78; PRD 7-2000, f. & cert. ef. 5-10-00

736-020-0032

Permit Conditions

(1) All permits issued under these Division 20 rules may be conditioned to avoid, minimize or mitigate impact to the ocean shore, assure public safety, preserve the natural, scenic, recreational and economic values of the ocean shore and require the applicant to comply with the rules of other federal, state, and local agencies with jurisdiction over the permitted activity.

(2) The following conditions shall apply to any permit for a project authorized by the Department under ORS 390.640, 390.715, or 390.725.

(a) Permittee shall agree to save and hold harmless the State of Oregon, the Commission, and its members, and all officers, agents and employees of the Department, from any claim, suit or action whatsoever for damages to property, or injury or death to any person or persons due to negligence of permittee, its or their officers, agents or employees, and arising out of the performance of any work or project covered by the granting of a permit.

(b) In no event shall the issuance of any permit hereunder be construed as a sale, lease, granting of easement or any form of conveyance of the state recreational area, ocean shore or submerged lands.

(c) As a condition to the granting of a permit hereunder, the Department may, in its discretion, require the permittee to provide a cash or performance bond in an amount sufficient to assure full compliance with the terms of the permit.

(d) The duration of any permit granted hereunder shall be solely within the discretion of the Department. The Director may revoke, suspend or not renew an ocean shore 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.

(e) The permittee shall comply with the provisions of ORS 390.235 through 390.240, ORS 358.905 through 358.955, and OAR 736-051-0060 through 736-051-0090 as these statutes and other statutes and rules affect the discovery, excavation, salvage, removal and disposition of archaeological resources and the permitting requirements for these activities as they affect archaeological sites on public and private land.

(f) If, during the period covered by any permit, the permittee shall fail to comply with the conditions provided herein and otherwise imposed by the Department, the Department shall exercise its authority under Oregon Laws 1999, Chapter 373, and the provisions of OAR 736- 020-0100 to cease any further activity by the permittee on the ocean shore except as directed by the Department. In such circumstances, the Department may assess a civil penalty according to the provisions of OAR 736-080-0005 through 736-080-0070.

(3) In addition to the permit conditions listed in sections (1) and (2) of this rule, for any permit issued under ORS 390.640, the permittee shall file with the county clerk in the county where the permit applies, a Memorandum of Permit Issued, to be attached to the deed for the property where the permit applies. The permittee shall pay any and all filing and recording costs and shall supply to the Director a copy of the recorded instrument as proof of compliance with this permit condition.

(4) In addition to the permit conditions listed in sections (1) and (2) of this rule, the following conditions shall also apply to permits for projects authorized by the Department under ORS 390.715.

(a) If at any time subsequent to the installation of a pipeline, cable or conduit, the physical characteristics of the state recreation area, ocean shore or submerged lands shall change, whether due to natural or other causes, and by reason thereof the location of such pipeline, cable or conduit shall constitute a hazard to the public or is thereby detrimental to the preservation of the economic, scenic, and recreational value of the ocean shore, the permittee shall, at the request of the Department, make such changes in the location and installation thereof as will eliminate such hazard or detrimental condition. In any event, no permit shall be granted for the construction and installation of any pipeline, cable line, or other conduit, less than 2-1/2 feet below the lowest known surface elevation of the ocean shore, state recreational areas, or submerged lands.

(b) The Department may, where it deems necessary, require the permittee to agree to protect the state from any damages which might result from leaks, breaks or other malfunctions of the subject pipeline, cable or conduit.

(c) The permittee shall submit "as built" drawings following the completion of any pipeline, cable line, or conduit constructed on the ocean shore.

(d) The permittee shall notify the Department in writing at such time as any pipeline, cable line, conduit, or any portion of any pipeline, cable line or conduit authorized by an ocean shore permit and belonging to the permittee shall be sold or otherwise transferred to another party.

Stat. Auth.: ORS 183.545, ORS 184, ORS 390.605 et seq. & ORS 390.124
Stats. Implemented: ORS 390.605 - ORS 390.770 & ORS 390.990 - ORS 390.995
Hist.: PR 12-1984, f. & ef. 12-12-84; PR 8-1992, f. & cert. ef. 11-12-92; PRD 7-2000, f. & cert. ef. 5-10-00

Governing the Removal of Sand, Rock, Minerals, and Marine Growth or Other Natural Products of the Ocean Shore
736-020-0035

Natural Product Removal from the Ocean Shore: Exceptions, Compensation

(1) In accordance with ORS 390.725, natural products of the ocean shore, such as agates, small amounts of marine algae, driftwood or souvenirs of the ocean shore, may be taken by any person, for their own, noncommercial use, from the State recreation areas as described by ORS 390.635, without a permit, except that no person shall collect any amount of natural product of the ocean shore where prohibited by state or federal regulation or right of private ownership.

(2) Each natural product removal permit issued by the Department shall specify an amount and/or form of just compensation to be paid by the permittee. At the Department's discretion, just compensation may be comprised of any combination of the following:

(a) A flat fee ;

(b) A flat fee plus reporting requirements as specified by the Department;

(c) A percentage, not to exceed three percent, of the applicant's gross revenues resulting from the sale of the ocean shore product;

(d) A fee rate per measure, such as weight or volume, not to exceed three percent of the applicant's gross revenues resulting from the sale of the ocean shore product;

(e) Administrative costs to the State of processing the application, issuing the permit, and monitoring the project for permit compliance.

(3) At its discretion, the Department may schedule payment of just compensation over the life of the permit to reflect changing market values, variations in the volume of natural product removal and the availability of the natural product being harvested. Failure of the permittee to make any scheduled payment of just compensation shall be cause for the Department to revoke the permit.

(4) Just compensation payments made under section (2) of this rule are subject to ORS 273.105(2). In accordance with this statute, just compensation payments in excess of the Department's administrative costs of reviewing and processing the application, issuing and administering the permit, and monitoring the project, shall be deposited into the Common School Fund as provided by ORS 273.105(2).

Stat. Auth.: ORS 183.545, ORS 189, ORS 390.605 et seq. & ORS 390.124
Stats. Implemented: ORS 390.605 - ORS 390.770 & ORS 390.990 - ORS 390.995
Hist.: 1 OTC 1215, f. 2-10-1970; PR 11-1984, f. & ef. 12-12-84; PR 8-1992, f. & cert. ef. 11-12-92; PRD 7-2000, f. & cert. ef. 5-10-00

Issuance of Permits to Place Pipelines, Cable
Lines or Other Conduits Under the Ocean Shore
736-020-0040

Pipelines or Conduits Under Ocean Shore: Policy, Compensation

(1) Pursuant to ORS 390.610(4), it is the policy of the Department to prohibit the use of the ocean shore as a north-south utility, communication, transshipment or conveyance corridor. This prohibition applies to pipelines, conduits, cables, wires, towers, transmission, relay or booster stations and other continuous or intermittent facilities for moving material or services, or transmitting data, information, energy, or other commodity whether for private or public use or benefit. The Department, in its discretion, may make exceptions to this policy in cases of emergency or when need is demonstrated for the project to occur on and alter the ocean shore. Need is demonstrated when practicable alternatives are not available. Benefit to the citizens of Oregon, as a whole, shall be a primary consideration in any decision by the Department to grant an exception to this policy. Cost shall not be the sole reason that an alternative is determined to be not available. For purposes of this section:

(a) North-south means a geographic orientation along the beach, or in a heading roughly parallel to the ocean, despite localized direction changes, or longitudinally along the beach as opposed to laterally across the beach from surf to land. The intent of the term north-south does not imply an order of travel, transmission or conveyance and is interchangable with south-north for the purposes of this rule.

(b) Available means any one, or combination, of the following:

(A) The technology, expertise, and equipment exist and are available in the market place, to engineer, design and install a comparable facility in an upland site;

(B) The same, a similar, or comparable facility, has been successfully constructed elsewhere in a non-ocean shore environment;

(C) Per unit costs of an alternative are reasonably comparable with the range of per unit costs of similar facilities constructed in comparable environments elsewhere.

(2) Nothing in section (1) of this rule shall prevent the maintenance, repair or replacement of pipelines, cable lines, conduits or other utility corridor facility legally permitted on the ocean shore as of the effective date of this rule.

(3) For the purpose of this rule, streets, roads and highways are not considered utility corridors.

(4) Any applicant seeking an exception to the policy in section (1) of this rule shall be governed by the provisions of OAR 736-020-0001 through 736-020-0032 and OAR 736-020-0040 through 736-020-0120.

(5) Prior to the issuance of any permit under these rules and regulations, the Department shall receive from the prospective permittee, payment of just compensation for the use of the ocean shore. The amount of just compensation shall be at the discretion of the Department. Factors the Department may consider in setting the amount of just compensation may include:

(a) The length and width of the ocean shore occupied by the proposed pipeline, cable or conduit crossing;

(b) Any surface manifestations of the pipeline, cable or conduit crossing on the ocean shore;

(c) Potential impacts to unusual or scenic land forms;

(d) Potential impacts to fish and wildlife and their habitats;

(e) Potential impacts to recreation use or access to the ocean shore or to public recreation facilities adjacent to the ocean shore that may be affected by the pipeline, cable or conduit crossing;

(f) The safety features and practices to be employed by the applicant during construction, through out the life of the facility, and in the event of a break, rupture, exposure or other hazardous circumstance;

(g) Benefits that will accrue to the public from the proposed project such as sewer, gas, or electric service, phone or other communication service, or beach access mitigation;

(h) Benefits that accrue to private individuals, companies, organizations or corporations from the proposed project; and

(i) Administrative costs to the State of processing the application, issuing the permit, and monitoring the project for permit compliance.

(6) In no case shall just compensation be less than the Department's administrative costs as calculated under the fee provisions in OAR 736-020-0004.

(7) Just compensation payments made under section (2) of this rule are subject to ORS 273.105(2). In accordance with this statute, just compensation payments in excess of the Department's administrative costs of reviewing and processing the application, issuing and administering the permit, and monitoring the project, shall be deposited into the Common School Fund as provided by ORS 273.105(2).

Stat. Auth.: ORS 183.545, ORS 189, ORS 390.605 et seq. & ORS 390.124
Stats. Implemented: ORS 390.605 - ORS 390.770 & ORS 390.990 - ORS 390.995
Hist.: 1 OTC 1215, f. 2-10-70; PR 11-1984, f. & ef. 12-12-84; PR 8-1992, f. & cert. ef. 11-12-92; PRD 7-2000, f. & cert. ef. 5-10-00

736-020-0050

Eligibility for Emergency Permit

(1) In accordance with ORS 390.650(6), an emergency permit for a new improvement or alteration may be issued, unless otherwise prohibited by law, to provide immediate and temporary protection where property is in imminent peril of being destroyed or damaged by action of the Pacific Ocean or waters of a bay or river, landslide, or other natural disaster. Said permit may be granted by the Department prior to the Ocean Shore Improvement Permit process required under ORS 390.650(1), (2), (3), (4), and (5).

(2) "Property" shall be defined as an upland building, road, street, highway, sewer or water line, or other infrastructure improvement.

(3) "Imminent Peril" shall be defined as a situation in which property is likely to be severely damaged or destroyed by action of the Pacific Ocean or waters of a bay or river, or by landslide or other natural disaster, and where such damage would be likely to occur prior to the time required for approval of an Ocean Shore Improvement Permit.

Stat. Auth.: ORS 390.124
Stats. Implemented: ORS 390.124
Hist.: PRD 12-1998, f. & cert. ef. 12-2-98; PRD 7-2000, f. & cert. ef. 5-10-00

736-020-0060

Review and Issuance of Emergency Permit

(1) Upon inspection of the site by a Department employee or authorized representative of the Department, an emergency permit may be issued, written or oral, by an employee specifically designated by the Director to issue an Ocean Shore Permit. Any emergency permit granted orally shall be reduced to writing by the Department within 10 days. An emergency permit shall name the property owner of record and the applicant, if other than the property owner, and list required conditions.

(2) In accordance with Statewide Planning Goal #18, Beaches and Dunes, emergency permits for beachfront protective structures may be issued only where development existed on January 1, 1977, or where an exception to this Goal 18 implementation requirement has been approved by the appropriate local jurisdiction.

(3) Prior to issuance of an emergency permit, the Department shall contact the local government to describe the proposed emergency measures and obtain certification that the proposed measures are in compliance with the local comprehensive plan and zoning ordinances. When local government cannot be reached due to the time of day, day of week, or failed communications systems, the Department may issue an emergency permit without local certification of compliance with the local comprehensive plan and zoning ordinances. In such cases, the Department shall advise the permittee that the Department's emergency permit is provisional and may be rescinded if the proposed emergency measures are determined to be not in compliance with the local comprehensive plan and zoning ordinances. The applicant shall be responsible for obtaining any required permits from the local government. The emergency permit issued by the Department shall not be considered valid until all local permits have been obtained.

(4) Prior to issuance of an emergency permit, the Department shall request recommendations from the Oregon Department of Fish and Wildlife on minimizing adverse impacts to wildlife or habitat values, and the Oregon Department of Geology and Mineral Industries, for information on geologic hazards.

(5) Upon issuance of an emergency permit, the Department shall provide notice to the local government, the Department of Land Conservation and Development, the Division of State Lands, Oregon Department of Fish and Wildlife, and the Oregon Department of Geology and Mineral Industries.

Stat. Auth.: ORS 390.124
Stats. Implemented: ORS 390.605 - ORS 390.770 & ORS 390.990 - ORS 390.995
Hist.: PRD 12-1998, f. & cert. ef. 12-2-98; PRD 7-2000, f. & cert. ef. 5-10-00

736-020-0070

Terms and Conditions of Permit

(1) Under an emergency permit authorization, material placed on the ocean shore, other than beach sand moved for watercourse alterations, shall be considered temporary and shall be removed within a time specified by the Department, except as specified in section (3) of this rule. At the time of removal, the permittee shall be responsible for restoring to as natural a condition as possible, as determined by the Department, the natural resource, scenic and recreational values of the ocean shore.

(2) The Department may impose conditions on the project size, design, and materials used in order to meet the objectives of the Permit Standards of ORS 390.655 and Beach Construction/Alternation Standards of OAR 736-020-0005 through OAR 736-020-0030.

(3) The permittee shall apply for an ocean shore permit, as specified in ORS 390.650, in order to seek approval to convert the temporary project approved under an emergency permit into a permanent ocean shore alteration. If a permanent permit is not applied for and approved by the Department, then all material placed on the ocean shore shall be removed and the condition of the ocean shore restored, in compliance with the conditions of the emergency permit.

(4) At the Department's discretion, the Department may require a cash bond, or other security acceptable to the Department, to ensure that the permittee complies with the terms of the permit, including removal of material. Failure of the permittee to comply with the terms and conditions of the permit shall authorize the Department, without further notice, to conduct the work necessary to complete the required terms and conditions and deduct any and all costs and expenses for the work.

(5) The Department shall deduct from the cash bond or other security, all legal costs associated with the emergency permit, including, but not limited to, enforcement of permit conditions, and acquisition of funds from the cash bond or other security. The Department shall pursue all available legal or judicial alternatives to recover costs incurred by the public resulting from non-compliance with the terms and conditions of any emergency permit.

Stat. Auth.: ORS 390.124
Stats. Implemented: ORS 390.124
Hist.: PRD 12-1998, f. & cert. ef. 12-2-98; PRD 7-2000, f. & cert. ef. 5-10-00

736-020-0100

Powers of Enforcement

Any improvement, addition, modification or alteration made on the ocean shore, or any pipeline, cable line or conduit constructed across or under the ocean shore, or any natural product removed from the ocean shore for commercial use without a permit issued under ORS 390.650, or performed in a manner contrary to, or not in compliance with, the terms and conditions of a permit issued under ORS 390.650, or performed in a manner contrary to, or not in compliance with, ocean shore standards or rules or an order of the Director, shall be subject to enforcement action under this rule and/or the imposition of a civil penalty under OAR 736-080-0005 to 736- 080-0070. The Director may use one, or any combination of the following actions, as appropriate, to protect and preserve the ocean shore:

(1) Investigation -- on the Director's own initiative, or in response to reports or complaints from other persons or agencies, the Director may investigate improvements, additions, modifications or alterations on the ocean shore, pipelines, cables and conduits constructed across or under the ocean shore or the removal of natural products from the ocean shore for compliance with statutes, rules, standards permits and orders pertaining to these developments and activities. In conducting such investigations, the Director, or his duly authorized staff or agents, may enter upon lands within the ocean shore, including private property within the ocean shore, at such times as are reasonable to detect, evaluate and document the ocean shore violation. The Director, or his duly authorized staff or agents, shall not enter upon private property landward of the ocean shore without the property owner's permission. When landowner permission is not forthcoming and access through the property landward of the ocean shore is necessary to investigate, assess and prescribe remedies for suspected or known ocean shore violations, the Director, his staff or agents, may enter such property when accompanied by appropriate law officers bearing a court issued search warrant or other appropriate authorization;

(2) Public Hearings -- the Director may schedule and conduct hearings to gather evidence and other information related to an ocean shore violation; (continued)