Loading (50 kb)...'
(continued)
(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 196.840 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 free-flowing 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 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) 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 196.840 to 196.870 or rules adopted pursuant to ORS 196.800 to 196.825 and 196.840 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) 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) “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.
Note: Sections 3 and 4, chapter 499, Oregon Laws 2001, provide:
Sec. 3. In order to make recommendations to better achieve the objectives and enhance the effectiveness of the Oregon Scenic Waterways System, the State Parks and Recreation Department shall complete a review of the system administered under ORS 390.805 to 390.925, including a review of the studies pertaining to the effects of recreational placer mining within scenic waterways. At the request of the State Parks and Recreation Department, the Department of State Lands, the Water Resources Department, the State Department of Fish and Wildlife, the State Marine Board and the Department of Environmental Quality shall assist in the review. The State Parks and Recreation Department may also request interested public parties to assist in the review. [2001 c.499 §3]
Sec. 4. Notwithstanding ORS 390.835, a permit or temporary permit for dredging issued by the Department of State Lands for the purpose of recreational placer mining within a scenic waterway is not valid after December 31, 2003, if the review described in section 3 of this 2001 Act has been completed and reported to the Seventy-second Legislative Assembly or, if the review has not been completed and reported to the Seventy-second Legislative Assembly, after December 31, 2005. [2001 c.499 §4]
390.845 Administration of scenic waterways and related adjacent lands; limitations on use; condemnation; rules. (1) Except as provided in ORS 390.835, scenic waterways shall be administered by the State Parks and Recreation Department, each in such manner as to protect and enhance the values which caused such scenic waterway to be included in the system. In such administration primary emphasis shall be given to protecting the esthetic, scenic, fish and wildlife, scientific and recreation features, based on the special attributes of each area.
(2) After consultation with the State Board of Forestry, the State Department of Agriculture and the affected counties and with the concurrence of the Water Resources Commission, the department shall adopt rules governing the management of related adjacent land. Such rules shall be adopted in accordance with ORS chapter 183. Such rules shall reflect management principles, standards and plans applicable to scenic waterways, their shore lines and related adjacent land and, if necessary, establish varying intensities of protection or development based on special attributes of each area. Such management principles, standards and plans shall protect or enhance the esthetic and scenic values of the scenic waterways and permit compatible agricultural, forestry and other land uses. Specifically, and not in limitation of the foregoing, such rules shall provide that:
(a) No roads, railroads or utilities shall be constructed within any scenic waterway except where necessary to serve the permissible uses, as defined in subsection (2) of this section and in the rules of the department, of the related adjacent land or unless department approval of such use is obtained as provided in subsection (4) or (5) of this section. The department wherever practicable shall require the sharing of land and air space by such roads, railroads and utilities. All permissible roads, railroads and utilities shall be located in such a manner as to minimize the disturbance of the natural beauty of a scenic waterway;
(b) Forest crops shall be harvested in such manner as to maintain as nearly as reasonably is practicable the natural beauty of the scenic waterway;
(c) Occupants of related adjacent land shall avoid pollution of waters within a scenic waterway;
(d) The surface of related adjacent land shall not be disturbed for prospecting or mining unless the department’s approval is obtained under subsection (4) or (5) of this section; and
(e) Unless department approval of the proposed use is obtained under subsection (4) or (5) of this section, no commercial, business or industrial structures or buildings other than structures or buildings erected in connection with an existing use shall be erected or placed on related adjacent land. All structures and buildings erected or placed on such land shall be in harmony with the natural beauty of the scenic waterway and shall be placed a sufficient distance from other structures or buildings so as not to impair substantially such natural beauty. No signs or other forms of outdoor advertising that are visible from waters within a scenic waterway shall be constructed or maintained.
(3) No person shall put related adjacent land to uses that violate ORS 390.805 to 390.925 or the rules of the department adopted under ORS 390.805 to 390.925 or to uses to which the land was not being put before December 3, 1970, or engage in the cutting of trees, or mining, or prospecting on such lands or construct roads, railroads, utilities, buildings or other structures on such lands, unless the owner of the land has given to the department written notice of such proposed use at least one year prior thereto and has submitted to the department with the notice a specific and detailed description of such proposed use or has entered into agreement for such use with the department under subsection (5) of this section. The owner may, however, act in emergencies without the notice required by ORS 390.805 to 390.925 when necessary in the interests of public safety.
(4) Upon receipt of the written notice provided in subsection (3) of this section, the department shall first determine whether in its judgment the proposed use would impair substantially the natural beauty of a scenic waterway. If the department determines that the proposal, if put into effect, would not impair substantially the natural beauty of the scenic waterway, the department shall notify in writing the owner of the related adjacent land that the owner may immediately proceed with the proposed use as described to the department. If the department determines that the proposal, if put into effect, would impair substantially the natural beauty of the scenic waterway, the department shall notify in writing the owner of the related adjacent land of such determination and no steps shall be taken to carry out such proposal until at least one year after the original notice to the department. During such period:
(a) The department and the owner of the land involved may agree upon modifications or alterations of the proposal so that implementation thereof would not in the judgment of the department impair substantially the natural beauty of the scenic waterway; or
(b) The department may acquire by purchase, gift or exchange, the land involved or interests therein, including scenic easements, for the purpose of preserving the natural beauty of the scenic waterway.
(5) The department, upon written request from an owner of related adjacent land, shall enter into negotiations and endeavor to reach agreement with such owner establishing for the use of such land a plan that would not impair substantially the natural beauty of the scenic waterway. At the time of such request for negotiations, the owner may submit a plan in writing setting forth in detail proposed uses. Three months after the owner makes such a request for negotiations with respect to use of land, either the department or the owner may give written notice that the negotiations are terminated without agreement. Nine months after the notice of termination of negotiations the owner may use land in conformity with any specific written plan submitted by the owner prior to or during negotiations. In the event the department and the owner reach agreement establishing a plan for land use, such agreement is terminable upon at least one year’s written notice by either the department or the owner.
(6) With the concurrence of the Water Resources Commission, the department may institute condemnation proceedings and by condemnation acquire related adjacent land:
(a) At any time subsequent to nine months after the receipt of notice of a proposal for the use of such land that the department determines would, if carried out, impair substantially the natural beauty of a scenic waterway unless the department and the owner of such land have entered into an agreement as contemplated by subsection (4) or (5) of this section or the owner shall have notified the department of the abandonment of such proposal; or
(b) At any time related adjacent land is used in a manner violating ORS 390.805 to 390.925, the rules of the department or any agreement entered into by the department pursuant to subsection (4) or (5) of this section; or
(c) At any time related adjacent land is used in a manner which, in the judgment of the department, impairs substantially the natural beauty of a scenic waterway, if the department has not been given at least one year’s advance written notice of such use and if there is not in effect department approval of such use pursuant to subsection (4) or (5) of this section.
(7) In such condemnation the owner of the land shall not receive any award for the value of any structure, utility, road or other improvement constructed or erected upon the land after December 3, 1970, unless the department has received written notice of such proposed structure, utility, road or other improvement at least one year prior to commencement of construction or erection of such structure, utility, road or other improvement or unless the department has given approval for such improvement under subsection (4) or (5) of this section. If the person owned the land on December 3, 1970, and for a continuous period of not less than two years immediately prior thereto, the person shall receive no less for the land than its value on December 3, 1970. The department shall not acquire by condemnation a scenic easement in land. When the department acquires any related adjacent land that is located between a lake or river and other land that is owned by a person having the right to the beneficial use of waters in the river by virtue of ownership of the other land:
(a) The right to the beneficial use of such waters shall not be affected by such condemnation; and
(b) The owner of the other land shall retain a right of access to the lake or river necessary to use, store or divert such waters as the owner has a right to use, consistent with concurrent use of the land so condemned as a part of the Oregon Scenic Waterways System.
(8) Any owner of related adjacent land, upon written request to the department, shall be provided copies of rules then in effect or thereafter adopted by the department pursuant to ORS 390.805 to 390.925.
(9) The department shall furnish to any member of the public upon written request and at expense of the member a copy of any notice filed pursuant to subsection (3) of this section.
(10) If a scenic waterway contains lands or interests therein owned by or under the jurisdiction of an Indian tribe, the United States, another state agency or local governmental agency, the department may enter into agreement with the tribe or the federal, state or local agency for the administration of such lands or interests therein in furtherance of the purposes of ORS 390.805 to 390.925. [1971 c.1 §5; 1971 c.459 §1; 1973 c.756 §2; 1981 c.236 §3; 1983 c.334 §4]
390.848 Passes for use of parts of Deschutes River; rules; fee; exemption from fee; disposition of moneys. (1) The State Parks and Recreation Department shall establish, by rule, a system for issuing passes necessary to comply with the requirements under ORS 390.851. The department shall establish a reasonable fee for issuance of a pass under this section. The department may establish any form of proof of payment of the user fees that it deems appropriate.
(2) The system for issuance of passes established by the department under this section may include issuance of the passes by governmental entities or private persons who have entered into appropriate agreements with the department for issuance of the passes. Agreements under this subsection may include, but are not limited to, terms providing for locations for the collection of fees, methods the department determines appropriate to assure payment of moneys collected and provisions for the distribution of river-user information.
(3) The department shall issue, without charge, annual passes to comply with the requirements under ORS 390.851 to persons who own ranch, farm or residential property immediately abutting those portions of the Deschutes River designated as scenic waterways under ORS 390.826 and to members of the immediate family of such persons. This subsection does not authorize the issuance without charge of passes to persons holding less than a majority interest in a firm, corporation or cooperative organization which owns land immediately abutting the Deschutes River designated as scenic waterways under ORS 390.826.
(4) Moneys collected under this section shall be deposited in the separate fund established for the State Parks and Recreation Department under ORS 366.512 and, subject to the limitations under subsection (5) of this section, are continually appropriated to that department to be used:
(a) For operation of the pass system established under this section;
(b) For providing river-user oriented law enforcement services;
(c) For providing river recreation information and education;
(d) For developing and maintaining river oriented recreation facilities; and
(e) For any other purposes the department considers appropriate for the maintenance, enhancement or protection of the natural and scenic beauty of the scenic waterway consistent with ORS 390.805 to 390.925.
(5) The use of moneys for purposes described under subsection (4) of this section is limited to the performance of those purposes for areas of the Deschutes River designated as scenic waterways under ORS 390.826. [1981 c.798 §2; 1985 c.606 §4; 1987 c.291 §2; 1987 c.624 §15]
390.851 Activities prohibited on parts of Deschutes River without pass; exceptions. (1) Unless the person has an appropriate pass issued under ORS 390.848, no person shall launch, operate or ride in any boat or engage in any camping, fishing or other activity in connection with being transported by a boat on those portions of the Deschutes River designated as scenic waterways under ORS 390.826.
(2) This section does not apply to:
(a) Peace officers, members or employees of a governmental body or their agents while engaged in the discharge of official duties; or
(b) Any member of the Confederated Tribes of the Warm Springs Indian Reservation.
(3) A person who violates this section commits a Class C violation. [1981 c.798 §3; 1987 c.291 §3; 1999 c.1051 §99]
390.855 Designation of additional scenic waterways. The State Parks and Recreation Department shall undertake a continuing study and submit periodic reports to the Governor, with the concurrence of the Water Resources Commission, recommending the designation of additional rivers or segments of rivers and related adjacent land by the Governor as scenic waterways subject to the provisions of ORS 390.805 to 390.925. Consistent with such recommendation, the Governor may designate any river or segment of a river and related adjacent land as a scenic waterway subject to the provisions of ORS 390.805 to 390.925. The department shall consult with the State Fish and Wildlife Commission, the State Department of Agriculture, the Environmental Quality Commission, the Department of State Lands, and such other persons or agencies as it considers appropriate. The State Parks and Recreation Department shall conduct hearings in the counties in which the proposed additional rivers or segments of rivers are located. The following criteria shall be considered in making such report:
(1) The river or segment of river is relatively free-flowing and the scene as viewed from the river and related adjacent land is pleasing, whether primitive or rural-pastoral, or these conditions are restorable.
(2) The river or segment of river and its setting possess natural and recreation values of outstanding quality.
(3) The river or segment of river and its setting are large enough to sustain substantial recreation use and to accommodate existing uses without undue impairment of the natural values of the resource or quality of the recreation experience. [1971 c.1 §6]
390.865 Authority of legislature over designation of additional scenic waterways. The designation of a river or segment of a river and related adjacent land, pursuant to ORS 390.855, shall not become effective until the day following the adjournment sine die of the regular session of the Legislative Assembly next following the date of the designation or that was in session when the designation was made. The Legislative Assembly by joint resolution may disapprove any such designation or a part thereof, and in that event the designation, or part thereof so disapproved, shall not become effective. [1971 c.1 §7]
390.875 Transfer of public lands in scenic waterways to department; administration of nontransferred lands. Any public land within or adjacent to a scenic waterway, with the consent of the governing body having jurisdiction thereof, may be transferred to the jurisdiction of the State Parks and Recreation Department with or without compensation. Any land so transferred shall become state recreational land and shall be administered as a part of the scenic waterway. Any such land within a scenic waterway which is not transferred to the jurisdiction of the department, to the fullest extent consistent with the purposes for which the land is held, shall be administered by the body having jurisdiction thereof in accordance with the provisions of ORS 390.805 to 390.925. [1971 c.1 §8]
390.885 Exchange of property within scenic waterway for property outside waterway. In acquiring related adjacent land by exchange, the State Parks and Recreation Department may accept title to any property within a scenic waterway, and in exchange therefor, may convey to the grantor of such property any property under its jurisdiction that the department is not otherwise restricted from exchanging. In so far as practicable, the properties so exchanged shall be of approximately equal fair market value. If they are not of approximately equal fair market value, the department may accept cash or property from, or pay cash or grant property to, the grantor in order to equalize the values of the properties exchanged. [1971 c.1 §9]
390.895 Use of federal funds. In addition to State of Oregon funds available for the purposes of ORS 390.805 to 390.925, the State Parks and Recreation Department shall use such portion of moneys made available to it by the Bureau of Outdoor Recreation and other federal agencies, including matching funds, as the department determines are necessary and available to carry out the purposes of ORS 390.805 to 390.925. [1971 c.1 §10]
390.905 Effect of ORS 390.805 to 390.925 on other state agencies. Nothing in ORS 390.805 to 390.925 affects the jurisdiction or responsibility of other state agencies with respect to boating, fishing, hunting, water pollution, health or fire control; except that such state agencies shall endeavor to perform their responsibilities in a manner consistent with the purposes of ORS 390.805 to 390.925. [1971 c.1 §11]
390.910 Intergovernmental cooperation; county representative on management advisory committee. In carrying out the provisions of ORS 390.805 to 390.925, the State Parks and Recreation Department may enter into intergovernmental agreements to form committees to advise the various governmental agencies involved regarding management of the scenic waterways. Each such agreement must provide for membership on the committee of a representative of one of the governing bodies of the counties through which the scenic waterway flows. The county representative shall be chosen by the Governor from among those individuals recommended to the Governor by the county governing bodies. [1981 c.236 §2]
390.915 Determination of value of scenic easement for tax purposes; easement exempt. For ad valorem tax purposes, real property that is subject to a scenic easement shall be valued at its real market value, less any reduction in value caused by the scenic easement, and assessed in accordance with ORS 308.232. The easement shall be exempt from assessment and taxation the same as any other property owned by the state. [1971 c.1 §12; 1981 c.804 §99; 1991 c.459 §394]
390.925 Enforcement. In addition to any other penalties provided by law for violation of ORS 390.805 to 390.925 or rules adopted thereunder, the State Parks and Recreation Department is vested with power to obtain injunctions and other appropriate relief against violations of any provisions of ORS 390.805 to 390.925 and any rules adopted under ORS 390.805 to 390.925 and agreements made under ORS 390.805 to 390.925. [1971 c.1 §13; 1981 c.798 §6]
DESCHUTES RIVER SCENIC WATERWAY RECREATION AREA
390.930 Definitions for ORS 390.930 to 390.940. As used in ORS 390.930 to 390.940:
(1) “Managing agencies” includes:
(a) State Parks and Recreation Department;
(b) State Department of Fish and Wildlife;
(c) Confederated Tribes of the Warm Springs Indian Reservation;
(d) State Marine Board;
(e) Sherman, Wasco and Jefferson Counties;
(f) Oregon State Police;
(g) United States Bureau of Land Management;
(h) United States Bureau of Indian Affairs; and
(i) The City of Maupin.
(2) “Recreation area” means the Deschutes River Scenic Waterway Recreation Area created under ORS 390.932. [1987 c.624 §§1,18; 1989 c.904 §26; 2001 c.104 §133]
390.932 Creation of Deschutes River Scenic Waterway Recreation Area. There is created the Deschutes River Scenic Waterway Recreation Area consisting of the segment of the Deschutes River scenic waterway under ORS 390.825 that is designated as the segment from immediately below the existing Pelton reregulating dam downstream approximately 100 miles to its confluence with the Columbia River, excluding the City of Maupin as its boundaries are constituted on October 4, 1977. [1987 c.624 §17]
390.934 Management of Deschutes River Scenic Waterway Recreation Area; plan; rules; budget. (1) The State Parks and Recreation Department shall have primary management responsibility for the State of Oregon to manage the Deschutes River Scenic Waterway Recreation Area. In managing the recreation area, the department shall cooperate with other managing agencies having jurisdiction to manage all or part of the recreational area.
(2) The department shall adopt a management plan by rule. The department shall implement the plan and shall prepare a budget for implementation taking into consideration the provisions of the management plan. [1987 c.624 §§3,19]
390.936 Rules. In accordance with applicable provisions of ORS chapter 183, the State Parks and Recreation Department shall adopt rules necessary to carry out those provisions of ORS 390.930 to 390.940 that the department is charged with administering. [1987 c.624 §§12,22]
390.938 Guidelines for management and development. The Deschutes River Scenic Waterway Recreation Area shall be managed and developed in accordance with the following guidelines:
(1) To the extent allowed under ORS 390.805 to 390.925, the recreational area shall be administered to allow continuance of compatible existing uses, while allowing a wide range of compatible river-oriented public outdoor recreation opportunities, to the extent that these do not impair substantially the natural beauty of the scenic waterway or diminish its esthetic, fish and wildlife, scientific and recreational values.
(2) The management plan shall stress a segment by segment design and shall include provisions for the development of appropriate facilities and services in the recreation area to meet resource needs for protection and preservation and user needs. This development may include but need not be limited to:
(a) River and car camp development;
(b) Sanitation stations for human waste and garbage;
(c) Parking and access road improvement;
(d) Signs indicating land ownership;
(e) Tree and riparian zone protection and restoration;
(f) Educational programs; and
(g) Initiation of additional volunteer programs.
(3) Before restricting access through the use of a permit system, all other management options shall be considered.
(4) Special emphasis shall be placed on protecting the recreation area and all adjacent property from recreationist-caused wildfires. This goal shall be equal in priority to the other primary goals set forth in this section. This protection shall include but not be limited to:
(a) Permanent adoption of a fire rule that provides the same protection as the fire rule in force during the 1986 fire season.
(b) Requiring boater passes to include the name of the group leader, date and section of river used.
(c) The establishment of information centers near major points of entry into the recreation area to provide users with information and education regarding the fire rules and general rules of the river.
(d) Conducting cadet patrols at the levels considered necessary to facilitate reasonable compliance with recreation area rules. [1987 c.624 §§4,20]
390.940 Relationship to other laws. The State Parks and Recreation Department and state and local managing agencies shall manage the Deschutes River Scenic Waterway Recreation Area according to the provisions of ORS 390.805 to 390.925 and 390.930 to 390.940 and rules adopted under ORS 390.805 to 390.925 and 390.930 to 390.940. Federal and tribal managing agencies with jurisdiction over their respective lands and waters shall be encouraged to manage their lands and waters in a manner consistent with the provisions of ORS 390.805 to 390.925 and 390.930 to 390.940. [1987 c.624 §§5,21]
RECREATION TRAILS
390.950 Short title. ORS 390.950 to 390.989 and 390.995 (2) may be cited as the Oregon Recreation Trails System Act. [1971 c.614 §1]
390.953 [1971 c.614 §2; 1989 c.904 §27; repealed by 2001 c.104 §134]
390.956 Policy. (1) In order to provide for the ever-increasing outdoor recreation needs of an expanding resident and tourist population and in order to promote public access to, travel within and enjoyment and appreciation of, the open-air, outdoor areas of Oregon, trails should be established both near the urban areas of this state and within, adjacent to or connecting highly scenic areas more remotely located.
(2) The purpose of ORS 390.950 to 390.989 and 390.995 (2) is to provide the means for attaining these objectives by instituting a system of recreation trails in this state, by designating certain trails as the initial components of that system, and by prescribing the methods of which, and standards according to which, additional components may be added to the system. [1971 c.614 §3]
390.959 Composition of trails system; establishment of markers. The system of Oregon recreation trails shall be composed of trails established as provided in ORS 390.962 and 390.965. The State Parks and Recreation Department, in consultation with appropriate federal, state and local governmental agencies and public and private organizations, shall establish a uniform marker for the system of Oregon recreation trails. [1971 c.614 §4]
390.962 Criteria for establishing trails; location; statutes authorizing trails for motorized vehicles unaffected. (1) Upon finding that such trails will meet the criteria established in ORS 390.950 to 390.989 and 390.995 (2) and such supplementary criteria as the State Parks and Recreation Department may prescribe, the department is encouraged and empowered to establish and designate Oregon recreation trails:
(a) Over lands owned by the State of Oregon, by the federal government or by any county, municipality or other local governmental body, with the consent of the state agency, federal agency, county, municipality or other local governmental body having jurisdiction over the lands involved; or
(b) Over lands owned by private persons, in the manner and subject to the limitations provided in ORS 390.950 to 390.989 and 390.995 (2).
(2) In establishing such trails, the department shall give special recognition to the need for the establishment of recreation trails in or near, or reasonably accessible to, urban areas. Upon the establishment of any such trail, the department shall designate the primary kind of trail it is to be, based upon the mode or modes of travel to be permitted on such trail, including one or more of the following:
(a) Footpath.
(b) Horseback riding trail.
(c) Bicycle path.
(3) Nothing in ORS 390.950 to 390.989 and 390.995 (2) affects any other statute authorizing trails for motorized vehicles which is not inconsistent with ORS 390.950 to 390.989 and 390.995 (2). [1971 c.614 §5]
390.965 Hearing required; information to be considered. (1) The State Parks and Recreation Department may establish trails after public meetings in the areas of the state where trails are planned and only in accordance with the following criteria:
(a) Emphasis shall be given to the development of trails across public lands.
(b) No trails shall cross private land occupied by a residential dwelling, or upon which a residential dwelling is under construction, within 300 feet of such residential dwelling, without the consent of the owner.
(c) Trails shall be selected to minimize the adverse effects on adjacent landowners or users and their operations.
(d) Development and management of trails shall be designed to harmonize with and complement any established forest, agricultural, or other use plan that is compatible with the purposes of ORS 390.950 to 390.989 and 390.995 (2).
(2) Before establishing a trail the department shall consider at a public meeting the following information:
(a) The proposed route of such trail (including maps and illustrations) and the recommended mode or modes of travel to be permitted thereon;
(b) The areas adjacent to such trails, to be utilized for scenic, historic, natural, cultural or developmental purposes;
(c) The characteristics that, in the judgment of the department, make the proposed trail suitable as an Oregon recreation trail;
(d) The current status of land ownership and current and potential use along the designated route;
(e) The estimated cost of acquisition of lands or interest in lands, if any;
(f) The plans for developing and maintaining the trail and the cost thereof;
(g) Any anticipated problems of policing the use of such trail and any anticipated hazards to the use of any privately owned lands adjacent to such trail; and
(h) The extent to which the state or its political subdivisions and public and private organizations might reasonably be expected to participate in acquiring the necessary lands and in the administration thereof. [1971 c.614 §6]
390.968 Selection of rights of way for trails. (1) The State Parks and Recreation Department shall select the rights of way for trails designated as Oregon Recreation Trails by ORS 390.962 (1)(a) and (b). Such rights of way shall be:
(a) Of sufficient width and so located as to protect natural conditions, scenic and historic features, and any primitive character of the trail area; to provide campsites, shelters, and related public-use facilities along trails in more remote areas; and to provide reasonable public access.
(b) Located to avoid, in so far as reasonably practicable, established highways, motor roads, mining areas, power transmission lines, existing commercial and industrial developments, range fences and improvements, private logging operations, and any other activities that would be incompatible with the protection of the trailside environment in its natural condition and the use of the trail for outdoor recreation.
(2) Notwithstanding subsection (1) of this section, it is recognized that in many instances (especially in urban areas and for some types of trails across or near private land) it may be advisable to locate segments of trails in or near existing rights of way for roads, highways, public utilities or telecommunications utilities, excluding power transmission lines; and it is recognized that trail rights of way on occasion may be located, or from time to time relocated, through, or adjacent to, lands used for private timber (including logging), agriculture, commercial or industrial operations and that such location or relocation of a trail right of way, of itself, shall not impose any limitation upon an otherwise lawful use of the adjacent private land except to the extent of the terms of any agreement with the private landowner as provided in ORS 390.971 (1) and except as may be provided by any zoning ordinance, law or regulation.
(3) The location and width of an Oregon recreation trail right of way across federal lands under the jurisdiction of a federal agency shall be by agreement between that agency and the department.
(4) In selecting a right of way, the department shall endeavor to obtain the advice and assistance of the local governments, private organizations, landowners, the land users concerned, and the advisory council established under ORS 390.977.
(5) The department shall hold a public hearing in the area of the state where the selection of such right of way is to be made. Subject to ORS 390.971, after public hearing, the department may revise the location and width of a right of way from time to time as required by circumstances, with the consent of the head of any federal agency involved, and with such advice and assistance of the local governments, private organizations, landowners, land users, and the advisory council, as the department considers necessary or advisable. [1971 c.614 §7; 1987 c.447 §124]
390.971 Department duties and powers; rules. (1) Within the exterior boundaries of areas under its administration that are included in the right of way selected for an Oregon recreation trail as provided in ORS 390.950 to 390.989 and 390.995 (2), the State Parks and Recreation Department may do any of the following:
(a) Enter into written cooperative agreements with landowners, federal agencies, other state agencies, local governments, private organizations and individuals in order to provide for the development, operation, maintenance, location and relocation of the trail. Where the trail crosses commercial forestland, such agreement shall make reasonable provision for temporary relocation reasonably required for commercial forest management.
(b) Subject to limitations set forth in ORS 390.950 to 390.989 and 390.995 (2), acquire lands or interests in lands by donation, purchase with donated or appropriated funds or exchange, or with funds obtained under ORS 390.980.
(2) The department, in the exercise of its exchange authority, may accept title to any nonstate-owned property within a trail right of way, and, in exchange therefor, the department may convey to the grantor of such property any state-owned property under its jurisdiction or the jurisdiction of any state agency consenting to such exchange that the department or the applicable consenting state agency classifies as suitable for exchange or other disposal. The values of the properties so exchanged either shall be approximately equal or, if they are not approximately equal, the values shall be equalized by the payment of cash to the grantor or to the department or applicable consenting state agency as the circumstances require.
(3) If lands included in an Oregon recreation trail right of way are outside the exterior boundaries of state or federally administered areas, the department shall attempt, and any local governments involved shall be encouraged, to enter into written cooperative agreements with landowners, local government, private organizations and individuals in order to develop, administer and maintain the trails and to acquire, develop and administer such lands or interests therein. However, if the department or local governments fail or are unable to enter into such agreements or to acquire such lands or interests therein within one year after the selection of the right of way, the department may acquire private lands or interests therein by donation, exchange or purchase with donated or appropriated funds and may develop and administer such lands or interests therein. Exchanges shall be governed by the provisions of subsection (2) of this section. (continued)