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OREGON ANTI ALL MINING BILL


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The anti mining cancer from the klamath has spread it's insideous tentacles yet ever outward into the very heart of every miners livlihood-ALL MINING--EVERYWHERE-ALL THE TIME-

LC 2125

2013 Regular Session

11/21/12 (DLT/ps)

D R A F T

SUMMARY

Prohibits placer mining using any form of motorized equipment or motorized

dredge. Punishes by maximum of one year’s imprisonment, $6,250 fine,

or both.

Declares emergency, effective on passage.

A BILL FOR AN ACT

Relating to placer mining; creating new provisions; amending ORS 196.910

and 390.835; and declaring an emergency.

Be It Enacted by the People of the State of Oregon:

SECTION 1. (1) Placer mining using any form of motorized equipment

or motorized dredge is prohibited in this state.

(2) Subsection (1) of this section does not apply to:

(a) Prospecting described in ORS 390.835.

(b) Prospecting described in ORS 196.810.

© Prospecting, small scale mining and recreational mining described

in ORS 517.120 to 517.133.

(3) Violation of subsection (1) of this section is a Class A

misdemeanor.

SECTION 2. ORS 196.910 is amended to read:

196.910. The Department of State Lands shall:

(1) Monitor removal and fill activities, including but not limited to prospecting

[and placer mining], within designated essential indigenous

anadromous salmonid habitat areas to determine the effects of such activities

on salmonid spawning and rearing habitat and compile the results in an annual

report.

NOTE: Matter in boldfaced type in an amended section is new; matter [italic and bracketed] is existing law to be omitted.

New sections are in boldfaced type.

(2) Cooperate with the State Department of Fish and Wildlife and other

interested parties to develop and distribute public education and information

materials designed to increase understanding and awareness of permit requirements

and acceptable removal and fill practices related to prospecting

[and placer mining].

(3) Report periodically to the appropriate legislative committee on the

progress of the Department of State Lands in implementing ORS 196.810.

SECTION 3. ORS 390.835 is amended to read:

390.835. (1) It is declared that the highest and best uses of the waters

within scenic waterways are recreation, fish and wildlife uses. The freeflowing

character of these waters shall be maintained in quantities necessary

for recreation, fish and wildlife uses. No dam, or reservoir, or other water

impoundment facility shall be constructed on waters within scenic

waterways. No water diversion facility shall be constructed or used except

by right previously established or as permitted by the Water Resources

Commission, upon a finding that such diversion is necessary to uses designated

in ORS 536.310 (12), and in a manner consistent with the policies set

forth under ORS 390.805 to 390.925. The Water Resources Commission shall

administer and enforce the provisions of this subsection.

(2) Filling of the beds or removal of material from or other alteration of

the beds or banks of scenic waterways for purposes other than recreational

prospecting not requiring a permit shall be prohibited, except as permitted

by the Director of the Department of State Lands upon a finding that such

activity would be consistent with the policies set forth under ORS 390.805

to 390.925 for scenic waterways and in a manner consistent with the policies

set forth under ORS 196.800 to 196.825 and 196.845 to 196.870 for removal of

material from the beds and banks and filling of any waters of this state. The

Director of the Department of State Lands shall administer and enforce the

provisions of this subsection.

(3)(a) Upon a finding of emergency circumstances, the Director of the

Department of State Lands may issue a temporary permit for the removal,

filling or alteration of the beds or banks within a scenic waterway. The

temporary permit shall include conditions developed after consultation with

the State Department of Fish and Wildlife and the State Parks and Recreation

Department.

(b) As used in this subsection, “emergency circumstances” exist if prompt

action is necessary to prevent irreparable harm, injury or damage to persons

or property.

(4) Any person adversely affected or aggrieved by the grant or denial of

a permit under subsection (2) or (3) of this section may appeal in accordance

with the procedure set forth in ORS 196.835.

(5) Nothing in ORS 390.805 to 390.925 affects the authority of the State

Fish and Wildlife Commission to construct facilities or make improvements

to facilitate the passage or propagation of fish or to exercise other responsibilities

in managing fish and wildlife resources. Nothing in ORS 390.805 to

390.925 affects the authority of the Water Resources Commission to construct

and maintain stream gauge stations and other facilities related to the

commission’s duties in administration of the water laws.

(6) Upon a finding of necessity under subsection (1) of this section, the

Water Resources Commission may issue a water right for human consumption

not to exceed 0.005 cubic feet per second per household, or livestock

consumption uses not to exceed one-tenth of one cubic foot per second per

1,000 head of livestock, as designated in ORS 536.310 (12) within or above a

scenic waterway if the Water Resources Commission makes the following

findings:

(a) That issuing the water right does not significantly impair the freeflowing

character of these waters in quantities necessary for recreation, fish

and wildlife.

(b) That issuing the water right is consistent with provisions pertaining

to water appropriation and water rights under ORS chapters 536 and 537 and

rules adopted thereunder.

© 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

© 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

© The applicant has excluded livestock from the stream and its adjacent

riparian zone.

(7) In making the findings required under subsection (6) of this section,

the Water Resources Commission shall consider the existing or potential

cumulative impacts of issuing the water right.

(8) The Water Resources Commission may not allow human consumption

and livestock uses authorized under subsection (6) of this section in excess

of a combined cumulative total of one percent of the average daily flow or

one cubic foot per second, whichever is less, unless:

(a) The Water Resources Commission, the State Parks and Recreation

Department, the State Department of Fish and Wildlife, the Department of

Environmental Quality and the Department of State Lands unanimously

agree to exceed that amount; and

(b) Exceeding that amount will not significantly impair the free-flowing

character of these waters in quantities necessary for recreation, fish and

wildlife.

(9)(a) The provisions of this section shall not apply to a water right application

for the use of ground water as defined in ORS 537.515, except upon

a finding by the Water Resources Director based on a preponderance of evidence

that the use of ground water will measurably reduce the surface water

flows necessary to maintain the free-flowing character of a scenic waterway

in quantities necessary for recreation, fish and wildlife.

(b) The Water Resources Department shall review every application for

the use of ground water to determine whether to make the finding specified

in paragraph (a) of this subsection. The finding shall be based upon the

application of generally accepted hydrogeologic methods using relevant and

available field information concerning the proposed use.

© In making the determination required by paragraph (a) of this subsection,

the Water Resources Department shall consider the timing of

projected impacts of the proposed use in relation to other factors, including

but not limited to: Changing climate, recharge, incidental precipitation,

out-of-stream appropriations and return flows.

(d) If the Water Resources Director makes the finding specified in paragraph

(a) of this subsection, the Water Resources Director shall issue an

order denying the application unless:

(A) Mitigation is provided in accordance with subsection (10) of this section;

or

(B) The applicant submits evidence to overcome the finding under paragraph

(a) of this subsection.

(e) Except as provided under subsection (13) of this section, if the Water

Resources Director does not make the finding specified in paragraph (a) of

this subsection, the Water Resources Director shall issue an order approving

the application if the application otherwise meets the requirements of ORS

537.505 to 537.795.

(f) A protest of any order issued under this subsection may be filed in the

same manner as a protest on any application for a right to appropriate

ground water.

(g) Each water right permit and certificate for appropriation of ground

water issued after July 19, 1995, for which a source of appropriation is within

or above a scenic waterway shall be conditioned to allow the regulation of

the use if analysis of data available after the permit or certificate is issued

discloses that the appropriation will measurably reduce the surface water

flows necessary to maintain the free-flowing character of a scenic waterway

in quantities necessary for recreation, fish and wildlife in effect as of the

priority date of the right or as those quantities may be subsequently reduced.

(h) Nothing in this subsection shall limit the use of ground water for a

use exempted under ORS 537.545.

(10) The Water Resources Commission or Water Resources Director shall

consider mitigation measures and may include mitigation measures as conditions

in any water right permit or certificate to ensure the maintenance

of the free-flowing character of the scenic waterway in quantities necessary

for recreation, fish and wildlife.

(11) The Water Resources Commission and the Water Resources Director

shall carry out their responsibilities under ORS 536.220 to 536.590 with respect

to the waters within scenic waterways in conformity with the provisions

of this section.

(12) As used in this section, “measurably reduce” means that the use authorized

under subsection (9) of this section will individually or cumulatively

reduce surface water flows within the scenic waterway in excess of a combined

cumulative total of one percent of the average daily flow or one cubic

foot per second, whichever is less, unless:

(a) The Water Resources Department, the State Parks and Recreation

Department, the State Department of Fish and Wildlife, the Department of

Environmental Quality and the Department of State Lands unanimously

agree to exceed that amount; and

(b) Exceeding that amount will not significantly impair the free-flowing

character of these waters in quantities necessary for recreation, fish and

wildlife.

(13) Before authorizing an appropriation that will reduce streamflows

within a scenic waterway in amounts up to but not exceeding the amounts

described in subsection (12) of this section, the Water Resources Director

shall find:

(a) That the appropriation will not significantly impair the free-flowing

character of these waters in quantities necessary for recreation, fish and

wildlife.

(b) That the appropriation is consistent with provisions pertaining to

water appropriations and water rights under ORS chapters 536 and 537 and

the rules adopted thereunder.

© That construction, operation and maintenance of the appropriation

will be carried out in a manner consistent with the purposes set forth in ORS

390.805 to 390.925.

(14) No placer mining shall be permitted on waters within scenic

waterways [other than recreational placer mining].

(15) No person shall be required to obtain a permit for recreational

prospecting resulting in the fill, removal or other alteration of less than one

cubic yard of material at any one individual site and, cumulatively, not more

than five cubic yards of material from within the bed or wet perimeter of

any single scenic waterway in a single year. Recreational prospecting shall

not occur at any site where fish eggs are present.

[(16) No provision of this section shall be construed to exempt recreational

placer mining on a scenic waterway, other than recreational prospecting not

requiring a permit, from compliance with the provisions of ORS 196.800 to

196.825 and 196.845 to 196.870 or rules adopted pursuant to ORS 196.800 to

196.825 and 196.845 to 196.870.]

[(17) Recreational placer mining, other than recreational prospecting not

requiring a permit, shall not:]

[(a) Dam or divert a waterway or obstruct fish passage;]

[(b) Include nozzling, sluicing or digging outside the wet perimeter of the

stream, nor extend the wet perimeter;]

[© Include movement of boulders, logs, stumps or other woody material

from the wet perimeter other than movement by hand and nonmotorized

equipment;]

[(d) Involve the disturbance of rooted or embedded woody plants, including

trees and shrubs, regardless of their location;]

[(e) Include excavation from the streambank;]

[(f) Fail to level pits, piles, furrows or potholes outside the main channel

of the waterway upon leaving the site;]

[(g) Include operation of a suction dredge without a suction dredge waste

discharge permit from the Department of Environmental Quality including, but

not limited to, a prohibition against dredging during periods when fish eggs

could be in the dredging site gravel;]

[(h) Be conducted on federal lands except as allowed by agencies of the

federal government;]

[(i) Impede boating;]

[(j) Include operation of a dredge between the hours of 6 p.m. and 8 a.m.

within 500 feet of a residence or within 500 feet of a campground except within

a federally designated recreational mining site; or]

[(k) Include operation of a dredge within the marked or posted swimming

area of a designated campground or day use area except within a federally

designated recreational mining site.]

[(18)] (16) As used in this section:

(a) “Bed” means the land within the wet perimeter and any adjacent

nonvegetated dry gravel bar.

(b) “Prospecting” means to search or explore for samples of gold, silver

or other precious minerals, using nonmotorized methods, from among small

quantities of aggregate.

[© “Recreational placer mining” includes, but is not limited to, the use of

nonmotorized equipment and motorized surface dredges having an intake nozzle

with an inside diameter not exceeding four inches, a motor no larger than

16 horsepower and a muffler meeting or exceeding factory-installed noise re-

duction standards. “Recreational placer mining” does not include recreational

prospecting that does not require a permit.]

[(d)] © “Wet perimeter” means the area of the stream that is underwater,

or is exposed as a nonvegetated dry gravel bar island surrounded on all sides

by actively moving water at the time the activity occurs.

SECTION 4. ORS 390.835, as amended by section 8, chapter 516, Oregon

Laws 2001, is amended to read:

390.835. (1) It is declared that the highest and best uses of the waters

within scenic waterways are recreation, fish and wildlife uses. The freeflowing

character of these waters shall be maintained in quantities necessary

for recreation, fish and wildlife uses. A dam, reservoir or other water

impoundment facility may not be constructed on waters within scenic

waterways. A water diversion facility may not be constructed or used except

by right previously established or as permitted by the Water Resources

Commission, upon a finding that such diversion is necessary to uses designated

in ORS 536.310 (12), and in a manner consistent with the policies set

forth under ORS 390.805 to 390.925. The Water Resources Commission shall

administer and enforce the provisions of this subsection.

(2) Filling of the beds or removal of material from or other alteration of

the beds or banks of scenic waterways for purposes other than recreational

prospecting not requiring a permit shall be prohibited, except as permitted

by the Director of the Department of State Lands upon a finding that such

activity would be consistent with the policies set forth under ORS 390.805

to 390.925 for scenic waterways and in a manner consistent with the policies

set forth under ORS 196.800 to 196.825 and 196.845 to 196.870 for removal of

material from the beds and banks and filling of any waters of this state. The

Director of the Department of State Lands shall administer and enforce the

provisions of this subsection.

(3)(a) Upon a finding of emergency circumstances, the Director of the

Department of State Lands may issue a temporary permit for the removal,

filling or alteration of the beds or banks within a scenic waterway. The

temporary permit shall include conditions developed after consultation with

the State Department of Fish and Wildlife and the State Parks and Recreation

Department.

(b) As used in this subsection, “emergency circumstances” exist if prompt

action is necessary to prevent irreparable harm, injury or damage to persons

or property.

(4) Any person adversely affected or aggrieved by the grant or denial of

a permit under subsection (2) or (3) of this section may appeal in accordance

with the procedure set forth in ORS 196.835.

(5) Nothing in ORS 390.805 to 390.925 affects the authority of the State

Fish and Wildlife Commission to construct facilities or make improvements

to facilitate the passage or propagation of fish or to exercise other responsibilities

in managing fish and wildlife resources. Nothing in ORS 390.805 to

390.925 affects the authority of the Water Resources Commission to construct

and maintain stream gauge stations and other facilities related to the

commission’s duties in administration of the water laws.

(6) Upon a finding of necessity under subsection (1) of this section, the

Water Resources Commission may issue a water right for human consumption

not to exceed 0.005 cubic feet per second per household, or livestock

consumption uses not to exceed one-tenth of one cubic foot per second per

1,000 head of livestock, as designated in ORS 536.310 (12) within or above a

scenic waterway if the Water Resources Commission makes the following

findings:

(a) That issuing the water right does not significantly impair the freeflowing

character of these waters in quantities necessary for recreation, fish

and wildlife.

(b) That issuing the water right is consistent with provisions pertaining

to water appropriation and water rights under ORS chapters 536 and 537 and

rules adopted thereunder.

© 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

© 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

© The applicant has excluded livestock from the stream and its adjacent

riparian zone.

(7) In making the findings required under subsection (6) of this section,

the Water Resources Commission shall consider the existing or potential

cumulative impacts of issuing the water right.

(8) The Water Resources Commission may not allow human consumption

and livestock uses authorized under subsection (6) of this section in excess

of a combined cumulative total of one percent of the average daily flow or

one cubic foot per second, whichever is less, unless:

(a) The Water Resources Commission, the State Parks and Recreation

Department, the State Department of Fish and Wildlife, the Department of

Environmental Quality and the Department of State Lands unanimously

agree to exceed that amount; and

(b) Exceeding that amount will not significantly impair the free-flowing

character of these waters in quantities necessary for recreation, fish and

wildlife.

(9)(a) The provisions of this section do not apply to a water right appli-

cation for the use of ground water as defined in ORS 537.515, except upon

a finding by the Water Resources Director based on a preponderance of evidence

that the use of ground water will measurably reduce the surface water

flows necessary to maintain the free-flowing character of a scenic waterway

in quantities necessary for recreation, fish and wildlife.

(b) The Water Resources Department shall review every application for

the use of ground water to determine whether to make the finding specified

in paragraph (a) of this subsection. The finding shall be based upon the

application of generally accepted hydrogeologic methods using relevant and

available field information concerning the proposed use.

© 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.

© That construction, operation and maintenance of the appropriation

will be carried out in a manner consistent with the purposes set forth in ORS

390.805 to 390.925.

(14) Placer mining is not permitted on waters within scenic waterways[,

other than recreational placer mining].

(15) A person may not be required to obtain a permit for recreational

prospecting or other nonmotorized recreational activity resulting in the fill,

removal or other alteration of less than one cubic yard of material at any

one individual site and, cumulatively, not more than five cubic yards of material

from within the bed or wet perimeter of any single scenic waterway

in a single year. Recreational prospecting shall not occur at any site where

fish eggs are present.

[(16) This section does not exempt recreational placer mining on a scenic

waterway, other than recreational prospecting not requiring a permit, from

compliance with the provisions of ORS 196.800 to 196.825 and 196.845 to

196.870 or rules adopted pursuant to ORS 196.800 to 196.825 and 196.845 to

196.870.]

[(17) Recreational placer mining may not

Edited by Hoser John
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Yep El D as I've spent the last 20+++ years watching the horror show unfold--warning--proving it over and over--as it allllllllll slips away at a ever increasing pace. Impossible for the 1/1,000 of 1% to maintain our rights. They are indeed trangient in a ecoenvironutz world fueled by insideous casino casha by the millions---o well I got mine but my kids,gkids,ggkids--gee Gramps did men really have to work for a livn' once upon a time--yes son there was no check a month club then and we were free :knight-horse:

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