(a) Whether the maintenance activities described in the notice will meet the requirements of ORS 196.913; and

(b) Whether conditions in addition to those required under ORS 196.913 are necessary to address the presence of endangered or threatened species, to protect endangered or threatened species’ habitat quality or quantity, or to otherwise protect the existing functions of the channel.

(2)(a) Except as provided under paragraph (b) of this subsection, the State Department of Agriculture shall include any conditions recommended by the State Department of Fish and Wildlife in the response to the notice required under subsection (3) of this section.

(b) If the State Department of Agriculture disagrees with the recommendations of the State Department of Fish and Wildlife, the State Department of Agriculture shall provide a copy of the notice and of the recommendations to the Department of State Lands for the Department of State Lands to make a final determination regarding:

(A) Whether the maintenance activities described in the notice may occur without a removal or fill permit; and

(B) What conditions in addition to those required under ORS 196.913, if any, are necessary for the maintenance activities to occur without a removal or fill permit.

(c) The Department of State Lands shall provide any final determination required pursuant to paragraph (b) of this subsection to the State Department of Agriculture within five days after receiving the copies of the notice and recommendations.

(3) The State Department of Agriculture shall provide a response to a notice filed pursuant to ORS 196.911 no later than 45 days after the date that the notice is received. The response must include any conditions in addition to those required under ORS 196.913 that the departments have determined are necessary, pursuant to the process described in subsection (2) of this section, for maintenance activities to occur in the traditionally maintained channel without a removal or fill permit. If the State Department of Agriculture does not provide a response to a notice within the time period described in this subsection, maintenance activities may proceed as described in the notice and pursuant to ORS 196.913.

(4) Upon a request from the person submitting a notice under ORS 196.911, the State Department of Agriculture and the State Department of Fish and Wildlife may provide for expedited review under subsections (1) to (3) of this section, if the expedited review is necessary to allow for maintenance activities to occur within a specific time period.

(5) Prior to initiation of maintenance activities, a person who has a notice of maintenance activities on file with the State Department of Agriculture may request from the State Department of Agriculture a variance from any condition required under ORS 196.913 (2) or this section. The State Department of Agriculture shall consult with the State Department of Fish and Wildlife before granting a variance under this subsection. A person that has applied for a variance may not commence maintenance activities until after the State Department of Agriculture has granted the variance and informed the person of any modifications to conditions or additional conditions that must be met for the maintenance to occur.

(6)(a) Subject to paragraph (b) of this subsection, the State Department of Agriculture or the State Department of Fish and Wildlife may enter onto and inspect lands for which notices have been filed under ORS 196.911 in order to develop the recommendations and response required by subsections (1) to (3) of this section or to ascertain compliance with ORS 196.906 to 196.919.

(b) To enter onto and inspect lands under this subsection:

(A) The Department of Agriculture shall first make a reasonable attempt to notify the landowner;

(B) The departments may only enter onto and inspect the lands at a reasonable time; and

(C) The State Department of Fish and Wildlife may not, without the express agreement of the person, district, company or corporation that filed the notice, enter onto and inspect the lands unless accompanied by the State Department of Agriculture.

(7) The State Department of Agriculture shall maintain a record of a notice filed pursuant to ORS 196.911 and any related correspondence for 10 years after the date that the notice is received.

(8)(a) The Department of State Lands may, after consultation with the State Department of Agriculture and the State Department of Fish and Wildlife, adopt rules as necessary to implement ORS 196.906 to 196.919. Rules adopted pursuant to this subsection may include, but need not be limited to, rules:

(A) Modifying the volume limits for removal or fill set forth in ORS 196.913 (1) or applying different volume limits within certain geographies for certain types or categories of traditionally maintained channels; or

(B) Modifying the conditions that apply for maintenance of a traditionally maintained channel set forth in ORS 196.913 (2).

(b) Any rules adopted under paragraph (a)(A) or (B) of this subsection must be based on the best available scientific information and on findings that the rules will:

(A) Allow for maintenance of traditionally maintained channels to be conducted in a manner that protects, maintains or improves the existing ecological and habitat function of traditionally maintained channels; and

(B) Result in appropriate changes to the conditions required for conducting maintenance activities, under an adaptive management approach, for carrying out the state policy stated in ORS 196.906.

(9) Nothing in ORS 196.906 to 196.919 limits or otherwise changes the exemptions under ORS 196.921.

(10) The costs of activities taken by the State Department of Fish and Wildlife to carry out the duties of the department under ORS 196.906 to 196.919 may not be charged to another state agency as recompensable assistance under ORS 496.167 and 496.168. [2019 c.699 §6]

Note: See note under 196.906.