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DEPARTMENT OF LAND CONSERVATION AND DEVELOPMENT
DIVISION 31
STATE PERMIT COMPLIANCE AND COMPATIBILITY
660-031-0005
Introduction Purpose
The purpose of this rule is to clarify state agency responsibilities to apply the Statewide Planning Goals and acknowledged Comprehensive Plans during permit reviews (ORS 197.180(1) through (7)). The rule establishes procedures and standards which require consideration of Goals and Acknowledged Plans prior to approval of state permits. The rule establishes a process for state agencies to rely on a local determination of compliance with the State Planning Goals and the Acknowledged Comprehensive Plan when issuing certain permits. The rule also requires that affected state agencies develop and submit to LCDC procedures for consistency review.
Stat. Auth.: ORS 197
Stats. Implemented: ORS 197.180
Hist.: LCDC 9-1978, f. & ef. 9-22-78; LCDC 2-1984, f. & ef. 2-27-84
660-031-0010
Definitions
(1) "Acknowledged Comprehensive Plan" means a comprehensive plan and implementing ordinances that have been adopted by a city or county and have been found by the Land Conservation and Development Commission to be in compliance with the Statewide Planning Goals pursuant to ORS 197.251.
(2) "Affected Local Government" means the unit of general purpose local government that has comprehensive planning authority over the area where the proposed activity and use would occur.
(3) "Class A Permits" are state permits affecting land use that require public notice and public hearing at the agency's discretion prior to permit approval, including those permits identified as Class A permits in OAR 660-031-0012(1).
(4) "Class B Permits" are those state permits affecting land use which do not require public notice or an opportunity for public hearing before permit issuance, including those permits identified as Class B permits in OAR 660-031-0012(2).
Stat. Auth.: ORS 197
Stats. Implemented: ORS 197.180
Hist.: LCDC 9-1978, f. & ef. 9-22-78; LCDC 2-1984, f. & ef. 2-27-84
660-031-0012
Listing of Class A and Class B State Agency Permits Affecting Land Use
(1) Class A Permits:
(a) Department of Energy (DOE) -- Energy Facility Site Certificates;
(b) Department of Fish and Wildlife (DFW) -- Salmon Hatchery Permit;
(c) Division of State Lands (DSL) -- Fill and Removal Permit;
(d) Department of Transportation (DOT) -- Ocean Shore Improvement Permit;
(e) Department of Environmental Quality -- Hazardous Waste Disposal, Collection or Storage Permit.
(2) Class B Permits:
(a) Department of Agriculture -- Oyster plat application;
(b) Department of Environmental Quality:
(A) Air Contaminant Discharge Permit;
(B) Waste Discharge Permit (National Pollution Discharge Elimination System -- NPDES);
(C) Indirect Source Permit;
(D) Water Pollution Control Permit;
(E) Solid Waste Disposal Permit.
(c) Department of Fish and Wildlife -- Placing Explosives or Harmful Substances in Waters Permit;
(d) Department of Geology and Mineral Industries:
(A) Surface Mining Operation Permit;
(B) Permit to Drill -- Geothermal Well;
(C) Permit to Drill -- Oil or Gas Well.
(e) Protective Health Services Section, Health Division, Department of Human Resources:
(A) Public Water Supply Plan;
(B) Organization Camp Plan Review;
(C) Recreational Vehicle Park Plan Review.
(f) Water Resources Department:
(A) Appropriate Groundwater;
(B) Appropriate Surface Water;
(C) Water Storage;
(D) Hydroelectric.
(g) Department of Transportation (DOT):
(A) Road Approach;
(B) Airport Site Approval;
(C) On and Off-Premise Signs.
(h) Division of State Lands -- Geophysical and Geological Survey Permits;
(j) Public Utility Commissioner (PUC) -- Railroad Highway Crossing Project.
Stat. Auth.: ORS 197
Stats. Implemented: ORS 197.180
Hist.: LCDC 9-1978, f. & ef. 9-22-78; LCDC 2-1984, f. & ef. 2-27-84
Consistency Review Requirements
660-031-0015
Identification of Class A and Class B Permits
Affected state agencies shall upon request of the Commission submit a program for permit consistency listing their Class A and Class B permits affecting land use including those set forth in Appendix 1. Upon submitting its program to the Commission, an agency may request a change in the designation of Class A and Class B permits.
[ED. NOTE: The Appendix referenced in this rule is available from the agency.]
Stat. Auth.: ORS 197
Stats. Implemented: ORS 197.180
Hist.: LCDC 9-1978, f. & ef. 9-22-78; LCDC 1-1983(Temp), f. & ef. 1-31-83; LCDC 2-1984, f. & ef. 2-27-84
660-031-0020
Review Criteria for Class A and B Permits
(1) Where the affected local government does not have an Acknowledged Comprehensive Plan, the state agency's or local government's review shall assess whether or not the proposed activity and use are in compliance with the Statewide Planning Goals.
(2) Where the affected local government has an Acknowledged Comprehensive Plan, the state agency or local government review shall address compatibility with the Acknowledged Comprehensive Plan when the activity or use is:
(a) Prohibited by the plan;
(b) Allowed outright by the plan;
(c) Allowed by the plan but subject to standards regarding siting, design, construction and/or operation; or
(d) Allowed by the plan but subject to future goal considera-tions by the local jurisdiction.
(3) Where the affected local government has an Acknow-ledged Comprehensive Plan the Statewide Planning Goals shall be a criteria for permit review after acknowledgment when the state agency finds one of the following exists:
(a) Local government or the Director has determined during periodic review that one or more factors under ORS 197.640(3)(a)(b) or (d) apply;
(b) The Acknowledged Comprehensive Plan and implementing ordinances do not address or control the activity under consideration;
(c) The Acknowledged Comprehensive Plan allows the activity or use but subject to future goal considerations by an agency; or
(d) The comprehensive plan or land use regulations are inconsistent with a state agency plan or program relating to land use that was not in effect at the time that the local government's plan was acknowledged; and, the plan or program is mandated by state statute or federal law, is consistent with the Goals and has objectives that cannot be achieved consistent with the comprehensive plan or land use regulations.
Stat. Auth.: ORS 197
Stats. Implemented: ORS 197.180
Hist.: LCDC 9-1978, f. & ef. 9-22-78; LCDC 1-1983(Temp), f. & ef. 1-31-83; LCDC 2-1984, f. & ef. 2-27-84
660-031-0026
Compliance and Compatibility Review Procedures for Class A and B Permits
State Agency Coordination Agreements shall describe the process the agency will use to assure that permit approvals are in compliance with Statewide Planning Goals and compatible with Acknowledged Comprehensive Plans:
(1) Class A Permits: In their review of Class A permits state agencies shall:
(a) Include in the notice for the proposed permit a statement that the proposed activity and use are being reviewed for compliance with the Statewide Planning Goals and compatibility with the Acknowledged Comprehensive Plan as part of the permit review;
(b) Insure that the notice for the proposed permit is distributed to the affected city(ies) or county(ies) and its citizen advisory committee;
(c) When there is a public hearing on a proposed permit, consider testimony on compliance of the proposed activity and use with the Statewide Planning Goals and compatible with the Acknowledged Comprehensive Plan;
(d)(A) Based on comments received from the public and other agencies, determine whether or not the proposed permit complies with the Statewide Planning Goals and is compatible with the Acknowledged Comprehensive Plan;
(B) If a state agency's existing process for administration of Class A permits is substantially equivalent to the process required by this section, the agency may request LCDC approval of its existing process as described in its agency coordination agreement.
(2) Class B Permits: In accordance with OAR 660-031-0020 and 660-031-0035(2), the review process shall assure either:
(a) That prior to permit issuance, the agency determines that the proposed activity and use are in compliance with Statewide Planning Goals and compatible with the applicable Acknowledged Comprehensive Plan; or
(b) That the applicant is informed that:
(A) Issuance of the permit is not a finding of compliance with the Statewide Planning Goals and compatibility with the Acknowledged Comprehensive Plan, and
(B) The applicant must receive a land use approval from the affected local government. The affected local government must include a determination of compliance with the Statewide Planning Goals or compatibility with the Acknowledged Comprehensive Plan which must be supported by written findings as required in ORS 215.416(6) or 227.173(2). Findings for an activity or use addressed by the acknowledged comprehensive plan in accordance with OAR 660-031-0020, may simply reference the specific plan policies, criteria, or standards which were relied upon in rendering the decision and state why the decision is justified based on the plan policies, criteria or standards.
Stat. Auth.: ORS 197
Stats. Implemented: ORS 197.180
Hist.: LCDC 2-1984, f. & ef. 2-27-84
660-031-0030
Effect of a Determination of Noncompliance or Incompatibility
In accordance with OAR 660-031-0020 when a state agency or local government determines that a proposed activity or use is not in compliance with an applicable Statewide Planning Goal or not compatible with the Acknowledged Comprehensive Plan, the state agency shall deny the state permit and cite the inconsistency as the basis for denial. State agencies may defer approval or conditionally approve a permit when compliance with a Statewide Planning Goal or the Acknowledged Comprehensive Plan requires an action that can only be taken by the affected local government.
Stat. Auth.: ORS 197
Stats. Implemented: ORS 197.180
Hist.: LCDC 9-1978, f. & ef. 9-22-78; LCDC 1-1983(Temp), f. & ef. 1-31-83; LCDC 2-1984, f. & ef. 2-27-84
660-031-0035
Reliance on the Local Government's Determination
(1) Class A Permits: When making findings, state agencies may use the affected local government's compatibility determination when the agency finds the affected local government has determined that the proposed activity and use are compatible or incompatible with its Acknowledged Comprehensive Plan.
(2) Class B Permits: State agencies may rely on the affected local government's determination of consistency with the Statewide Planning Goals and compatibility with the Acknowledged Comprehensive Plan when the local government makes written findings demonstrating compliance with the goals or compatibility with the acknowledged plan in accordance with OAR 660-031-0026(2)(b)(B).
Stat. Auth.: ORS 197
Stats. Implemented: ORS 197.180
Hist.: LCDC 9-1978, f. & ef. 9-22-78; LCDC 1-1983(Temp), f. & ef. 1-31-83; LCDC 2-1984, f. & ef. 2-27-84
660-031-0040
Renewal Permits
A determination of compliance with the Statewide Planning Goals or compatibility with Acknowledged Comprehensive Plan is not required if the proposed permit is a renewal of an existing permit except when the proposed permit would allow a substantial modification or intensification of the permitted activity. Substantial modifications or intensification shall be defined in an agencies' State Agency Coordination Agreement under ORS 197.180.
Stat. Auth.: ORS 197
Stats. Implemented: ORS 197.180
Hist.: LCDC 1-1983(Temp), f. & ef. 1-31-83; LCDC 2-1984, f. & ef. 2-27-84
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