(1) Enforcement Powers. The Department is
authorized to take or recommend such civil, criminal or administrative actions
as are necessary to enforce the Removal-Fill Law and these rules.
Administrative Remedies. The Department
may take appropriate action to remedy violations or alleged violations or to
enforce these rules, a permit or authorization, or a final order or agreement.
Appropriate enforcement action depends
upon the nature of the violation and may include, but is not limited to,
requiring the violator to:
(A) Comply with
conditions of a permit, authorization or order;
(B) Remove an unpermitted fill;
(C) Restore the site of an unpermitted
(D) Pay a civil penalty;
(E) Provide compensatory
mitigation for unauthorized impacts or mitigation shortfalls. At the discretion
of the Department and in accordance with these rules, mitigation may include
payment in-lieu of mitigation, purchase of mitigation bank credits or purchase
of in-lieu fee credits; and
Forfeit their right to apply for new removal-fill permits or authorizations
following administrative remedies may be used to implement appropriate
Cease and desist
orders may be issued to prevent damage. The Department may issue an order
requiring any person to cease and desist from any project if the Department
determines that such violation or threatened violation presents an imminent and
substantial risk of injury, loss or damage to water resources.
(i) A cease and desist order may be entered
without prior notice or hearing and will be served upon the person by personal
service or by registered or certified mail.
(ii) A cease and desist order will state that
a hearing will be held on the order if a written request for hearing is filed
by the person subject to the order within 10 calendar days after receipt of the
(iii) If a person subject
to a cease and desist order files a timely request for a hearing, the
Department will hold a contested case hearing before the Office of
Administrative Hearings pursuant to the applicable provisions of ORS
(iv) Cease and desist orders will not be
stayed during the pendency of a hearing conducted under this section.
(v) Neither the Department nor any
duly authorized representative of the Department will be liable for any damages
a person may sustain as a result of a cease and desist order issued under this
agreements and consent orders are cooperative in nature and are used when an
agreement can be reached to resolve the violation. In signing a consent
agreement, the violator waives his or her right to appeal;
(C) Restoration orders may be issued when a
cooperative agreement is not reached to resolve the violation. Restoration
orders are appealable;
Revocation or suspension of an authorization, as per OAR 141-085-0780
(E) Consent agreements, consent
orders and restoration orders may include a civil penalty and corrective action
necessary to resolve the violation; and
(F) Notice of violations may be issued to
establish that a violation has occurred. Notice of violations are appealable.
and Due Process. The Department will give notice of any proposed restoration
order relating to a violation by personal service or by mailing the notice by
registered or certified mail to the person or public body affected. Any
proposed restoration order will include a notice of violation and will describe
the nature and extent of the violation.
(4) Request for Hearing. If a person subject
to a restoration order under this section files a timely request for hearing,
the Department will hold a contested case hearing before the Office of
Administrative Hearings according to the applicable provisions of ORS
183.550. If the person fails to
request a hearing, a final order will be issued upon a prima facie case made on
the record of the agency.
Restoration Orders Must Be Appealed Within 20 Calendar Days. Any person
aggrieved by a proposed restoration order may request a hearing within 20
calendar days of the date of personal service or mailing of the notice.
(6) Written Requests for Hearings.
Any written request for a hearing concerning a cease and desist or proposed
restoration order shall admit or deny all factual matters stated in the
proposed restoration order and shall state any and all claims or defenses
regarding the alleged violation. Any factual matters not denied shall be
presumed admitted, and failure to raise a claim or defense shall be presumed to
be a waiver of such claim or defense. Evidence shall not be taken at the
hearing on any issue not raised in the written request for hearing.
(7) Civil Remedies. Any violation of ORS
196.990 or of any rule or final
order of the Department under
196.990 may be enjoined in civil
abatement proceedings brought in the name of the State of Oregon; and in any
such proceedings the Department may seek and the court may award a sum of money
sufficient to compensate the public for any destruction or infringement of any
public right of navigation, fishery or recreation resulting from such
violation. Civil remedies sought under this section may also include property
liens. Proceedings thus brought by the Department will set forth, if
applicable, the dates of notice and hearing and the specific rule or order of
the Department, together with the facts of noncompliance, the facts giving rise
to the public nuisance, and a statement of the damages to any public right of
navigation, fishery or recreation, if any, resulting from such violation.
Or. Admin. R. 141-085-0775
DSL 1-2009, f. 2-13-09,
cert. ef. 3-1-09; DSL 1-2011, f. & cert. ef. 3-1-11; DSL 3-2012, f.
9-28-12, cert. ef. 9-29-12; DSL 3-2014, f. 8-14-14, cert. ef.
Stat. Auth.: ORS
Stats. Implemented: ORS