OAR 632-001-0015: State Agency Coordination Program

(1) Purpose. The purpose of these rules is to establish the procedures to be used by the department in implementing the provisions of its State Agency Coordination Program, as required by ORS 197.180 and OAR 660, divisions 030 and 031. The State Agency Coordination program will assure that Department programs and actions determined to affect land use comply with the statewide planning goals and are compatible with acknowledged city and county comprehensive plans and land use regulations. (2) Definitions: For the purpose of this rule: (a) “Compatibility with Comprehensive Plans” means the Department has taken actions pursuant to OAR 660-030-0070 and section (5) of this rule, including following procedures in its coordination program, and there are no remaining land use conflicts between the adoption, amendment or implementation of the Department’s land use program and an acknowledged comprehensive plan; (b) “Department” means the Oregon Department of Geology and Mineral Industries; (c) “DLCD” means the Department of Land Conservation and Development; (d) “Intensification” means a change of a permitted mining or drilling activity over that approved by the local government that may warrant a reconsideration of the local government land use decision, such as a significant increase in volume of production inside a mine permit boundary or the act of increasing the permit boundary. Intensification would not include increase in the bonded area to be mined, within a larger area covered in the original permit; (e) “LCDC” means the Land Conservation and Development Commission; (f) “Substantial Modification” includes intensification, plus relocation of a proposed well site out of the originally permitted drilling unit or spacing unit or significant change or operation or reclamation, such as mining below ground water, if not previously permitted; (g) “SAC” means State Agency Coordination; (h) “Statewide Planning Goals” means the mandatory statewide planning standards adopted by LCDC pursuant to ORS 197.005 to 197.860. (3) State Agency Coordination Program. The department has adopted a State Agency Coordination Program under which the permit actions listed in section (4) of this rule must comply with the statewide land use planning goals and must be compatible with acknowledged city and county comprehensive plans and land use regulations. (4) Programs Affecting Land Use. The following activities are department programs affecting land use as defined in ORS 197.180 and OAR 660-030-0005(2): (a) The issuance of permits for oil and gas well drilling under OAR 632, division 010; (b) The issuance of permits for geothermal well drilling under OAR 632, division 020; (c) The issuance of permits for mineral and aggregate mining under OAR 632, division 030; (d) The issuance of permits for coal and metal-bearing ores under OAR 632, division 035; and (e) The issuance of permits for chemical process mining under OAR 632, division 037. (5) Compliance with the Statewide Planning Goals and compatibility with Acknowledged Comprehensive Plans: (a) The department shall assure goal compliance by acting compatibly with applicable acknowledged comprehensive plans in accordance with the procedures in subsection (5)(b) of this rule. Should a situation arise which requires direct goal findings by the Department, the Department shall adhere to the following procedure: (A) Confirm that a situation exists requiring the department to adopt findings of compliance with one or more of the statewide planning goals; (B) Identify the specific statewide planning goal(s) or goal requirement the agency must address; (C) Consult directly with the affected local governments; (D) Request any necessary interpretive guidance from the DLCD and the Attorney General’s office; (E) Rely on any relevant goal interpretations for state agencies adopted by the LCDC under OAR 660; and (F) Adopt any necessary findings to assure compliance with the statewide planning goals. (b) To make the necessary determinations of compatibility for a department permit or an intensification or substantial modification of an existing permit, the department shall take the following action: (A) When issuing operating permits for oil, gas and geothermal well drilling under OAR 632, divisions 010 and 020, the department shall: Inform applicants in writing that issuance of a permit by the department is not a finding of goal compliance or plan compatibility and that the applicant is responsible for obtaining local government land use approval supported by written findings as provided in OAR 632-010-0010(8)(a) and (B), 632-020-0030(5)(a) and (b), 660-031-0026(2)(b), and 660-031-0035(2) before the drilling activity can commence; (B) When issuing Operating Permits and approving reclamation plans for mineral and aggregate mining under OAR 632, division 030, the department shall act in accordance with the applicable comprehensive plan compatibility procedures set forth in OAR 632-030-0030(1), (2) and (3), 660-031-0026(2)(b), and 660-031-0035(2); (C) When issuing Operating Permits and approving reclamation plans for mining coal or metal-bearing ores, not involving chemical process mining, under OAR 632, division 035, the department shall inform applicants in writing that issuance of an operating permit by the department is not a finding of goal compliance or plan compatibility and that the applicant is responsible for obtaining local government land use approval supported by written findings as provided in OAR 632-035-0030(6)(a) and (b), 660-031-0026(2)(b), and 660-031-0035(2) before the mining activity can commence; and (D) When issuing Operating Permits and approving reclamation plans for chemical process mining under OAR 632, division 037, the Department shall consider and may rely on the findings of the project coordinating committee authorized by ORS 517.965 as to whether or not the proposed permit and reclamation plan are compatible with the acknowledged comprehensive plan(s) in accordance with the applicable comprehensive plan compatibility procedures set forth in OAR 632-037-0045(7)(k), 660-030-0070(2), 660-031-0026(1), and 660-031-0035(1). (6) Dispute Resolution. The department shall use one or more of the following steps to resolve any land use dispute which may arise before, during, or after approval of a project under the department’s jurisdiction which has been determined to affect land use. These steps include: (a) Coordinating closely with local land use planning authorities to identify and resolve any potential land use conflicts at an early stage; (b) Holding meetings with the affected local government(s), any affected state agency, and any other interested parties involved with the dispute, especially in cases of large or controversial projects; (c) Identifying modifications to the proposed project to avoid or resolve the dispute; (d) Coordinating closely with local land use planning authorities in the enforcement of operating permits, reclamation plans and local land use approvals affecting a mining site; (e) Requesting, if necessary, informal LCDC mediation or compatibility determination under OAR 660-030-0070. (7) Compliance and compatibility of New or Amended Land Use Programs. (a) The department’s state agency coordination program may be amended, as necessary, when any of the following occurs which add to, affect or modify department rules and programs determined to affect land use: (A) Adoption or amendment of Oregon Revised Statutes; (B) Adoption or amendment of Oregon Administrative Rules; (C) Decisions by the Land Use Board of appeals (LUBA) or Oregon appellate courts; (D) Attorney General Opinions when they provide guidance with respect to paragraphs (A), (B) and (C) of this subsection; or (E) Other unanticipated actions or decisions when they pertain to paragraphs (A), (B) or (C) of this subsection. (b) The department shall submit notice of any amendment to any department program affecting land use or any new department rule or program to DLCD as required by OAR 660-030-0075; (c) Any notice provided to DLCD to adopt new programs or amend existing programs shall demonstrate that the proposed adoption or amendment: (A) Does not affect land use and therefore is not a department land use program; or (B) Affects land use or otherwise is a department land use program and that goal compliance and comprehensive plan compatibility shall be assured through adherence to existing procedures in the department’s certified SAC program; or (C) Affects land use or otherwise is a department program affecting land use, but is not covered by regulations and procedures in the department’s certified SAC program. In this case, the notice shall include an explanation of how the department shall assure goal compliance and comprehensive plan compatibility in accordance with the applicable provisions of OAR 660-030-0075. (8) Cooperation and Technical Assistance to Local Governments Subject to statutory limitations. The department may provide technical assistance and information to local governments as availability of staff and resources permit. This assistance may include participation in pre-application or pre-permit meetings, local land use proceedings on individual permits, and may include providing technical information and assistance to permit applicants as well as to the affected local governments. Technical assistance and information provided by the department shall be for the purpose of implementing department programs and activities affecting land use during Periodic Review, comprehensive plan updates or amendments or implementation actions under acknowledged comprehensive plans and the department’s State Agency Coordination Program.