OAR 736-023-0030: Periodic Re-Examination of Statutory Vegetation Line

(1) The department will re-examine the statutory vegetation line in littoral cell units. The Department may re-examine the statutory vegetation line: (a) On its own initiative, or when directed by the Commission; (b) Upon request from the governing body(s) of a county(s) or city(s) contiguous to the littoral cell in question; or (c) Upon request from one or more owners of property that is part of, contiguous or in close proximity to the littoral cell in question. (2) Re-examination described shall include the following: (a) A description of the littoral cell to be re-examined; (b) An assertion of the direction and extent, if any, to which the actual vegetation line has moved from the location of the statutory vegetation line described by ORS 390.770; (c) A statement of the perceived cause of the movement of the actual vegetation line and the likelihood that such movement is continuing and/or or permanent; (d) A description of the harm to the public or private use and enjoyment of the specific area caused by the current location of the statutory vegetation line; (e) Photographs, affidavits or other documentary evidence supporting the change proposed in the petition; (f) A history citing changes since 1967 of the littoral cell in question. This shall include but not limited to a current survey, past surveys and aerial surveys at 5–10 year intervals. (3) In its investigation and review of the actual and statutory vegetation lines, and in formulating its recommendation to the Commission, the department will consider, but is not limited to, the following factors: (a) The density and location of vegetation at and near to the segment for which a change is requested; (b) The extent of the shift of the actual vegetation line; (c) The cause of any change in the location of the actual vegetation line, including accretion, erosion, vegetative stabilization activities, construction of physical structures, such as seawalls and revetments, sudden natural events and non-natural causes; (d) The likelihood that the present location of the actual vegetation line will remain stable over a period of twenty five years or more, not withstanding seasonal erosion and accretion patterns. Stability will be based on review of the physical conditions of the beach area in question as evidenced by statutory vegetation line aerial photography taken since 1967; (e) The line delineating the extreme high tide, at present and in the recent past; (f) The area commonly identified by the public as public beach and customarily used for recreational purposes; (g) The fiscal impact to the department of any proposed adjustments to the statutory vegetation line; (h) Prior recommendations or decisions by the Commission regarding similarly situated segments of the statutory vegetation line; (i) The length of the statutory vegetation line segment under review, and the relationship of the existing and proposed segments under review to the existing statutory vegetation line segments to the north and south; (j) The effect of moving or not moving the statutory vegetation line on private landowners’ use and enjoyment of the upland; (k) The effect of moving or not moving the statutory vegetation line on the public’s use and enjoyment of the state recreation areas described in ORS 390.610(2) and (3); (l) Direct and indirect public costs that could be incurred by a change in the statutory vegetation line. (4) The department may collect and evaluate information from the following sources, among others, to assess the factors described in section (3) of this rule: (a) On-site inspections; (b) Photographs including aerial photos and mosaics; (c) Surveys; (d) Scientific and historical studies and data; (e) Consultation with local, state and federal agencies; (f) Testimony presented at public hearings. (5) The department, upon undertaking an evaluation of the statutory vegetation line pursuant to section (1) of this rule, shall conduct one or more public hearings in the vicinity of the affected area. For the convenience of interested parties, the Department in its discretion may hold additional hearings elsewhere. Notice of hearings shall be published in a local newspaper and mailed to owners of property adjacent to the ocean shore and within the littoral cell where the statutory vegetation line is under review. (6) Upon obtaining all pertinent information and public comment, the department will forward to the Commission a report setting forth data, comments, findings, and a proposed recommendation regarding adjustment of specific segments of the statutory vegetation line.