HB 3309 – Excavation for Development Purposes is Not Surface Mining: HB 3309 is a controversial bill. The bill does two things. First, it reverses an existing provision of Oregon law that prohibits the siting of “essential facilities” (police stations, fire stations, hospitals, schools etc.) in tsunami inundation zones established by the Oregon Department of Geology and Mineral Industries (DOGAMI). This is the controversial portion of the bill.
The change to the statute does not mean that essential facilities will automatically be sited in tsunami zones. Instead, it simply means that DOGAMI will not be the final arbiter of whether a structure will be built in a tsunami zone. That choice will be left to the local governments and the Land Conservation and Development Commission (LCDC), the governing bodies that have jurisdiction and expertise over planning and zoning. DOGAMI has no planning and zoning authority, and lacks the expertise to determine whether a structure can be designed and constructed safely in a tsunami zone. Nevertheless, this portion of the bill was the subject of negative media coverage, written by reporters who don’t understand Oregon law.
The second change made by HB 3309 clarifies that excavation or grading operations associated with on-site construction activities do not constitute “surface mining” for purposes of requiring the property owner to obtain a mining permit from DOGAMI. A property owner performing on-site excavation in conjunction with some type of land use approval is not mining, and should not be subject to DOGAMI jurisdiction, unless the land use is an aggregate mine or some type of mining operation conducted for the purpose of commercial sale of the excavated material. Recent litigation in Deschutes County pointed out the potential to make a broad read of the current statute to find that excavation activities that aren’t related to commercial mining could be construed as “surface mining”. OPOA partnered with the Oregon Concrete and Aggregate Producers Association (OCAPA) to close that possibility.