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Chapter 21.36 Bull Run Watershed Protection

City Code Chapter

21.36.010 Designation of Bull Run Watershed Closure Area.

Pursuant to authority granted by ORS 448.295 to ORS 448.325 and the Portland City Charter, there is hereby designated a Bull Run Watershed Closure Area (Closure Area) within which the limitations and restrictions of this Chapter 21.36 of the Portland City Code will apply.

The Closure Area consists of all land, regardless of ownership, shown on the map of record dated October 2014 titled: “Portland City Code Chapter 21.36, Bull Run Watershed Closure Area” and attached to Ordinance No. 186839 as Exhibit B.  The map has been created, will be maintained, and will be made available for public review by the Portland Water Bureau.

The City of Portland owns portions of the land within the Closure Area. City Code that affects City land within the Closure Area must conform with federal and state law, federal and state administrative policy and tribal treaty rights, if any.

In this Chapter:

A.  Sections 21.36.020 through 21.36.040 apply to all land within the Closure Area (unless otherwise noted).

B.  Section 21.36.050 applies only to City land within the Closure Area.

21.36.020 Prohibition of Unauthorized Entry.

It is unlawful for any person to enter into or be upon land within the Closure Area without permission or a valid entry permit.  The Portland Water Bureau will post suitable signs of this limitation at all points of road entry into the Closure Area and at such other locations along the boundary of the Closure Area as it deems advisable.

The following categories of people may enter the Closure Area:

A.  Authorized employees of the U.S. Forest Service, Bureau of Land Management and Portland Water Bureau;

B.  Authorized federal, state, and local government officers and employees thereof acting in an official capacity;

C.  Contractors with a valid entry permit issued by the U.S. Forest Service, Bureau of Land Management or Portland Water Bureau; and,

D.  People meeting any of the following exceptions which do not require an entry permit:

1.  Hikers on:

a.  The Pacific Crest National Scenic Trail (#2000)

b.  The Huckleberry Trail (#617)

c.  The Oneonta Trail (#424)

2.  People performing official work as law enforcement, City-directed utility maintenance, or emergency response personnel; or,

3.  People entering the watershed accompanied by authorized employees of the U.S. Forest Service, Bureau of Land Management or Portland Water Bureau.

The Administrator will designate those Portland Water Bureau employees who may access the Closure Area.  The Administrator can authorize employees to enter the Closure Area or to issue entry permits, or both.

21.36.030 Prohibited Actions Within the Bull Run Watershed Closure Area.

It is unlawful to engage in any activities in the Closure Area that are not authorized by:

A.  An entry permit; or,

B.  An employee of U.S. Forest Service, Bureau of Land Management or Portland Water Bureau authorized to work in the Closure Area or issue permits for others to enter the Closure Area.

It is unlawful for any person to permit domestic animals to run at large within the Closure Area. Domestic animals are not allowed on City lands in the Closure Area.

21.36.040 Enforcement.

A.  Violation of Sections 21.36.020 or 21.36.030 on land owned by the federal government within the Closure Area is punishable upon conviction by a fine or imprisonment as a Class C Misdemeanor pursuant to ORS 161.615 and 161.635 in accordance with ORS 448.305(3).  Each unlawful act is chargeable as a separate violation for each occurrence.  (Entry into federal land within the Closure Area is also a violation of 18 USC §1863, which carries punishments of imprisonment up to 6 months and fines up to $5,000.)

B.  Violation of Sections 21.36.020 or 21.36.030 on land owned by the City lying within the Closure Area is punishable upon conviction by a fine or imprisonment as a Class C Misdemeanor pursuant to ORS 161.615 and 161.635 in accordance with ORS 448.305(3).  Each unlawful act is chargeable as a separate violation for each occurrence.

C.  The Administrator may appoint Portland Water Bureau employees as Closure Area enforcement officers as provided for in ORS 448.315 to enforce Sections 21.36.020 and 21.36.030.  Prior to assuming duties, each employee designated as a Closure Area enforcement officer will take an oath of office specified by the Administrator.  While on duty, the employees authorized to enforce this Code will wear in plain sight a badge as required by ORS 448.315.  Appointment by the Administrator as a Closure Area enforcement officer will also make the employee appointed a “person in charge” of City property within the Closure Area for purposes of Portland City Code Section 5.36.115 and grant the employee authority to order persons to leave City property.

D.  Closure Area enforcement officers will have the authority to order people to leave the Closure Area, and to issue citations for Code violations.

E.  The Circuit Courts of Multnomah County, Clackamas County and Hood River County have jurisdiction to try and determine any prosecution for Closure Area code violations within their counties.

F.  The Administrator may also pursue enforcement of any violation of Sections 21.36.020 or 21.36.030, pursuant to Section 21.24.090.

21.36.050 Bull Run Watershed Protection Policy.

A.  In general, the City’s primary purpose for City lands and facilities within the Closure Area will be the continued production of clear, raw, potable water for municipal use.  The City will accomplish this in part through enforcement of protections for the source water, which include general prohibitions on human entry and activities such as tree cutting and grazing.

The City manages its land for other purposes only if those purposes are consistent with the primary purpose of protecting the water supply.  Subject to the limitations of Subsection 21.36.050 B., management for other purposes is allowed, only if such management is consistent with the accomplishment of the primary management purpose, consistent with the special forest protection standards of adjacent federal lands found in the federal Bull Run Management Act, P.L. 95-200, as amended, and performed in compliance with obligations imposed by federal, state, and local law.  Other allowed purposes include:

1.  Generating hydroelectric power;

2.  Transmission of electricity and telecommunications;

3.  Protection and stewardship of the natural environment including fish and wildlife habitat;

4.  Conservation education; and,

5.  Scientific inquiry.

B.  Specific Land Use Limitations.

City lands in the Closure Area must not be developed or used for recreational purposes. City lands in the Closure Area must not be developed or used for residential, industrial or commercial purposes, except if necessary to protect, enhance, operate or maintain the water supply and electrical power generation and transmission systems and facilities.

C.  Tree Protection.

Tree cutting or removal, including salvage, will not occur on City lands within the Closure Area, except for the following purposes:

1.  For the protection or enhancement of water quality;

2.  For the protection, enhancement or maintenance of water quantity for City use;

3.  For the construction, expansion, protection or maintenance of municipal water supply facilities;

4.  For the construction, expansion, protection or maintenance of facilities for the transmission of energy through and over the Closure Area, hydroelectric facilities or hydroelectric projects associated with municipal water supply facilities; or,

5.  For the protection of human life, safety or infrastructure.

D.  Ownership of Land and Infrastructure in the Closure Area.

1.  Within the Closure Area, City land and infrastructure integral to municipal water delivery must not be transferred to any private entity.

2.  Within the Closure Area, City land and infrastructure integral to municipal water delivery must not be transferred to a public entity unless the transfer is approved by ordinance passed by Portland City Council.

E.  Public Notice of Human Activity in the Closure Area.

1.  Each calendar quarter, the Portland Water Bureau must publish a list of ongoing, routine activities it conducts, permits or allows inside the Closure Area.  This quarterly project list must include activities that involve people inside the Closure Area, such as:

a.  Activities to divert, test or protect water for municipal supply or hydroelectric power generation;

b.  Construction or maintenance of facilities, including roads and trails;

c.  Educational or management tours; and,

d.  Data collection for regulatory, management or scientific purposes.

2.  The quarterly project list must also include:

a.  All Portland Water Bureau capital projects inside the Closure Area.  This applies to all projects in planning, design or construction phases.

b.  All non-routine activities that involve or will involve people inside the Closure Area.  This applies to City work and other City-sponsored activities, in planning, design and implementation phases.

3.  The Portland Water Bureau must post the quarterly project list on its website, along with contact information for a bureau employee who will respond to questions about listed activities.

4.  The Portland Water Bureau must also provide an opportunity for members of the public to request notice if amendments to the project list occur between the regular quarterly updates.

F.  Public Notice and Comment.

1.  The Portland Water Bureau must provide an opportunity for members of the public to comment on individual capital projects and/or non-routine projects identified on the quarterly project list. Members of the public who comment on an individual project will be considered a stakeholder for that project.

2.  Project Impact Assessment. The Portland Water Bureau must provide an opportunity for members of the public to comment on a Project Impact Assessment as defined in Subsection 21.36.050 G.1.  The Portland Water Bureau must notify the project’s stakeholders and must post the Impact Assessment online.  The public will have 30 calendar days to submit comments on the Impact Assessment.

3.  Project Mitigation. During the project’s design phase, the Portland Water Bureau must provide an opportunity for members of the public to comment on a Mitigation Summary as defined in Subsection 21.36.050 G.2.  The Portland Water Bureau must notify the project’s stakeholders and must post the Mitigation Summary online.  The public will have 30 calendar days to submit comments. The Portland Water Bureau must post a Response to Comments within 30 calendar days after the public comment period ends and must notify the commenters. 

4.  Exceptions.  If exceptions to prohibitions in Subsections 21.36.050 H.4.g. or K. are approved for a project by the Administrator, the Portland Water Bureau must notify the project’s stakeholders.

5.  The Portland Water Bureau must provide an opportunity for members of the public to formally object to the Portland Water Bureau’s analysis of environmental impacts for projects with significant impacts on the watershed, as identified in the project’s Impact Assessment, Mitigation Summary and Response to Comments.  Written objections must be submitted within 14 calendar days after the Portland Water Bureau’s Response to Comments is posted online. 

6.  After consideration of the objection, the Administrator and Commissioner-in-Charge must sign a decision responding to the objection and the Portland Water Bureau must provide the decision to the objecting party.

7.  A Portland Water Bureau decision on an objection to a project with significant impacts on the watershed may be appealed to Portland City Council. Appeals must be submitted within 14 calendar days of the bureau decision on the objection.  A public hearing must be held prior to a City Council vote.  A Portland City Council vote is the final decision on the appeal.

8.  The Commissioner-in-Charge has discretion to extend comment period lengths defined in this Section for specific projects.  Notice of extended comment periods must be provided to stakeholders.

9.  For individual major City projects on City-owned land in the Closure Area subject to federal requirements of the National Environmental Policy Act, the Commissioner-in-Charge has discretion to require City comment, objection and appeal processes to complement the federal process.

G.  Project Impact Assessment and Mitigation Process.

1.  Project Impact Assessment.  The Portland Water Bureau must establish in administrative rules a methodology for assessing environmental impacts of capital and non-routine projects on City land in the Closure Area.  The methodology must be adaptable to the varying type and scope of individual  projects must define criteria for determining what is a significant impact to the watershed and must define requirements for considering a reasonable range of alternatives to reduce and mitigate the level of environmental impact.

2.  Project Mitigation.  The Portland Water Bureau must establish in administrative rules a methodology for defining and summarizing project mitigation.  The project’s Mitigation Summary must include descriptions of how the project mitigation addresses, to the greatest extent practical, the applicable City, county, state and federal standards and requirements relevant to impacts to water quantity and quality, cultural resources, and the natural environment including soils, vegetation, and fish and wildlife and related habitat. Project-specific mitigation must enable compliance with applicable City, county, state and federal regulations and permits.

3.  Bull Run Special Provisions.  The Portland Water Bureau must incorporate relevant standards and requirements to avoid, then minimize and mitigate, common impact types into the Bull Run Special Provisions, including applicable components of Subsections 21.36.050 H., I., J. and K. 

4.  Best Management Practices. The Portland Water Bureau must establish best management practices (BMPs), on an ongoing basis, to be employed in the implementation of ongoing routine programs and during emergency responses.  The BMPs must avoid, then minimize and mitigate, impacts to City land in the Closure Area to the greatest extent practical.  The BMPs must be consistent with, and at least as protective as, comparable BMPs on national forest land in the Bull Run Watershed Management Unit.  BMPs must be documented in standard operating procedures.  BMPs must enable compliance with applicable City, county, state and federal requirements and permits.

5.  For major City projects in the Closure Area subject to federal impact assessment and mitigation requirements of the National Environmental Policy Act, the Commissioner-in-Charge has discretion to require a City impact assessment and mitigation process to complement the federal process.

H.  Riparian Protection.

The City owns land next to streams, rivers and reservoirs inside the Closure Area. The Portland Water Bureau manages this land to protect water quality, riparian habitat and fish and wildlife.

1.  The Portland Water Bureau must not allow construction of new structures within the following riparian reserves inside the Closure Area:

a.  Within 420 feet (slope distance; based on height of two site-potential trees) of:

(1)  Lakes, reservoirs, and ponds (420 feet surrounding);

(2)  Fish-bearing streams (420 feet on each side of the stream for 840 total feet).

b.  Within 210 feet (slope distance; based on height of one site-potential tree) of:

(1)  Perennial non-fish-bearing streams (210 feet on each side of the stream, for 420 total feet);

(2)  Intermittent or seasonal streams (210 feet on each side of the stream, for 420 total feet);

(3)  Wetlands (210 feet surrounding); or,

(4)  Geologically unstable or potentially unstable areas (210 feet surrounding).

2.  The Portland Water Bureau may use site-specific analysis to differentiate riparian from upland characteristics and to modify the distances defined above in a. and b. for specific project sites.  The modifications must be documented in riparian reserve protection plans, defined below in Subsection 21.36.050 H.5.

3.  The Portland Water Bureau uses the National Hydrography Dataset and state and federal regulations to define and map wetlands and stream types.

4.  Exceptions to Riparian Reserve Construction Prohibition. The following types of construction are allowed:

a.  New or replacement facilities in an existing developed, paved or otherwise non-forested water supply operation area located within riparian reserves.  This exception includes, but is not limited to:

(1)  Headworks complex;

(2)  Dams;

(3)  Conduits;

(4)  Inundated reservoirs;

(5)  Conduit corridors;

(6)  Power line corridors;

(7)  Telecommunication sites; or,

(8)  Hydroelectric plants.

b.  New facilities that need to be in or near water to function.  This exception includes, but is not limited to:

(1)  Dams and dam-related structures (such as spillways and intake towers);

(2)  Reservoirs;

(3)  Boathouses;

(4)  Boat ramps; or,

(5)  Stations for monitoring water quality or gaging stream flow.

c.  New water system infrastructure that needs to connect to (or be close to) new or existing facilities allowed in riparian reserves.  This exception includes but is not limited to:

(1)  Water supply conduits;

(2)  Facility access roads and trails;

(3)  Power lines and power line corridors; or,

(4)  Telecommunication facilities.

d.  Bridges, culverts and other road or trail infrastructure that crosses water.

e.  Temporary structures (such as fences).

f.  Emergency work to protect:

(1)  Human life or safety;

(2)  The watershed;

(3)  The water supply; and,

(4)  Infrastructure.

g.  Any other exceptions must be approved by the Administrator.

5.  Riparian Reserve Protection Plans.

For projects that repair, rehabilitate or replace existing or construct new facilities, assets or equipment in riparian reserves (including the exceptions in Section 21.36.050), the Portland Water Bureau must develop and implement a riparian reserve protection plan.  The plan must identify measures or requirements for:

a.  Fuel and other chemical storage and containment;

b.  Spill containment and response;

c.  Construction equipment staging;

d.  Avoiding, then minimizing and mitigating, erosion, soil compaction, vegetation removal and terrestrial and aquatic habitat disturbance; and,

e.  Protecting cultural resources.

I.  Revegetation of City-Owned Land in the Closure Area.

1.  If construction or maintenance work removes vegetation or exposes bare soil, the Portland Water Bureau must create a site restoration plan adapted to the scope of the project.  The Portland Water Bureau must restore and revegetate the site according to the plan.

2.  Routine facility repair and maintenance are exempt from revegetation requirements.

Routine work is exempt if:

a.  Tree cutting is limited to exceptions listed in Section 21.36.050; and,

b.  The project does not result in significant ground disturbance, as defined in Portland City Code Title 10.

Brushing roads, cleaning ditches, clearing power line right-of-way vegetation, clearing defensible space near facilities for fire prevention, clearing vegetation to meet federal dam safety requirements and mowing are examples of exempt work.

J.  Stream Crossings and Passage for Aquatic Organisms.

The Portland Water Bureau manages culverts, bridges and other stream crossings on City-owned land in the Closure Area.  The Portland Water Bureau manages these crossings to maintain transportation access, maintain effective drainage during storms, and protect water quality and aquatic habitat.

1.  New culverts, bridges and other stream crossings must be built and maintained to:

a.  Accommodate at least a 100-year flood, including its bedload and debris.  The structure opening must be at least as wide as the width of the stream at the ordinary high-water mark to prevent the structure from constricting the stream or accelerating its velocity at bank-full flow.

b.  Maintain or improve fish passage wherever roads cross streams that have (or have historically had) populations of native migratory fish, in accordance with state and federal fish passage regulations.

c.  To the extent practicable, provide passage for aquatic organisms at all life stages using stream simulation design methodology.

d.  Prevent the diversion of streamflow out of its channel and down the road if a crossing fails.

2.  Existing culverts and other stream crossings are required to meet the standards for new crossings when they are replaced.

3.  The Portland Water Bureau must monitor and maintain new and existing stream crossing facilities so that they continue to meet the criteria in this Subsection.

K.  Wet Weather Construction Restrictions.

The Portland Water Bureau manages ground-disturbing activities, as defined and described in Portland City Code Title 10, to protect water quality, forest resilience and fish and wildlife habitat during wet weather.   Projects on City land in the Closure Area must meet Portland City Code Title 10 and Bull Run Special Provisions, as well as county, state and federal regulations about erosion control and in-water work.

1.  Definitions associated to this Subsection include:

a.  Wet season: October 15 to June 15.

b.  Dry season: June 16 to October 14.

c.  Wet weather: Periods of wet, rainy conditions that can occur during the wet season or dry season.  Indices defining wet weather in the Closure Area are provided in Portland Water Bureau standard operating procedures.

d.  Ground-disturbing activities: As defined in Portland City Code Title 10, any activity that exposes soil.

e.  Bull Run Special Provisions: Portland Water Bureau standard contract specifications specific to the Bull Run Watershed Closure Area.

f.  High-hazard activities: Activities that occur in an area that has high potential to deliver sediment to a waterbody, or high potential to compact the soil in a way that would inhibit revegetation and recovery.  Typically, this includes areas close to water bodies, areas on steep or unstable slopes and areas prone to landslides.

g.  Low-hazard activities: Activities that occur in an area that has low potential to deliver sediment to a waterbody or compact the soil in a way that would inhibit revegetation and site recovery.

Guidance for implementing these requirements and further detail on definitions used in this Subsection are provided in Portland Water Bureau standard operating procedures.

2.  Projects on City land in the Closure Area must avoid ground-disturbing activities during the wet season, to the extent practical.

3.  High-hazard activities, as defined in Section 21.36.050, are prohibited during the wet season, unless the Administrator authorizes an exception.

a.  Exceptions may include projects that require work during the wet season, such as:

(1)  Projects that require more than four months of ground-disturbing activity;

(2)  Work that must be done during periods of low water demand; or,

(3)  Work for which other compelling factors require work in the wet season.

b.  All projects, including authorized exceptions, must comply with Title 10 and Bull Run Special Provisions as well as county, state and federal erosion control and in-water work restrictions.  All projects must also develop and implement a wet season erosion control plan adapted to the scope of the project.  The erosion plan must identify how the project will avoid, then minimize or mitigate, during the wet season:

(1)  Erosion;

(2)  Soil compaction;

(3)  Vegetation removal; and,

(4)  Habitat disturbance.

4.  High-hazard activities, as defined in Section 21.36.050, are allowed to proceed during the dry season, with the following restrictions:

a.  If the weather forecast predicts an inch or more of rain in a 24-hour period, or conditions exceed wet weather indices for Bull Run (as   defined in Portland Water Bureau standard operating procedures), project staff must:

(1)  Temporarily stabilize all exposed soils; and,

(2)  Suspend all ground-disturbing activities until wet weather indices indicate drier conditions.

b.  If the Portland Water Bureau expects that the soil will continue to be wet indefinitely until and beyond October 15, all ground-disturbing activity must be suspended for the rest of the construction season.

5.  Low-hazard activities, as defined in Section 21.36.050, are permitted during the dry season and are allowed to continue during the wet season, with the following erosion control requirements in both seasons:

a.  Project staff must inspect and monitor erosion control measures if:

(1)  The weather forecast predicts an inch or more of rain in a 24-hour period; or,

(2)  Conditions exceed wet weather indices (as defined in Portland Water Bureau standard operating procedures).

b.  If inspection shows that any erosion control measure is significantly failing, project staff must take the following actions until the erosion control measures are repaired and functional:

(1)  Temporarily stabilize all exposed soils; and,

(2)  Temporarily suspend all ground-disturbing activities.

L.  Fire Prevention.

The City’s work in the Closure Area sometimes requires using power-driven machinery or engaging in other spark-emitting activities.  This work must comply with federal and state fire season requirements and Industrial Fire Precaution Level requirements, as applied to the Bull Run Watershed Closure Area in the Bull Run Fire Plan.

M.  Emergencies.

1.  The Portland Water Bureau must notify the Commissioner-in-Charge within 24 hours of an emergency causing or threatening significant damage to City land or infrastructure in the Closure Area.  The Portland Water Bureau must post an update to the online quarterly project list within 72 hours of an event that will require emergency response with the likelihood of significant ground disturbance.

2.  After notifying the Commissioner-in-Charge, the Portland Water Bureau is authorized to proceed for up to 30 calendar days to prevent imminent damage to infrastructure, impairment of water quality or habitat, or risk to employee safety.  The Portland Water Bureau must, as part of the emergency response, avoid, then minimize and mitigate, environmental impacts, including providing for erosion control, protection for riparian reserves and compliance with applicable BMPs.

3.  If the emergency response is expected to last longer than 30 calendar days, the Portland Water Bureau must prepare a Project Impact Assessment and Mitigation Summary to guide further action.  Mitigation must include the applicable requirements in Subsections 21.36.050 H, I, J and K.  The Portland Water Bureau must provide an opportunity for members of the public to request notification about a specific emergency response with an expected duration of more than 30 calendar days. Members of the public who request notice for an individual emergency response will be considered a stakeholder for that emergency. The Project’s Impact Assessment and Mitigation Summary must be posted online, and the Portland Water Bureau must notify stakeholders.

4.  If an ordinance is required to authorize funding or contracting for the emergency response and the response lasted less than 30 calendar days, the measures taken to avoid, then minimize and mitigate, environmental impacts must be described in the ordinance. If an ordinance is required and the emergency response lasts longer than 30 calendar days, a Project’s Impact Assessment and Mitigation Summary, as defined in Subsection 21.36.050 G., must be included as ordinance exhibits.

5.  If the situation creating the emergency requires a multi-year capital planning and design project to fully resolve, the comment, objection and appeal processes described in Subsection 21.36.050 F. are required.

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